People v. Stupka

• Decision Date: 25 March 1992
• Docket Number: No. 2-90-0833,2-90-0833
• Citation: 168 Ill.Dec. 668,589 N.E.2d 1068,226 Ill.App.3d 567
• Parties: , 168 Ill.Dec. 668 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Matthew STUPKA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1068

589 N.E.2d 1068

226 Ill.App.3d 567, 168 Ill.Dec. 668

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Matthew STUPKA, Defendant-Appellant.

No. 2-90-0833.

Appellate Court of Illinois Second District.

March 25, 1992.

Rehearing Denied April 28, 1992.

G. Joseph Weller, Deputy Defender, Kathleen J. Hamill, Office of State Appellate Defender, Edward G. Moorman, Alton, Theodore A. Gottfried, App. Dfr., Office of State Appellate Defender, Springfield, for Matthew Stupka.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Martin P. Moltz, State's Atty. Appellate Prosecutor, Elgin, for the people.

Justice UNVERZAGT delivered the opinion of the court:

After a bench trial on June 4, 1990, defendant, Matthew Stupka, was convicted of unlawful delivery of a controlled substance (cocaine) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(a)(2)), a Class X felony. On July 3, 1990, the trial court sentenced him to six years' imprisonment and imposed a fine of $2,900. Defendant appeals, contending that he was not proved guilty of the offense beyond a reasonable doubt because, he argues, the evidence at trial did not show that there was a completed delivery of the cocaine. We affirm.

The evidence adduced at trial shows that, on the afternoon of August 2, 1989, undercover agent Mark Maton of the Illinois State Police made arrangements with defendant at the Du Page Inn to purchase $1,200 worth of cocaine near a McDonald's restaurant in Woodridge, Illinois. Maton and defendant drove to the McDonald's where the transaction was to take place. Maton testified that, on the way, defendant produced a blue snow seal containing cocaine that was apparently used for sampling. Defendant stated that the cocaine they were about to buy was of high quality and referred to it as "rock." They discussed the possibility of future transactions. They arrived at McDonald's at about 5:45 p.m. and parked north of a silver Lincoln Continental located in the east parking lot.

Maton and defendant went inside the restaurant. Defendant asked for the $1,200; he wanted to go into the parking lot and complete the transaction. Maton said he wanted to see the cocaine before giving defendant the money. After purchasing some food, Maton and defendant walked to the Lincoln, and defendant opened the passenger door. In the car was a man later identified as Daniel Larmon. Larmon asked for the money, but Maton wanted to see the cocaine first. Larmon had a paper bag in his hand and said that the cocaine was inside the bag. Maton gave the money to defendant, who gave it to Larmon. Larmon handed a McDonald's bag to defendant who, in turn, gave it to Maton. When Larmon was handing the bag to defendant, Larmon said to throw the McDonald's bag in the garbage can and they would see the cocaine.

Maton stepped back, and Larmon put his vehicle in reverse, whereupon Maton activated the arrest signal. After the suspects were arrested, the cocaine was retrieved a moment later by an agent of the Du Page Metropolitan Enforcement Group (DUMEG), Joe H. DeAnda, who testified he had been told of its location by Maton. The cocaine was located in a styrofoam container in the first bag he found in the garbage can about eight feet in front of Larmon's vehicle.

On cross-examination, Maton testified that when he took the bag from defendant, Maton looked inside and did not find any cocaine and he acknowledged that no controlled substance was actually delivered to him at the time he activated the prearranged arrest signal. He maintained, however, that it had been constructively delivered.

On redirect examination, Maton stated that the reason he pushed the "panic" button was because Larmon had put the car in reverse and was attempting to leave the parking lot. On recross-examination, he said that defendant was arrested prior to locating the controlled substance.

Larry Wiess, another DUMEG agent who had followed defendant and Maton to the McDonald's location, stated that when he pulled into the parking lot, he saw Larmon, the driver of the Lincoln, standing in front of his vehicle and in front of the garbage can. Wiess later observed Maton and defendant talk to Larmon from the passenger side of the vehicle as he waited for the arrest signal. After the arrest, Wiess observed DeAnda retrieve, from the same garbage can next to which Larmon had been standing, a bag containing a styrofoam container in which there was a baggie containing a white powder later identified as cocaine. He also identified the snow seal that was taken from defendant after the arrest.

The chain of custody of the physical evidence was established, and Sheila Duggan, a forensic scientist, testified that she identified the larger amount of the powder as containing 27.72 grams of cocaine.

Defendant testified that he went to McDonald's with Maton. Defendant recognized Larmon in the Lincoln. When they exited the restaurant and approached the Lincoln, Maton gave him the money, and defendant threw it on the front seat of the Lincoln. He grabbed a McDonald's bag from the seat and walked to the passenger side of Maton's car and got in. He denied that Maton had any conversation with Larmon. Defendant testified that when he got into Maton's car and Maton got in on the other side, Maton asked, "[I]s it in there?" Defendant said yes.

Defendant stated that Maton had told him there was $1,200 for the purchase of the cocaine. Defendant was not sure whether Larmon told him that the cocaine was in the McDonald's bag. Defendant acknowledged that he had earlier discussed the transaction to sell cocaine to Maton for the price of $1,200, and, on instructions from Larmon, he directed Maton to McDonald's, but he denied that he knew with certainty that Larmon would be there with the cocaine. Defendant assumed that the cocaine was in the bag. He acknowledged that he had obtained small amounts of cocaine from Larmon before.

The State argued that it had presented evidence satisfying the elements of the offense, including knowledge and delivery of the controlled substance and that defendant's participation made him liable under an accountability theory. The critical argument presented to the court was whether there was a delivery. The State cited the statutory definition of "delivery": deliver or delivery means "the actual, constructive or attempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship" (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1102(h)). The State maintained that, at the very least, there was an attempted transfer of cocaine; the State also argued that there was a constructive delivery.

The trial court found that the State had proved every element of the offense. The court added, "At best, it is an attempt to transfer." Additionally, the court noted that Maton had testified that Larmon told him "exactly what to do, where the cocaine was" and reiterated that the State had proved every element of the offense beyond a reasonable doubt.

Defendant first argues that there was no constructive transfer of possession of the drug because, even if the officer was to be believed, he was only told where to find the cocaine. Defendant posits that, at the time of the incident, the cocaine was in a garbage can and had not been placed in the exclusive and immediate control of Maton so as to constitute constructive transfer. He asserts that there was an incompleted offense of unlawful delivery. Relying on the trial court's comments, defendant maintains that, at best, there was an attempted transfer and the facts would support only a conviction of the offense of attempted unlawful delivery of a controlled substance under the attempt statute (Ill.Rev.Stat.1989, ch. 38, par. 8-4), an inchoate offense for which he was not specifically charged and which, in this case, would be a Class 1 felony carrying a lesser sentence. Defendant therefore prays for a reversal of his conviction, or, alternatively, for a new trial or a resentencing.

We believe that the evidence sustains the unlawful delivery conviction on either a theory of an attempted transfer or a constructive transfer of possession. On appeal, the reviewing court will examine all of the evidence in the light most favorable to the prosecution, and the relevant question is whether, as to the crime charged, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Furby (1990), 138 Ill.2d 434, 455, 150 Ill.Dec. 534, 563 N.E.2d 421.

We also observe that, in reviewing the decision of a trial court, the controlling question is the correctness of the trial court's conclusion, not the validity of its rationale. It is the judgment and not what may have been said by the court that is being appealed, and the court's judgment may be sustained on any ground supported by the record. (People v. Ortiz (1988), 170 Ill.App.3d 1083, 1089, 121 Ill.Dec. 2, 524 N.E.2d 1050; People v. Wiley (1988), 169 Ill.App.3d 140, 145, 120 Ill.Dec. 433, 523 N.E.2d 1344; see also People v. Pitsonbarger (1990), 142 Ill.2d 353, 374, 154 Ill.Dec. 562, 568 N.E.2d 783 (where evidence was sufficient to convict defendant of crime charged, supreme court would not speculate that verdict was for a crime not charged in indictment); People v. Dare (1986), 140 Ill.App.3d 413, 419, 94 Ill.Dec. 911, 488 N.E.2d 1304 (reasons for trial court's judgment of conviction not binding on reviewing court, and conviction was sustained where evidence was sufficient notwithstanding trial court's reasoning).

The evidence was sufficient to show that defendant effectuated a constructive transfer of possession of the drug. Constructive possession of a controlled substance exists when there is no actual personal present control over the substance, but there is an intent and capacity to maintain control and dominion over it. (...