Opinion
No. 1-15-0248
07-14-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAMON CRUZ, 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. 14 CR 4150 Honorable Matthew E. Coghlan, Judge, presiding. JUSTICE DELORT delivered the judgment of the court.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶ 1 Held: Defendant's convictions for possession with intent to deliver methamphetamine and unlawful use or possession of a weapon by a felon (UUWF) are affirmed. The State proved he had constructive possession of the drugs, gun, and ammunition found in the apartment. The defendant's UUWF conviction was properly classified as a Class 2 felony. ¶ 2 Following a bench trial, defendant Ramon Cruz was convicted of possession with intent to deliver between 100 and 400 grams of methamphetamine, and unlawful use or possession of a weapon by a felon (UUWF). The trial court sentenced defendant to concurrent prison terms of 15 years and 7 years, respectively. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt because it failed to establish that he had constructive possession of the drugs, gun and ammunition found inside the apartment. Defendant also contends that his mittimus should be amended to reflect that his conviction for UUWF was a Class 3 felony rather than Class 2. We affirm. ¶ 3 Defendant was charged with one count of possession with intent to deliver between 100 and 400 grams of methamphetamine (720 ILCS 646/55(a)(1), (2)(D) (West 2014)), one count of defacing the identification marks of a firearm (720 ILCS 5/24-5(b) (West 2014)), and six counts of UUWF (720 ILCS 5/24-1.1(a) (West 2014)). Three of the UUWF counts charged defendant with possession of a handgun, and the remaining three counts charged him with possession of firearm ammunition. ¶ 4 At trial, Chicago police officer Vincent Celio testified that about 1:15 a.m. on February 2, 2014, he participated in the execution of a search warrant at a residence located at 6958 West Schubert Avenue, apartment 2W. The residence was in a three-floor multi-unit building displaying the addresses of 6956 and 6958. Each floor had apartments on each side. Two teams of officers knocked on the apartment door and announced their office. After receiving no response, they made a forced entry. Defendant was in the living room with six or seven other individuals. They were all detained and a systematic search of the apartment was conducted. Celio remained in the living room with defendant. When another officer stated that he recovered crystal methamphetamine, Celio placed defendant under arrest. During a custodial search, Celio recovered $3,600 in currency in various denominations from defendant. ¶ 5 Chicago police officer Tanovic recovered a clear zip-top bag containing a white crystallized substance of suspected methamphetamine from a table in the living room. Tanovic acknowledged that there were other people in the living room when the police entered the apartment. ¶ 6 Chicago police officer Wayne Frano recovered a clear zip-top bag from the kitchen floor which contained one pink and two blue plastic bags containing a glass-like substance of suspected crystal methamphetamine. He testified that narcotics are typically packaged in this manner, with smaller bags placed inside a larger plastic bag. ¶ 7 Chicago police lieutenant Ryle recovered a digital scale from a table in the living room. He testified that digital scales are used to weigh small amounts of narcotics for the purpose of sales. ¶ 8 Inside a closet in the front bedroom, Chicago police officer Ivan Ramos found a safe, which the police forced open. Inside the safe, Ramos found a loaded blue steel .22-caliber long rifle handgun. He also recovered two additional magazines containing 18 rounds of ammunition, and a plastic bag containing more rounds of ammunition. Ramos observed that the firearm had been defaced and had no serial number. In court, Ramos identified a photograph of the front bedroom and testified that the photo showed "all men's clothing" inside the closet. ¶ 9 Chicago police officer John Frano recovered a black bag from atop a pool table inside the front bedroom. Inside that bag, Frano found a brown Gucci watch box which contained a plastic bag containing suspected crystal methamphetamine. The black bag also contained a digital scale and a black zippered pouch which contained three zip-top bags, each containing suspected crystal methamphetamine. No individuals were found inside the bedroom. In court, Frano identified a photograph of the front door of the apartment building. The photo shows the numerals "6956 58" above the door of the building. ¶ 10 Chicago police officer Marvin Bonnstetter also searched the front bedroom. Inside the top dresser drawer, he found a "lease agreement," which the prosecutor referred to as a "receipt for payment of rent." Inside the second drawer, the officer found items used for manufacturing and packaging narcotics, including a box of plastic bags, a plastic bowl, and a sifter. Bonnstetter acknowledged that the "lease agreement" was actually a general notice sent to the tenants of the building with a handwritten note at the bottom. He further acknowledged that it was not a typical lease agreement as it did not include beginning and ending dates or terms of the lease. ¶ 11 The notice, contained in the record, is a notification to tenants that the property was under new ownership as of November 30, 2013. The handwritten note at the bottom of the typed notice states "Ramon Cruz paid $750.00 cash on Dec 1st for January Rent." ¶ 12 The State presented a stipulation that during a custodial search of defendant, Chicago police officer Garcia recovered a set of keys. Garcia used those keys and determined that they could be used to gain access to the apartment. Garcia also recovered a plastic zip-top bag containing suspect methamphetamine from inside the kitchen pantry. ¶ 13 The State presented a second stipulation that forensic scientist Lenetta Watson found that all of the recovered items of suspected methamphetamine tested positive for methamphetamine. Specifically, the bag recovered from the living room table tested positive for 1.9 grams, the bag containing one pink and two blue bags recovered from the kitchen floor tested positive for 4.7 grams, the bag recovered from the kitchen pantry tested positive for 1.3 grams, the three bags inside the black pouch that was inside the black bag on the pool table tested positive for 34.1 grams, and the bag inside the Gucci box that was inside the black bag tested positive for 88.3 grams. ¶ 14 The State also presented a certified copy of defendant's 2006 felony conviction for possession of a controlled substance under case number 06 CF 89 in Du Page County. Documents in the record indicate that this conviction was for possession of between 15 and 100 grams of methamphetamine, a Class 1 felony (720 ILCS 570/402(a)(6.5)(A) (West 2005)). ¶ 15 The State then moved to admit the photographs and the purported rent receipt into evidence. Defense counsel objected to the rent receipt, arguing that it was a typed document addressed to the tenants of the building in general with a handwritten note at the bottom. Counsel argued that there was no foundation presented regarding who wrote the handwritten note, or whether the statements therein were true and accurate. Counsel further argued that the document was hearsay, not a business document, and that it did not fall under an exception to the rule barring admission of hearsay. ¶ 16 The State replied that it was not presenting the document as a business record, but as a document found in the bedroom that allegedly belonged to defendant. The State argued that the court should consider the weight of the evidence, not necessarily its admissibility. The trial court overruled the objection, stating that defendant's name was on the document and that it was offered as proof of residency, not for the truth of the matter asserted. ¶ 17 In his motion for a directed finding, defendant argued, inter alia, that the State failed to prove that he resided in the apartment. The State responded that residency was established through the rent receipt containing defendant's name, and defendant's possession of keys for the apartment. At this point, the State also nol-prossed four counts of UUWF (Counts 2 through 5). The trial court denied defendant's motion. The defendant presented no evidence. ¶ 18 The court found that the rent receipt containing defendant's name coupled with the fact that he was found in possession of the keys to the apartment was "strong circumstantial evidence" showing that the apartment belonged to defendant. The court also pointed out that defendant was found with $3,600 in his pocket. The court concluded that "all the evidence combined shows that this is the defendant's apartment." Consequently, the trial court found defendant guilty of possession with intent to deliver between 100 and 400 grams of methamphetamine, defacing the identification marks of a firearm, and two counts of UUWF for possessing the handgun and the ammunition. The court denied defendant's posttrial motion. ¶ 19 The circuit court sentenced defendant to a term of 15 years' imprisonment for possession with intent to deliver methamphetamine. The court also merged the three gun charges and sentenced defendant to a concurrent term of seven years' imprisonment for UUWF on Count 6, which alleged possession of the handgun based on his prior 2006 felony conviction for possession of methamphetamine under case number 06 CF 89 in Du Page County. ¶ 20 On appeal, defendant first contends that the State failed to prove him guilty beyond a reasonable doubt because it failed to establish that he had constructive possession of the drugs, gun and ammunition found inside the apartment. Defendant argues that the evidence failed to show that he lived in the apartment, and even if it did, the State did not prove that the contraband was his rather than his roommate's. Defendant claims that he was merely one of several people present when the search warrant was executed, and the State did not show that he had immediate and exclusive control over the area where the contraband was found. He further argues that the handwritten note was insufficient proof of residency because it did not indicate the address for which rent was paid, was not dated, did not show who paid the rent on the date the warrant was executed, and there was no evidence that the note belonged to defendant. ¶ 21 When a defendant claims that the evidence is insufficient to sustain his conviction, this court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). This standard applies whether the evidence is direct or circumstantial, and does not allow this court to substitute its judgment for that of the fact finder on issues involving witness credibility and the weight of the evidence. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009). Under this standard, all reasonable inferences from the evidence must be allowed in favor of the State. People v. Lloyd, 2013 IL 113510, ¶ 42. ¶ 22 In a bench trial, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences from therein. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). We will not reverse a criminal conviction based upon insufficient evidence unless the evidence is so improbable or unsatisfactory that there is reasonable doubt as to defendant's guilt (People v. Beauchamp, 241 Ill. 2d 1, 8 (2011)), nor simply because defendant claims that a witness was not credible or that the evidence was contradictory (Siguenza-Brito, 235 Ill. 2d at 228). ¶ 23 To prove defendant guilty of possession with intent to deliver methamphetamine in this case, the State was required to show that he unlawfully and knowingly possessed with intent to deliver between 100 and 400 grams of methamphetamine, or a substance containing methamphetamine. 720 ILCS 646/55(a)(1), (2)(D) (West 2014). To prove defendant guilty of the UUWF charges, the State was required to show that he knowingly possessed a handgun and firearm ammunition in his own abode, and that he had a prior felony conviction for possession of between 15 and 100 grams of methamphetamine. See 720 ILCS 5/24-1.1(a) (West 2014). ¶ 24 Possession of contraband may be either actual or constructive. People v. Givens, 237 Ill. 2d 311, 335 (2010). Where, as here, defendant is not found in actual physical possession of the contraband, the State must prove that he had constructive possession. People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. Constructive possession exists where defendant had knowledge of the presence of the drugs, firearm and ammunition, and had immediate and exclusive control over the location where the items were found. Id. Knowledge may be demonstrated by evidence of defendant's declarations, acts, or conduct from which it can be inferred that he knew the contraband existed in the place where it was found. Id. Control is established when defendant has the capability and intent to maintain dominion and control over the contraband, even if he lacks personal present dominion over it. Id. (citing People v. Frieberg, 147 Ill. 2d 326, 361 (1992)). Proof that defendant had control over the premises where the contraband was found gives rise to an inference of his knowledge and possession of that contraband. Givens, 237 Ill. 2d at 335. "The law is clear that the exclusive dominion and control required to establish constructive possession is not diminished by evidence of others' access to the contraband." (Internal quotation marks omitted.) Id. at 338. ¶ 25 Constructive possession may be inferred from the evidence by the trier of fact and is often established by entirely circumstantial evidence. People v. McCarter, 339 Ill. App. 3d 876, 879 (2003). Defendant's habitation in the premises where contraband is found is sufficient evidence of his control of the location to establish constructive possession. Spencer, 2012 IL App (1st) 102094, ¶ 17. "Proof of residency in the form of rent receipts, utility bills and clothing in closets is relevant to show the defendant lived on the premises and therefore controlled them." (Internal quotation marks omitted.) Id. (quoting People v. Cunningham, 309 Ill. App. 3d 824, 828 (1999) (quoting People v. Lawton, 253 Ill. App. 3d 144, 147 (1993))). See also People v. Spann, 332 Ill. App. 3d 425, 445 (2002) (defendant had constructive possession of drugs found in apartment where he "stayed in the apartment, paid rent there, and possessed a key to the apartment"). ¶ 26 Here, viewed in the light most favorable to the State, we find that the evidence was sufficient for the trial court to find that defendant had constructive possession of the methamphetamine, handgun and firearm ammunition found inside the apartment. The record shows that defendant was present inside the apartment when the police arrived and conducted the search. During a custodial search of defendant, a set of keys for the apartment was found on his person. Police also recovered $3,600 from defendant. The record further shows that in the front bedroom of the apartment, police recovered a black bag that contained over 122 grams of methamphetamine, as well as a handgun and firearm ammunition from a safe inside the bedroom closet. Officer Ramos testified that a photograph of that bedroom showed all men's clothing inside the closet. In that same bedroom, police recovered a document from a dresser drawer that had defendant's name on it. The trial court expressly found that the combination of all of this evidence was "strong circumstantial evidence" which showed that the apartment belonged to defendant. ¶ 27 When considered together, we find that the cumulative evidence in this case consisting of defendant's presence in the apartment, his possession of keys to the apartment, the men's clothing in the same bedroom where the contraband was found, and the document containing his name, was sufficient for the trial court to infer that defendant had control over the premises where the contraband was found. The evidence therefore established that defendant had constructive possession of the drugs, the handgun, and the firearm ammunition. ¶ 28 In reaching this conclusion, we reject defendant's argument that the State failed to prove that the contraband was his rather than his roommate's. There is absolutely no evidence in the record that defendant had a roommate. Furthermore, although there were several people present in the apartment at the time of the search, there was no evidence presented that anyone else resided in or had control of the apartment. We also reject defendant's argument that the handwritten note was insufficient proof of residency because it did not indicate the address for which rent was paid, was not dated, and did not show who paid the rent on the date the warrant was executed. The trial court stated that it was not giving any consideration to the substance of the note for the truth of the matter asserted, i.e., it was not considering the note as proof that defendant had paid rent for the apartment. Instead, the court considered the document as one piece of evidence used to show proof of residency because defendant's name was on the document. As the trier of fact, it was the trial court's responsibility to weigh all of the evidence and draw reasonable inferences from therein. Siguenza-Brito, 235 Ill. 2d at 228. Based on this record, we find no reason to disturb the trial court's determination in this case. ¶ 29 Defendant next contends that his mittimus should be amended to reflect that his conviction for UUWF is a Class 3 felony rather than Class 2. Defendant claims that the State initially charged him with both Class 2 and Class 3 versions of UUWF, but then nol-prossed all of the Class 2 "enhanced" counts at the end of its case-in-chief, and only proceeded on the Class 3 versions of the offense. In support of this assertion, defendant points to the fact that the four counts which the State nol-prossed expressly stated that "THE STATE SHALL SEEK TO SENTENCE HIM AS A CLASS 2 OFFENDER," but the counts on which he was convicted did not include this statement. ¶ 30 The State responds that pursuant to the express language of the statute, the offense of which defendant was charged and convicted, UUWF based on a prior Class 1 felony conviction for possession of methamphetamine, is a Class 2 felony. The State argues that because the statute provides only one classification for the offense as charged, the trial court was required to enter the conviction as a Class 2 felony, and defendant's UUWF conviction cannot be reduced to Class 3. The State also points out that pursuant to People v. Easley, 2014 IL 115581, it was not required to provide defendant with notice of which classification of sentence it was seeking because only one class of felony conviction was possible. The State notes that the charging document specifically indicated that it intended to rely on defendant's prior conviction for possession of methamphetamine, and thus, it was clear that the charged UUWF offense was a Class 2 felony. ¶ 31 In reply, defendant acknowledges that pursuant to Easley, the State was not required to give him explicit notice that it was seeking a Class 2 conviction. He maintains, however, that the count under which he was convicted, Count 6, was charged as a Class 3 felony. ¶ 32 The record shows that under Count 6, defendant was charged with the offense of UUWF for possessing a handgun "AFTER HAVING BEEN PREVIOUSLY CONVICTED OF THE FELONY OFFENSE OF POSSESSION 15>100 GRAMS METH, UNDER CASE NUMBER 06CF89, *** IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 24-1.1(a)." ¶ 33 The UUWF statute provides, in relevant part:
"Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person shall be sentenced to no less than 2 years and no more than 10 years and any second or subsequent violation shall be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 14 years. Violation of this Section by a person not confined in a penal institution who has
been convicted of *** a Class 2 or greater felony under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is a Class 2 felony for which the person shall be sentenced to not less than 3 years and not more than 14 years." (Emphasis added.) 720 ILCS 5/24-1.1(e) (West 2014).¶ 34 In Easley, our supreme court held that when a prior conviction is a required element of the offense, the State is not required to give the defendant notice of the classification of sentence it is seeking. Easley, 2014 IL 115581, ¶ 19. The court explained "[u]nder these circumstances, only one class of felony conviction is possible for the offense as alleged in the charging instrument." Id. The court further stated that notice was not required because the State was not seeking to "enhance" the defendant's sentence with his prior conviction, but instead, as alleged in the indictment, only a Class 2 sentence was allowed under the UUWF statute. Id. at ¶ 22. ¶ 35 In this case, defendant's prior conviction for possession of between 15 and 100 grams of methamphetamine, was a Class 1 felony under the Illinois Controlled Substances Act (720 ILCS 570/402(a)(6.5)(A) (West 2005)). The UUWF statute expressly states that a violation based on a Class 2 or greater felony conviction under the Illinois Controlled Substances Act is a Class 2 felony. Defendant's assertion that the State charged him with a Class 3 felony under Count 6 is therefore incorrect. The Class 3 felony classification for the UUWF offense does not apply to defendant in this case. ¶ 36 Moreover, pursuant to Easley, the State was not required to provide defendant with express notice that it was seeking a Class 2 conviction under Count 6. The charging document clearly indicated that the UUWF charge was based on defendant's prior conviction for possession of methamphetamine, and cited the UUWF statute. Therefore, defendant had notice that the offense was a Class 2 felony, and that the Class 3 version of the offense did not apply to him. Accordingly, defendant's conviction for UUWF as a Class 2 felony is proper and cannot be reduced to Class 3. ¶ 37 For these reasons, we affirm the judgment of the circuit court of Cook County. ¶ 38 Affirmed.
The offense was recodified effective June 5, 2006, and is now a Class X felony under the Methamphetamine Control and Community Protection Act at 720 ILCS 646/55(a)(1), (2)(C) (West 2014). --------