Opinion
No. 1-11-3211
03-29-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL DELUNA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 C5 50137
Honorable
Colleen Ann Hyland,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Cunningham and Delort concurred in the judgment.
ORDER
¶ 1 Held: We affirmed defendant's conviction for possession of cannabis but corrected the mittimus to reflect the proper amount of fines, fees, and costs to be assessed against defendant. ¶ 2 On March 23, 2010, defendant, Joel Deluna, was charged with possession of cannabis with intent to deliver, possession of cannabis, and driving under the influence. After a one-day bench trial, defendant was found guilty of only the possession of cannabis charge. On appeal, defendant contends that the State failed to prove his guilt beyond a reasonable doubt. Defendant also challenges the amount of fines, fees, and costs assessed against him. ¶ 3 At trial, Illinois State Police Trooper Kiewiet testified that on January 9, 2010, at about 3 a.m., he was on patrol when he responded to a call of someone driving the wrong way down the highway who had eventually stopped their vehicle on the southbound shoulder of Interstate 55 at Wolf Road. When he arrived at that location, Trooper Kiewiet observed an Oldsmobile Bravada SUV (SUV) partially parked on the left shoulder of Interstate 55. Trooper Kiewiet exited his vehicle and approached the SUV with Illinois State Police Master Sergeant Beck, who had arrived to assist at the scene. Trooper Kiewiet looked through the passenger side window of the vehicle and saw defendant, who was the SUV's only occupant, slumped in the driver's seat with his eyes closed and, apparently, asleep. The vehicle was running with defendant's right foot still on the brake pedal. There was no one else present in the vehicle. Trooper Kiewet opened the front passenger door, reached into the vehicle, put it into park, and removed the keys from the ignition. Master Sergeant Beck entered the rear passenger seat to protect Trooper Kiewiet. Trooper Kiewiet smelled the strong odor of alcohol and "raw" cannabis once he opened the door of the SUV. Trooper Kiewiet attempted to wake defendant by yelling at him, but defendant did not respond. Trooper Kiewiet then shook defendant's right arm and defendant awoke. Trooper Kiewiet asked defendant to step out of the vehicle. Defendant exited the SUV from the driver's seat and walked with Trooper Kiewiet to the rear of the vehicle. Master Sergeant Beck then alerted Trooper Kiewiet that there was a large gallon-sized Ziplock bag filled with cannabis inside of a larger dark-colored plastic garbage bag on the backseat of the SUV. From his vantage point, Trooper Kiewiet could not see the garbage bag, but was able to observe that a small amount of cannabis had spilled onto the rear passenger seat of the SUV. ¶ 4 Trooper Kiewiet arrested defendant and transported him to the Forest View police station. The trooper later discovered the SUV was not registered in defendant's name. The cannabis remained in the vehicle until the Illinois Department of Transportation towed the vehicle to the Forest View police station. A custodial search of defendant at the station recovered $500 in cash, but no cannabis, drug paraphernalia, or other contraband. A search of the SUV was conducted by Master Sergeant Beck at the police station, where she recovered the cannabis, then took it to the processing area and weighed it. The cannabis was then secured in the back of Trooper Kiewiet's squad car and transported to Chicago district headquarters in Des Plaines, Illinois. Trooper Kiewiet could not recall whether there were other items inventoried from the SUV, however, Master Sergeant Beck testified that, aside from the cannabis, she also found four pairs of shoes, five pairs of pants, a gym bag containing clothing, and a book bag. ¶ 5 It was stipulated that Fella Johnson, a forensic chemist with the Illinois State Police crime lab and expert in forensic chemistry, would testify that she tested the substance recovered from defendant's SUV and determined that it weighed 423.2 grams and tested positive for the presence of cannabis. ¶ 6 The trial court found it was reasonable to infer that defendant had knowledge and constructive possession of the cannabis found on the backseat of the SUV, and found him guilty on the charge of possession of 30 grams to 500 grams of cannabis. ¶ 7 On October 26, 2011, the trial court sentenced defendant to two years' imprisonment, with forty days' credit for presentence detention. The trial court also imposed $1,100 in fines, fees, and costs, including a $500 cannabis fine, a $200 DNA system ID fee, and a $5 electronic citation fee. On that same day, defendant pro se filed a notice of appeal with this court. ¶ 8 On appeal, defendant's first contention is that he was not proved guilty beyond a reasonable doubt and cites to a number of factors which, he contends, negates a finding that he knowingly possessed the cannabis found in the car. These factors include: (1) defendant did not own the car; (2) personal items in the back seat of the car, i.e., the four pairs of shoes, the five pairs of pants, the gym bag containing clothing, and the book bag, were not linked to him; (3) he was asleep at the wheel of the car when the police encountered him; and (4) there was no evidence that he could identify the odor of cannabis. ¶ 9 On review, we must determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. People v. Williams, 193 Ill. 2d 306, 338 (2000). It is the function of the trier of fact to weigh the evidence, determine witness credibility, resolve conflicts in the evidence, and draw reasonable inferences from these factors. Id. The trier of fact is not required to disregard inferences that flow normally from the evidence, nor to seek out all possible explanations consistent with innocence and elevate them to reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 281 (2009). ¶ 10 A defendant's knowing possession of drugs or a gun is often proved through circumstantial evidence establishing constructive possession. People v. Davis, 33 Ill. 2d 134, 136, 139 (1965) (finding the defendant guilty of the unlawful possession of cocaine, where the defendant was the driver of a car and packets of cocaine were found on the floor next to the driver's seat and in the "crack" of the seat); People v. Ingram, 389 Ill. App. 3d 897, 899-900 (2009) (finding defendant in constructive possession of a handgun found in plain view on the floor directly behind the driver's seat, where the gun was easily accessible to the defendant, who was in the front passenger seat, which leaned back onto the back seat); People v. Evans, 80 Ill. App. 3d 87, 88-89 (1979) (finding a defendant who was standing next to the open trunk of his car to be in constructive possession of a bag of pills in open view in the trunk). Although defendant was asleep when the troopers encountered him, he was in the driver's seat of the SUV with the engine still running. Defendant did not own the SUV, but there was no one else in or in control of the vehicle. There was no one else around or by the SUV. Not only was there a large bag of cannabis in the back seat, but some of the cannabis had spilled onto the seat. Although the personal items found in the back seat of the car were not identified as belonging to defendant, they were also not identified as belonging to someone else. Trooper Kiewiet could smell the odor of "raw" cannabis in the car once he opened the door of the SUV. Although it was not proven that defendant knew what cannabis smelled like, the trier of fact reasonably could infer that an odor strong enough for Trooper Kiewiet to detect would have also been detected by defendant, drawing his attention to the bag. All of these circumstances support a finding that defendant was in constructive possession of this cannabis. ¶ 11 Defendant cites to People v. Hampton, 358 Ill. App. 3d 1029 (2005) in support of his argument that his status as the driver of the car did not establish that he was in constructive possession of the cannabis. However, in Hampton, there was a gun at issue which was hidden in a sock in the glove compartment of a car, and there was uncontradicted testimony that the defendant did not own the car and had never driven the car before. Id. at 1033. Here, the cannabis was in open view on the back seat of the car, spilling over onto the car seat. There was also testimony that the strong odor of "raw" cannabis was detected in the car. Defendant also cites to People v. Huth, 45 Ill. App. 3d 910 (1977), where the defendant's conviction for possession of cannabis was reversed on appeal even though the cannabis was found underneath the seat where the defendant was sitting. However, in Huth, there were two other individuals in the car, the defendant had previously been sitting in the back seat, the bag of cannabis was only slightly protruding from under the seat, and it could only have been seen with the aid of a flashlight, as the traffic stop took place at night. Id. at 916. In contrast, defendant in the instant case was alone in a car with a large bag of marijuana on the seat behind him. Viewing all of the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found defendant guilty of possession of cannabis beyond a reasonable doubt. Beauchamp, 241 Ill. 2d at 8. Accordingly, we affirm his conviction. ¶ 12 Defendant was assessed $1180 in fees, fines and costs. Defendant contends, and the State concedes, that he was entitled to a credit of $200 at $5 a day for the 40 days he spent incarcerated while awaiting trial. 725 ILCS 5/110-14(a) (West 2010). Defendant's fines were reduced by a credit of $80, leaving him with a credit of $120, which the State concedes may be applied against the $500 cannabis fine levied against him. 720 ILCS 550/10.3(a)(4) (West 2010). The State also concedes that defendant was erroneously assessed a $200 DNA analysis fee (730 ILCS 5/5-4-3(j) (West 2020)), because he had previously submitted his DNA in a prior conviction. We, therefore, vacate the $200 DNA analysis fee. We also vacate defendant's $5 electronic citation fee because, as the State concedes, that charge only applies to traffic convictions, misdemeanor, municipal ordinance, or conservation cases. 705 ILCS 105/27.3e (West 2010). In summary, we vacate the $200 DNA analysis fee and the $5 electronic citation fee assessed against defendant, and we reduce the $500 cannabis fine assessed against him by a credit of $120. ¶ 13 For the reasons set forth in this order, we affirm defendant's conviction and sentence, but order that the mittimus be corrected to show that the fees, fines, and costs assessed against defendant are reduced to $775. ¶ 14 Affirmed; mittimus corrected.