People v. Scott

Decision Date05 March 1987
Docket NumberNo. 5-86-0039,5-86-0039
Citation105 Ill.Dec. 916,152 Ill.App.3d 868,505 N.E.2d 42
Parties, 105 Ill.Dec. 916 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert Lewis SCOTT, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Daniel M. Kirwan, Deputy Defender, Dan W. Evers, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellant.

John P. Coady, State's Atty., Taylorville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Office of State's Attys., Appellate Prosecutor, Mt. Vernon (Neil F. Flynn, Springfield, of counsel), for plaintiff-appellee.

Presiding Justice KARNS delivered the opinion of the court:

Defendant, Robert Lewis Scott, appeals from a judgment of conviction entered on a jury verdict in the circuit court of Christian County finding him guilty of the offense of unlawful possession of a controlled substance in violation of section 402(b) of the Illinois Controlled Substances Act (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1402(b)). He was sentenced to two and one-half years of imprisonment. Defendant was also charged with obstruction of justice, but no verdict was returned.

On May 9, 1985, at approximately 1:30 a.m., emergency personnel were dispatched to the apartment shared by defendant and Shannon Morganson. Ms. Morganson was lying unconscious on a sofa bed with no pulse or respiration. When asked what had happened, defendant stated he thought Ms. Morganson had "mainlined" an overdose of cocaine. According to defendant, Ms. Morganson had gotten up to fix a drink. Defendant heard a noise in the kitchen and found her "flopping around" on the floor with a needle stuck in her arm. Defendant removed the needle and picked up a bag of white powder which he believed to be cocaine from the kitchen table and flushed them down the toilet. He then picked Ms. Morganson up, laid her on the bed, and called for emergency aid when she stopped breathing. Ms. Morganson died thirty-one hours later of a cocaine overdose. The autopsy revealed Ms. Morganson had been a drug user.

A search warrant for the apartment was obtained that same morning. Several bottles containing procaine and tetracaine (not controlled substances) were found in various locations throughout the apartment along with a knotted nylon stocking and a bag of hypodermic syringes. In the bottom right-hand drawer of one of the dressers in the bedroom, the officers discovered a metal box and an off-white powder lying in a pile on the bottom of the drawer. The powder consisted of 1.2 grams of cocaine and procaine mixed together. In the box was a bottle containing tetracaine, a knotted nylon stocking, a knotted shoestring, a small cut straw with a residue of cocaine inside, various papers, defendant's Florida driver's license and a bank club card issued to defendant. Articles of both men's and women's clothing were also found in the drawer. Defendant denied any knowledge of illegal drugs being present in the apartment. He further stated the metal box was his but that Ms. Morganson stored bills in it and he did not know its location. He also testified the drawers on the right-hand side of the dresser in which the cocaine was found were used only by Ms. Morganson.

Defendant argues on appeal the State failed to prove beyond a reasonable doubt that he had knowledge of and was in possession of cocaine to find him guilty of the crime of unlawful possession of a controlled substance.

To support a conviction for the unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that defendant had knowledge of the controlled substance and that it was in his immediate and exclusive control. (E.g., People v. Burke (4th Dist.1985), 136 Ill.App.3d 593, 599, 91 Ill.Dec. 328, 333, 483 N.E.2d 674, 679; People v. Jones (5th Dist.1982), 105 Ill.App.3d 1143, 1148, 62 Ill.Dec. 25, 28, 435 N.E.2d 823, 826.) Possession may be established by evidence of actual physical possession or constructive possession. (E.g., People v. Jones (5th Dist.1982), 105 Ill.App.3d 1143, 1148, 62 Ill.Dec. 25, 28, 435 N.E.2d 823, 826.) Actual possession is proved by testimony which shows defendant exercised some form of dominion over the unlawful substance, such as trying to conceal it or throwing it away. (People v. Howard (4th Dist.1975), 29 Ill.App.3d 387, 389, 330 N.E.2d 262, 264.) Constructive possession exists without actual personal present dominion over the controlled substance but with an intent and capability to maintain control and dominion over it. (People v. Valentin (1st Dist.1985), 135 Ill.App.3d 22, 31, 89 Ill.Dec. 608, 615, 480 N.E.2d 1351, 1358.) As a result, narcotics being found on the premises under the control of defendant gives rise to an inference of knowledge and possession by him which alone may be sufficient to sustain a conviction for unlawful possession of controlled substances. (People v. Nettles (1961), 23 Ill.2d 306, 308-09, 178 N.E.2d 361, 363, cert. denied (1962), 369 U.S. 853, 82 S.Ct. 939, 8 L.Ed.2d 12; People v. Jones (5th Dist.1982), 105 Ill.App.3d 1143, 1148, 62 Ill.Dec. 25, 28, 435 N.E.2d 823, 826.) Mere access by other persons to the area where drugs are found is insufficient to defeat a charge of constructive possession. (People v. Rush-Bey (5th Dist.1987), 152 Ill.App.3d 17, 23, 105 Ill.Dec. 187, 191, 503 N.E.2d 1193, 1197.) Moreover, exclusive possession does not mean that possession may not be joint. (People v. Embry (1960), 20 Ill.2d 331, 335-36, 169 N.E.2d 767, 769; People v. Burke (4th Dist.1985), 136 Ill.App.3d 593, 599, 91 Ill.Dec. 328, 333, 483 N.E.2d 674, 679.) If two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession. People v. Valentin (1st Dist.1985), 135 Ill.App.3d 22, 32, 89 Ill.Dec. 608, 615, 480 N.E.2d 1351, 1358.

Whether defendant had knowledge and possession are questions of fact to be resolved by the jury. Its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt as to guilt. (People v. Rush-Bey (5th Dist.1987), 152 Ill.App.3d 17, 22, 105 Ill.Dec. 187, 190, 503 N.E.2d 1193, 1196.) We see no reason to disturb the jury's findings in this instance.

It is undisputed that the apartment from which the cocaine was recovered on May 9, 1985, was under defendant's control. It is also undisputed that Ms. Morganson died of a cocaine overdose and that defendant flushed a needle retrieved from Ms. Morganson's arm and a bag containing white powder which he believed to be cocaine from the kitchen down the toilet. What is disputed is defendant's knowledge and possession. Defendant denied knowledge of the presence of any illegal drugs or instruments used in administering narcotics in his apartment. The jury, however, is not required to believe defendant. See People v. Burke (4th Dist.1985), 136 Ill.App.3d 593, 600, 91 Ill.Dec. 328, 333, 483 N.E.2d 674, 679.

Defendant was aware Ms. Morganson was using drugs. He claims he argued with her over her use of illegal drugs a few weeks before she died. A friend of Ms. Morganson's testified, however, defendant told her he gave Ms. Morganson her first shoot of cocaine but thereafter it was her choice to continue using the drug. Needles used for administering drugs were found lying under a table next to the sofa bed where def...

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