Opinion
1-20-0783
12-16-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CLARK, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 19 CR 4172 Honorable William Raines, Judge, presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the court. Justices Delort and Lyle concurred in the judgment.
ORDER
CONNORS, PRESIDING JUSTICE
¶ 1 Held: Defendant's conviction for possession of a controlled substance with intent to deliver is affirmed over his argument that the evidence presented by the State was insufficient to prove the corpus delicti of the offense.
¶ 2 After a bench trial, defendant Robert Clark was convicted of possession of a controlled substance (cocaine) with intent to deliver (720 ILCS 570/401(c)(2) (West 2018)) and sentenced to six years' imprisonment. On appeal, he contends his conviction should be reversed because the evidence was insufficient to satisfy the corpus delicti rule, i.e., that the only evidence that he possessed the cocaine was his own statement to the police. For the reasons below, we affirm.
¶ 3 Following the execution of a search warrant of an apartment residence, defendant, who had prior convictions for felony burglary, was charged as an armed habitual criminal with possession of a handgun and with felony possession of a firearm and bullets, possession of a handgun without a valid firearm owner's identification (FOID) card, and possession with intent to deliver at least one but less than 15 grams of cocaine.
¶ 4 At trial, Sergeant Nicholas Cortesi testified that, on the afternoon of March 1, 2019, he supervised eight to ten officers in executing a search warrant at an apartment unit on the 7100 block of South Washtenaw Avenue in Chicago. During surveillance of the building, he saw an individual walk from the building to a vehicle which he suspected belonged to "someone [the officers] were waiting for." Cortesi followed the vehicle for about a block, curbed it, and effected a traffic stop. The driver was Iris Jones. Cortesi told Jones he had a warrant to search her apartment. Jones was detained at the scene and then transported by police back to the building.
¶ 5 Jones gave the officers one or more keys to her apartment. The officers used force to enter the building, but were able to access the first-floor apartment using keys she provided. Jones led the officers to crack cocaine located in a purse in the closet of a bedroom and alerted them to the presence of a handgun, which they recovered. The officers also recovered "currency"; "narcotics packaging, including a digital scale"; and "proof of residency." While the police were in the unit, Jones received one or more calls from defendant. During one such call, Cortesi took her phone and spoke with defendant, who then came to the building, where he was detained by police and Mirandized. Cortesi testified that defendant admitted to "possessing, owning" the narcotics and the handgun and to having owned the handgun for about 20 years.
¶ 6 Cortesi confirmed that, before trial, he viewed video footage from a body camera he wore on the date of the search. A portion of the video was played in court and admitted as an exhibit.The video is included in the record on appeal and depicts plain-clothed officers speaking with defendant outside a building. Defendant is handcuffed. An officer tells him that there is a search warrant for the first floor of "your apartment" and Mirandizes him. The officer states that the search warrant is for cocaine and that cocaine has been recovered with evidence of a drug operation. Defendant denies running a drug operation, but says he knows of "spots" to "sit down" and "make a few dollars." When asked, "Does the cocaine we recovered in there belong to you?", defendant states, twice, "It's mine." Asked whether the gun is his, defendant affirms that it is and volunteers that he has had it for "20 years" and that "it probably don't even shoot." The officer then asks, "What kind is it?"; defendant responds ".38 long."
According to defendant's opening brief submitted to this court, "[t]he portion of Cortesi's body camera footage that was presented at trial *** begin[s] at 00:53:32" of the subject video file. Because the State did not, in its brief, refute this representation, we reviewed the indicated portion of the video.
¶ 7 On cross-examination, Cortesi testified that, as he and other officers surveilled the property for a white Cadillac or a gray Chrysler, he saw an individual exit the building and leave in a gray Chrysler parked nearby. Cortesi followed the vehicle, curbed it, and turned on his body-worn camera. The driver, Jones, was detained and "eventually" handcuffed, but was not charged with any crime. Jones consented to a search of the vehicle. No contraband was recovered from the Chrysler, and another officer drove it back to the apartment building. Police escorted Jones inside the residence and removed her handcuffs.
¶ 8 As the officers searched the apartment, Jones was "cooperative" and "agreed to help out and show [them] where the narcotics could be recovered and found." She directed them to a purse in a bedroom closet where the police found the crack cocaine, currency, and paraphernalia; Cortesi believed the handgun was found "on" a dresser in the same bedroom. Bullets were also recovered. When defendant telephoned Jones, Cortesi took the phone, identified himself as a police officer, and told defendant, "I'm at your girlfriend's residence" and "she needs you here."
¶ 9 Upon defendant's arrival at the building, other officers told Cortesi that defendant was being detained outside. Cortesi spoke with defendant outside the building. While handcuffed, defendant said the gun recovered inside was his. No other weapons were recovered during the search, and Cortesi did not show defendant the gun that had been found. Asked whether any testing was performed on any of the contraband recovered, Cortesi testified, "No. The only thing that may have been tested would be the gun." Some of the currency was inventoried.
¶ 10 Officer Terrance Huels testified he assisted in searching the residence. Huels identified a document shown to him by the State as the Peoples Gas bill that he recovered from the apartment. Officer Ronald Kaczmarek, the assigned recovery officer, inventoried and logged the gas bill. The envelope containing the bill bore no postmark and was open. Defendant's name and the address of the apartment building and "Floor 1" were visible through a window on the envelope.
¶ 11 At the request of the defense, the State confirmed on the record that no postmark appeared on the envelope containing the bill, and the envelope's contents were entered as a group exhibit over defendant's objection. The record on appeal includes a non-postmarked envelope containing the gas bill.
¶ 12 On cross-examination, Huels testified he found the gas bill" [i]n a drawer in a bedroom." He believed that there was more than one bedroom in the apartment, but did not know how many bedrooms there were.
¶ 13 Officer Thomas Beyer testified that, while searching the apartment with Huels, he found a black revolver with a long barrel in a bedroom dresser drawer. Beyer was documented as the "finding officer" for the gun and called Kaczmarek to inventory it. A Peoples Gas bill bearing defendant's name was found in the same bedroom. Crack cocaine was also found, but not in the same place where Beyer found the gun.
¶ 14 On cross-examination, Beyer testified he believed he recovered the gun from the top drawer of the dresser in the bedroom he was searching. He believed the gun was covered with papers or other items before it was found. He did not observe any unique identifiers on the gun. Bullets were also recovered; he believed they were found in the gun and did not recall whether additional bullets were found in the same drawer as the gun. He agreed that the Peoples Gas bill recovered was found in an envelope that had already been opened.
¶ 15 Kaczmarek testified he was the recovery or evidence officer and was responsible for inventorying all evidence that was recovered, once it was photographed by another officer. The evidence found included a black ".38 long" revolver in the top dresser drawer in the bedroom and, in a brown purse, crack cocaine, a digital scale, and "a bundle of" U.S. currency. He followed standard protocol when recovering and inventorying the evidence. The drugs were sealed and sent to the Illinois Crime Lab.
¶ 16 On cross-examination, Kaczmarek testified that Jones led the officers to the bedroom where the gun was found and that it was recovered from the top drawer of a dresser. Bullets were recovered in the drawer to the left of that in which the gun was found. Kaczmarek, wearing gloves, recovered the gun and placed it in a "gun envelope." He testified that" [a] ll weapons get test fired by the Chicago Police [,]" but did not know whether the gun was sent for any other testing.
¶ 17 Kaczmarek further testified that defendant "showed up on the scene" outside the building and that he "told someone that there was a [.]38 long *** somewhere inside the apartment." Kaczmarek agreed the cocaine and U.S. currency were found in a purse in a closet in the "same room" where the gun was found. Kaczmarek did not recall seeing any "male" clothing in the closet, but did recall "female" clothing. The drugs were inventoried, bagged, sealed, and sent for laboratory testing.
¶ 18 The parties stipulated that, if called, forensic scientist Dori Lewis would testify that she worked for the Illinois State Police Crime Lab and that the suspected narcotics weighed 12.7 grams and tested positive for the presence of cocaine. Counsel for the defense also stipulated as to "the complete chain of custody" of the narcotics. The parties further stipulated to the entry of certified copies of two of defendant's prior convictions for burglary.
¶ 19 Defendant moved for a directed finding of not guilty, arguing that, although he admitted ownership, Cortesi had induced him to come to the apartment and that the evidence of ownership and residency, viewed in the light most favorable to the State, was too weak to support a finding that he constructively possessed the contraband recovered. After argument by the State, the court denied defendant's motion.
¶ 20 In closing arguments, defense counsel noted that the gas bill was dated "August of 2018." The court sustained the State's objection as to the bill's date, noting the date "was never presented as evidence" and "was not presented to this Court." Counsel argued that the bill had, itself, been admitted as an exhibit, but the trial court stated, "I don't have it up here." Counsel further argued that no other evidence of defendant's residency had been introduced; that none of the evidence linked him to the contraband; and that, because he was not shown to have exercised dominion and control over the area, the State had not proved beyond a reasonable doubt that he had constructive possession of any of the contraband recovered. Counsel maintained that there was no evidence that the gun defendant admitted to owning was the gun recovered during the search.
¶ 21 The State argued that Jones was a resident of the apartment and that she consented to the search. The State pointed out that defendant arrived on the scene, admitted he sold drugs, "knew exactly what was in that house and he used it to make himself some money [,]" and admitted to owning both the cocaine and the gun.
¶ 22 The court found defendant guilty on all counts. The court found credible the testimony of all three officers. The court noted that defendant's confession was "all captured on body cam"; he waived his Miranda rights, admitted ownership of the gun and described it, and "admitted that he makes some cash because he sells [drugs] on the side." The court also noted that Kaczmarek testified a gun was recovered, photographed, and sent to the police department lab for testing. Further, the parties stipulated that the forensic scientist would have testified that the narcotics found tested positive for cocaine. Referring to the gas bill, the court noted that Huels testified he "found proof of residency in the bedroom with the defendant's name." The court reiterated its refusal to consider the date on the gas bill:
"Although there was some conversation and an objection to the Peoples Gas bill, which is People's Exhibit No. 2, the defendant's name on it, for one, [at the] address [on] *** Washtenaw Avenue. There was no testimony presented to this Court the date on the gas bill located inside the envelope. I'm not going to consider that. It was not evidence represented to this Court. I find the proof of residency and Officer Huels' testimony to be credible."
The court revoked defendant's bond and ordered a presentence investigation (PSI) report.
¶ 23 Defendant's PSI report stated that Jones had been his girlfriend for four years, but indicated that he had lived with his mother since 1995 at an address on the 6500 block of South Rockwell Street, where he intended to return after his release. The PSI report listed defendant's prior convictions, including for burglary in each of the years 2009, 2010, and 1992.
¶ 24 On October 28, 2019, defendant filed a "motion for new trial and in arrest of judgment." In the course of several motion hearings, defense counsel clarified the motion was directed solely to a reversal of the guilty finding on the armed habitual criminal count, because the sentence would have to be served at 85%, compared with 50% for the other charges. Counsel conceded that the State need not show the handgun found was functional in order to sustain that conviction, but argued that testing would, at least, have shown that the gun the officers testified they recovered was in fact a gun, and that the State had not introduced the gun, a photograph of the gun, or its serial number as evidence at trial.
¶ 25 On January 29, 2020, the court, having reviewed the trial transcript, reversed its finding of guilty on all of the weapons charges, reasoning that there had been no stipulation as to the recovery of the gun or its chain of custody. The court noted that no photographic or video evidence depicting the gun had been admitted, nor had the officers, in their testimony, identified the specific gun found. On the sole remaining charge, possession of the cocaine with intent to deliver, the court sentenced defendant to six years' imprisonment, to be served at 50% with credit for time actually served.
¶ 26 On June 30, 2020, defendant filed a motion for leave to file a late notice of appeal, which this court allowed on July 6, 2020.
¶ 27 On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of possession of a controlled substance with intent to deliver because the sole evidence of his guilt was his extrajudicial statement to the police. Specifically, he argues that, by failing to introduce sufficient independent evidence to corroborate his statement that the narcotics were his, the State did not establish the corpus delicti of the offense.
¶ 28 When a defendant challenges the sufficiency of the evidence, the reviewing court must consider whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); People v. Cooper, 194 Ill.2d 419, 430-31 (2000)). "That standard applies whether the evidence is direct or circumstantial and does not allow this court to substitute its judgment for that of the trier of fact on issues that involve the credibility of the witnesses and the weight of the evidence." People v. Jones, 2019 IL App (1st) 170478, ¶ 24. We will not reverse a conviction unless we find the evidence so improbable or unsatisfactory so as to raise a reasonable doubt of the defendant's guilt. People v. Wright, 2017 IL 119561, ¶ 70.
¶ 29 To sustain defendant's conviction for possession of a controlled substance with intent to deliver, the State was required to prove that (1) he had knowledge of the presence of the cocaine, (2) the cocaine was in his immediate possession or control, and (3) he intended to deliver it. 720 ILCS 570/401(c)(2) (West 2018); see People v. Robinson, 167 Ill.2d 397, 407 (1995).
¶ 30 In this court, defendant does not challenge the specific elements of the offense. Rather, he argues the State failed to introduce sufficient independent evidence to corroborate his confession that the narcotics were his, and, thus, failed to satisfy the corpus delicti rule.
¶ 31 The law of Illinois requires proof of two distinct propositions or facts beyond a reasonable doubt: (1) that a crime occurred (the corpus delicti); and (2) that the person charged committed the crime. People v. Sargent, 239 Ill.2d 166, 183 (2010). The corpus delicti'rule requires that evidence independent of the defendant's confession show that a crime was actually committed. People v. Furby, 138 Ill.2d 434, 450 (1990); see also People v. Lara, 2012 IL 112370, ¶ 17 ("In general, the corpus delicti cannot be proven by a defendant's admission, confession, or out-of-court statement alone."). "The amount or nature of independent corroborative evidence required by the corpus delicti rule is 'far less' than that needed to prove guilt beyond a reasonable doubt." People v. Underwood, 2019 IL App (3d) 170623, ¶ 11 (quoting Lara, 2012 IL 112370, ¶ 45). Stated differently, the State need only show "a loose tendency to 'connect'" the corroborating evidence and the details of the confession. Lara, 2012 IL 112370, ¶ 32 (quoting People v. Perfecto, 26 Ill.2d 228, 229 (1962)).
¶ 32 After reviewing the record, we find the evidence presented by the State, independent of defendant's confession, established the corpus delicti of the narcotics charge-possession of cocaine with intent to deliver-beyond a reasonable doubt. The State presented evidence that officers recovered from a purse 12.7 grams of crack cocaine. The officers recovered, from the same purse, a bundle of currency, as well as narcotics paraphernalia, including "packaging" and a digital scale. See People v. Beverly, 278 Ill.App.3d 794, 799 (1996) (an intent to deliver narcotics may be proved by circumstantial evidence, primarily a finding of drugs in volumes greater than those consistent with personal use); Robinson, 167 Ill.2d at 408 (other circumstantial evidence of intent to deliver includes the possession of cash in large amounts; the possession of drug paraphernalia, police scanners, weapons, scales, or cellular phones; and the manner in which the narcotics are packaged). Taken together, the testimony of the officers and the forensic scientist establishes that the drug offense was actually committed. See id. This evidence has, at least, "a mere 'correspond[ence] with the circumstances' noted in the confession." (Alteration in Lara) Lara, 2012 IL 112370, ¶ 32 (quoting Perfecto, 26 Ill.2d at 229).
¶ 33 The State also proved defendant committed the offense. The record shows that, during the execution of the search warrant, defendant called Jones, and, when told by Officer Cortesi that his "girlfriend's" apartment was being searched, he arrived at the building, demonstrating that he knew Jones and implying that they were romantically involved and that he was familiar with the residence. While speaking with officers, he twice admitted to owning the cocaine found in the apartment and also stated that he knew of "spots" to "sit down" and "make a few dollars[,]" admitting he engaged in drug sales. Thus, the evidence sufficed for a reasonable trier of fact to conclude beyond a reasonable doubt that defendant knowingly possessed the cocaine with intent to deliver.
¶ 34 Nevertheless, defendant argues that the State presented no independent evidence of possession and thus that the corpus delicti rule is not satisfied. He contends that because the cocaine was not found in his immediate possession and control-an essential element of the crime-the State was required to prove his "constructive possession" of the cocaine and that the State failed to do so.
¶ 35 "The corpus delicti comprises the occurrence of the injury or loss and its causation by criminal conduct; 'the identity of the accused as the offender, the ultimate issue, is not considered part of the corpus delicti.' " People v. Strickland, 154 Ill.2d 489, 522 (1992) (quoting Furby, 138 Ill.2d at 446). "Accordingly, there is no requirement that the defendant's identity as the offender be corroborated by evidence apart from his own extrajudicial statements." Strickland, 154 Ill.2d at 522-23.
¶ 36 The State may prove the element of criminal possession by showing that the defendant had either "actual" or "constructive" possession of the contraband at issue. People v. Walker, 2020 IL App (1st) 162305, ¶ 20. Actual possession is proved by testimony which shows the defendant exercised some form of dominion over the contraband. People v. Love, 404 Ill.App.3d 784, 788 (2010). Constructive possession is proved by showing the defendant (1) had knowledge of the contraband and (2) exercised immediate and exclusive control over the area where it was found. Walker, 2020 IL App (1st) 162305, ¶ 20.
¶ 37 However, in this case, after the police found the cocaine and paraphernalia during their search, defendant confessed that the drugs recovered were his and-as the trial court summarized it-"that he makes some cash because he sells them on the side." He therefore admitted the element of possession and described his engagement in illegal drug sales. As noted, where the defendant confesses to a crime, the corpus delicti rule does not require corroborating evidence as to every element of the charge, and, thus, the State's failure to provide corroborating evidence of the specific element of possession does not automatically preclude a finding that the corpus delicti is established. See Lara, 2012 IL 112370, ¶¶ 48, 50. Stated differently, the independent evidence introduced to corroborate a confession that a crime was committed need not be so strong that it alone proves beyond a reasonable doubt the commission of the crime. Id., ¶ 17." 'The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both *** may be considered in determining whether the corpus delicti is sufficiently proved in a given case." (Emphases and omissions in Lara) Id. (quoting Perfecto, 26 Ill.2d at 229). Here, the corroborating circumstances of the evidence recovered correspond with the circumstances related in defendant's confession and establish the corpus delicti of the offense of possession of a controlled substance with intent to deliver.
¶ 38 In reaching this conclusion, we are not persuaded by defendant's reliance on People v. Milan, 2020 IL App (1st) 172181, and Walker, 2020 IL App (1st) 162305. Each case involved this court's reversal of a defendant's conviction for unlawful use of a weapon by a felon, a crime which is not at issue here. Milan, 2020 IL App (1st) 172181, ¶ 1; Walker, 2020 IL App (1st) 162305, ¶ 1. Each defendant had a prior felony conviction, which rendered gun or ammunition ownership illegal as to him, and yet there was evidence that one or more persons other than the defendant possessed or may have possessed the weapon recovered and each defendant produced evidence at trial that he resided elsewhere. Milan, 2020 IL App (1st) 172181, ¶¶ 6-8, 17; Walker, 2020 IL App (1st) 162305, ¶¶ 8, 11, 26. Such facts are absent here.
¶ 39 Indeed, Milan and Walker illustrate the principle, set forth by our supreme court, that the corpus delicti rule requires the State to present independent evidence to corroborate a confession when" [the] confession may be integral to proving the corpus delicti (Sargent, 239 Ill.2d at 183) or "[w]hen a defendant's confession is part of the corpus delicti proof" (Lara, 2012 IL 112370, ¶ 17). The confession to possession of a weapon by a felon, as in Milan and Walker, may well be "integral" to establishing the corpus delicti of that crime, because the mere finding of a gun and ammunition in a household does not establish injury and criminal causation. Rather, the criminality arises from the fact that the defendant, in particular, is barred from possessing the weapon as a former felon.
¶ 40 In contrast, the finding of 12.7 grams of crack cocaine and drug paraphernalia in a residence, as in this case, is proper evidence of the two components of the corpus delicti of the crime charged. As noted, the corpus delicti rule does not require that the defendant's identity as the offender be corroborated by evidence apart from his confession. Strickland, 154 Ill.2d at 522-23. Thus, here, defendant's confession to possession of the contraband was not "integral" to proving the corpus delicti of possession of a controlled substance with intent. Sargent, 239 Ill.2d at 183. The State was therefore not required to present direct independent corroborating evidence of the element of possession.
¶ 41 In light of this conclusion, defendant's implicit challenge to the trial court's finding that the Peoples Gas bill addressed to him at the apartment and recovered in the search was proof of his residency is inapposite. Citing People v. Ray, 232 Ill.App.3d 459 (1992), and People v. Moore, 2015 IL App (1st) 140051, he contends the bill was too old, relative to the date of the search, to support an inference that he had "control" over the area where the drugs were found so as to establish the second element of constructive possession. Walker, 2020 IL App (1st) 162305, ¶ 20. However, the defendants in Ray and Moore, wherein the mail found in the home was deemed too old to support a finding of residency, had not confessed to possessing the contraband, and the corpus delicti rule was not at issue. Ray, 232 Ill.App.3d at 462; Moore, 2015 IL App (1st) 140051, ¶ 32. Rather, in the absence of a confession to possession, the State in those cases was tasked with proving "constructive possession" beyond a reasonable doubt, requiring consideration of whether the defendant had control over the area. Ray, 232 Ill.App.3d at 463; Moore, 2015 IL App (1st) 140051, ¶ 28. Here, defendant confessed to possessing the narcotics found in the apartment and to engaging in their illegal sale, and his control over the premises was therefore not essential for his conviction. For this reason, his further arguments that no evidence aside from the gas bill ties him to the apartment, that he was not there during the search, and that the PSI report lists a different home address are misplaced.
Our review of the bill shows it is dated July 30, 2018.
¶ 42 Defendant also points out that the State presented no physical evidence, such as DNA or fingerprints, tying him to the contraband found. However, to establish the corpus delicti, the State was not required to introduce physical or forensic evidence linking him directly to the crack cocaine. Lara, 2012 IL 112370, ¶ 39 (noting the corpus delicti rule may be satisfied "despite the absence of any physical evidence." (Emphasis in original.)). The testimony presented by the State that the 12.7 grams of cocaine and the drug paraphernalia and cash were found in the apartment established that a crime actually occurred. See id.; see also People v. Hannah, 2013 IL App (1st) 111660, ¶ 29 (noting only a "slight level of evidence [is] necessary to establish the corpus delicti"). ¶ 43 Defendant claims it is "possible" he confessed to protect Jones. However, "the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt." People v. Cline, 2022 IL 126383, ¶ 34 (citation omitted). Nor is this court authorized to reweigh the evidence or to retry defendant. People v. Siguenza-Brito, 235 Ill.2d 213, 228 (2009) ("Rather, in a bench trial, it is for the trial judge, sitting as the trier of fact, to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.") (citations omitted).
¶ 44 For the foregoing reasons, we affirm the judgment of the Circuit Court of Cook County.
¶ 45 Affirmed.