People v. Sherrod, 1-07-0989.

Citation334 Ill.Dec. 368,916 N.E.2d 1256
Decision Date07 October 2009
Docket NumberNo. 1-07-0989.,1-07-0989.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jovan SHERROD, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Patrick F. Cassidy, Asst. Appellate Defender, Chicago, IL, for Defendant-Appellant.

Anita Alvarez, State's Attorney of Cook County, Of counsel: James E. Fitzgerald, Peter Fischer, Heather Fahrenkrog, Asst. State's Attorneys, Chicago, IL, for Plaintiff-Appellee.

Presiding Justice MURPHY delivered the opinion of the court:

After a jury trial, defendant, Jovan Sherrod, was convicted of possession of a controlled substance with intent to deliver and criminal trespass to a vehicle and sentenced to seven years' imprisonment. On appeal, defendant argues that (1) he was not proven guilty beyond a reasonable doubt of possession of a controlled substance with intent to deliver; (2) the State's closing argument denied him a fair trial; (3) the trial court improperly deferred ruling on his motion in limine seeking to bar the State from introducing evidence of his prior convictions; (4) his sentence violated the proscription against double enhancement; (5) he is entitled to a credit against the $2,000 controlled substance assessment; and (6) the mittimus incorrectly reflects the name of the offense of which he was convicted. For the following reasons, we reduce his conviction for possession of a controlled substance with intent to deliver and remand the case for resentencing.

I. BACKGROUND

At trial, Hoathitruc Vo testified that on April 21, 2006, she heard a sound coming from her car, so she pulled over. While she was outside inspecting her car, someone jumped in her car and sped away with it.

Officer Jeffrey Zwit testified that on May 7, 2006, he stopped a white 2006 Toyota Camry that turned right on a red light. The car did not have a license plate, and defendant, who was driving, could not produce a driver's license. Zwit ran the vehicle identification number and discovered that the car was stolen.

Defendant was arrested, and at the police station, Officer Anthony Babicz performed a custodial search. In defendant's pants pockets, Babicz recovered $35 and a clear plastic bag containing 17 knotted clear baggies, which each contained very small, white, rock-like substances. Zwit did not see defendant try to sell these drugs to anyone, nor did defendant have extra baggies or a scale. Testing revealed that the 17 baggies contained a total of 1.8 grams of cocaine.

The jury found defendant guilty of possession of a controlled substance with intent to deliver and criminal trespass to a vehicle.

At defendant's sentencing hearing, the State argued that defendant was subject to mandatory Class X sentencing because of two prior convictions. The trial court sentenced defendant to seven years' imprisonment. Although the court did not specify at the hearing that defendant was being sentenced as a Class X offender, the sentencing order indicates that he was sentenced as a Class X offender. This appeal followed.

II. ANALYSIS
A. Sufficiency of the Evidence

Defendant argues that this court should reduce his conviction to possession of a controlled substance because the evidence was insufficient to prove that he intended to deliver the cocaine that was in his possession. When a court considers a challenge to a criminal conviction based on the sufficiency of the evidence, its function is not to retry the defendant. People v. Milka, 211 Ill.2d 150, 178, 284 Ill.Dec. 380, 810 N.E.2d 33 (2004). Rather, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Woods, 214 Ill.2d 455, 470, 293 Ill.Dec. 277, 828 N.E.2d 247 (2005). A court of review will not overturn the fact finder's verdict unless "the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant's guilt." People v. Maggette, 195 Ill.2d 336, 353, 254 Ill.Dec. 299, 747 N.E.2d 339 (2001).

The elements of unlawful possession of a controlled substance with intent to deliver are: (1) the defendant had knowledge of the presence of the controlled substance, (2) the drugs were in the immediate possession or control of the defendant, and (3) the defendant intended to sell the drugs. 720 ILCS 570/401 (West 2006); People v. Robinson, 167 Ill.2d 397, 407, 212 Ill.Dec. 675, 657 N.E.2d 1020 (1995). "Because direct evidence of intent to deliver is rare, such intent must usually be proven by circumstantial evidence." Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. Factors considered by Illinois courts as probative of intent to deliver include whether the quantity of controlled substance in the defendant's possession is too large to be viewed as being for personal consumption; the high purity of the drug confiscated; the possession of weapons; the possession of large amounts of cash; the possession of police scanners, beepers, or cellular telephones; the possession of drug paraphernalia; and the manner in which the substance is packaged. Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020.

In Robinson, our supreme court noted that "the quantity of controlled substance alone can be sufficient to prove an intent to deliver beyond a reasonable doubt." Robinson, 167 Ill.2d at 410-11, 212 Ill.Dec. 675, 657 N.E.2d 1020. However, that is the case "only where the amount of controlled substance could not reasonably be viewed as designed for personal consumption." Robinson, 167 Ill.2d at 411, 212 Ill.Dec. 675, 657 N.E.2d 1020. Further, as the quantity of controlled substance on the defendant's person decreases, the need for additional circumstantial evidence of intent to deliver increases. Robinson, 167 Ill.2d at 413, 212 Ill.Dec. 675, 657 N.E.2d 1020. "[W]hen a defendant is charged with possession of a controlled substance, in appropriate circumstances, packaging alone" might also be sufficient evidence of intent to deliver. (Emphasis in original.) Robinson, 167 Ill.2d at 414, 212 Ill.Dec. 675, 657 N.E.2d 1020. This court has also noted that when only a small quantity of drugs is found, the "minimum evidence" required to establish the intent to deliver is that "the drugs were packaged for sale, and at least one additional factor tending to show intent to deliver." People v. Blakney, 375 Ill. App.3d 554, 559, 314 Ill.Dec. 77, 873 N.E.2d 1007 (2007), citing People v. Beverly, 278 Ill.App.3d 794, 802, 215 Ill.Dec. 547, 663 N.E.2d 1061 (1996). See also People v. Ballard, 346 Ill.App.3d 532, 282 Ill.Dec. 37, 805 N.E.2d 656 (2004). There is, however, "no hard and fast rule to be applied in every case." Robinson, 167 Ill.2d at 414, 212 Ill.Dec. 675, 657 N.E.2d 1020.

The State argues that the packaging of the controlled substance, alone, is sufficient evidence of defendant's intent to deliver because defendant possessed 17 individual baggies containing a total of 1.8 grams of cocaine. We disagree that these are the "appropriate circumstances" that our supreme court contemplated in Robinson.

Here, no other factors tend to show intent to deliver. No testimony was presented indicating that 1.8 grams of cocaine "could not reasonably be viewed as designed for personal consumption." Robinson, 167 Ill.2d at 411, 212 Ill.Dec. 675, 657 N.E.2d 1020. This is unlike cases where police officers testified as experts as to the packaging, cost, and typical personal usage of controlled substances. See People v. White, 221 Ill.2d 1, 17-18, 302 Ill.Dec. 614, 849 N.E.2d 406 (2006), abrogated on other grounds, People v. Luedemann, 222 Ill.2d 530, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006); Ballard, 346 Ill.App.3d at 535, 282 Ill.Dec. 37, 805 N.E.2d 656; Beverly, 278 Ill. App.3d at 796, 215 Ill.Dec. 547, 663 N.E.2d 1061; People v. Williams, 358 Ill.App.3d 1098, 1103, 295 Ill.Dec. 528, 833 N.E.2d 10 (2005); People v. Jones, 215 Ill.App.3d 652, 654, 159 Ill.Dec. 63, 575 N.E.2d 561 (1991). In fact, in Robinson, the supreme court found that 2.2 grams of PCP and 2.8 grams of cocaine, by themselves, were indicative of personal use. Robinson, 167 Ill.2d at 413, 212 Ill.Dec. 675, 657 N.E.2d 1020. People v. Little, 322 Ill.App.3d 607 615, 255 Ill.Dec. 828, 750 N.E.2d 745 (2001), found that 1.5 grams of cocaine "can reasonably be viewed as being for personal consumption," and in White, the State conceded that 1.8 grams of cocaine packaged in 12 baggies could be consistent with personal use. White, 221 Ill.2d at 17, 302 Ill.Dec. 614, 849 N.E.2d 406.

No evidence was presented as to other factors indicative of intent to deliver. Defendant had only $35 in cash at the time of his arrest, less than half the amount that the defendant in White possessed. White, 221 Ill.2d at 7, 302 Ill.Dec. 614, 849 N.E.2d 406. There was also no evidence as to the purity of the drug confiscated, and defendant did not possess weapons, police scanners, beepers, cellular telephones, or drug-trafficking paraphernalia.

The State argues that the lack of evidence that defendant possessed paraphernalia for personal use supports the conclusion that the cocaine could not reasonably be viewed as being for personal consumption. In White, the court noted that while the defendant was not carrying a pager, weapon, scale, cutting agent, or police scanner, "he was also not carrying any paraphernalia associated with personal use of the cocaine." White, 221 Ill.2d at 20, 302 Ill.Dec. 614, 849 N.E.2d 406. It is not clear, however, whether the court considered the lack of drug-using paraphernalia as evidence of intent to deliver or as simply demonstrating that the lack of drug-trafficking paraphernalia was not especially probative in that case. Furthermore, in Williams, Beverly, and People v. Morgan, 301 Ill.App.3d 1026, 235 Ill.Dec. 355, 704...

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