People v. Powell

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN POWELL…

Court: APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Date published: Nov 22, 2013

2013 Ill. App. 4th 120495 (Ill. App. Ct. 2013)

Opinion

NO. 4-12-0495

11-22-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN POWELL, Defendant-Appellant.

Harris

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

Circuit Court of

Sangamon County

No. 10CF765

Honorable

Peter C. Cavanagh,

Judge Presiding

JUSTICE Harris delivered the judgment of the court.

Presiding Justice Steigmann and Justice Appleton concurred in the judgment.

ORDER

¶ 1 Held: The record does not support defendant's claims that the trial court erred in granting the State's motion to present other-crimes evidence because it lacked knowledge of the appropriate legal standards for the admission of such evidence or because it admitted such evidence despite finding it overly prejudicial to defendant. ¶ 2 A jury found defendant, Steven Powell, guilty of participation in methamphetamine manufacturing (720 ILCS 646/15(a)(2)(E) (West 2008)) and possession of methamphetamine (720 ILCS 646/60(b)(6) (West 2008)). The trial court sentenced him to concurrent terms of 20 years in prison. Defendant appeals, arguing the court erred in allowing the State to present other-crimes evidence at his trial. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On October 21, 2010, a grand jury indicted defendant on one count of unlawful possession of anhydrous ammonia (720 ILCS 646/25(a)(1) (West 2008)) and two counts of unlawful possession of methamphetamine manufacturing material (720 ILCS 646/30(a)(1) (West 2008)). On November 18, 2010, it additionally indicted him on two counts of participation in methamphetamine manufacturing (720 ILCS 646/15(a)(2)(E), 15(a)(2)(A) (West 2008)) and two counts of possession of methamphetamine (720 ILCS 646/60(b)(6), 60(b)(1) (West 2008)). The charges against defendant stemmed from a search by law enforcement officers on March 17, 2010, of defendant's storage unit. Inside the unit, officers discovered material commonly used in the production of methamphetamine and substances containing methamphetamine. ¶ 5 On December 29, 2011, the State filed a motion in limine, asking that the trial court allow the presentation of testimony regarding defendant's prior bad acts. The State asserted defendant's pretrial discovery disclosures indicated he intended to call George Tabor as a witness, who would testify that all of the items in the storage unit belonged to Tabor rather than defendant. The State sought to offer certain evidence "to show the Defendant's intent, knowledge, or absence of mistake," including (1) defendant's prior arrest alongside Tabor in March 2003 (resulting in an April 2004 conviction) for unlawful transportation of anhydrous ammonia and (2) defendant's presence in Tabor's vehicle in October 2009, when Tabor was arrested following a controlled buy of 60 pseudoephedrine tablets and various methamphetamine manufacturing materials were discovered in the vehicle. ¶ 6 Also on December 29, 2011, the State filed a notice of intent to impeach. It asserted that, should defendant choose to testify at trial, it intended to impeach him with his April 2004 conviction for unlawful transportation of anhydrous ammonia. ¶ 7 On January 4, 2012, defendant filed a response to the State's motion in limine. He cited case authority for the proposition that even relevant evidence "should be excluded when its probative value is outweighed by its tendency to inflame and prejudice the jury." Defendant argued his 2004 conviction was "highly prejudicial" and should be deemed inadmissible. He further argued the 2009 incident involving Tabor bore no connection to the charges against him and the trial court should also consider it inadmissible. ¶ 8 On January 6, 2012, the trial court conducted a hearing on pending pretrial motions and considered the State's motion in limine. During argument on that issue, defendant's counsel stated defendant's defense to the charged offenses was that defendant did not know how to cook methamphetamine, did not know how to "produce the materials," and the items found in the storage unit belonged to Tabor rather than defendant. The court expressed its "dislike for prior bad act evidence," noting such evidence was "often pursued due to its ability to show propensity to commit crime." Nevertheless, the court stated there were "particular instances whereby the prior bad act evidence is absolutely allowable," the case law on that issue was "very clear," and the court was "very familiar with it." The court agreed with the State that defendant's prior bad acts in 2003 and 2009 showed defendant's knowledge, intent, and absence of mistake and were, thus, "perfectly allowable reason[s] to get into prior bad acts." Additionally, the following colloquy occurred between the court and the parties:

"MR. KIM [(Assistant State's Attorney)]: Judge, there's a limiting instruction, 3.14.
MR. JON NOLL [(Defense Attorney)]: Counsel, with all due respect, once you throw the skunk into the jury box, it's hard to get the smell out.
THE COURT: I agree. That's exactly why I don't like this type of evidence, but there are certain circumstances where it comes in, and this is one.
MR. JON NOLL: If I could do a jury survey of how many jurors [who] have ever heard that limiting instruction followed it, virtually none of them would follow it.
THE COURT: I agree.
MR. JON NOLL: It's solely for terms of propensity, that's all they want this for.
THE COURT: That is the reason the State wants—that's probably true, but the law in the State of Illinois, the case law quite clearly gives it to them, and we have to be very careful with these situations. I mean, I would prefer to keep it out. It comes in for these reasons, so we will consider this limiting instruction on that type of count."

¶ 9 The trial court next considered the State's notice of intent to impeach. The State argued defendant's 2004 conviction (based on his March 2003 arrest) for unlawful transportation of anhydrous ammonia was an impeachable prior conviction, noting it was a felony conviction within the last 10 years, and that the jury had to be informed of the name of the offense. Conversely, defense counsel argued the jury should not be informed of the name of the offense, noting the court had discretion to reject evidence that was unduly prejudicial to defendant. The following discussion then occurred:

"THE COURT: Here's the rub. Here's the problem. I agree with Mr. Noll, this is the type of conviction the jury can improperly use to essentially convict the Defendant in this cause, but it's a perfectly allowable offense for purposes of impeachment. I don't know what discretion I have, but certainly it concerns the Court to not fully explain what the conviction is for. So it comes down to, in my view, whether or not the State is allowed to impeach, and the problem is it [sic] a perfectly allowable impeachable offense. So what discretion do I have, Mr. Noll?
MR. JON NOLL: I believe you have discretion, Judge. I believe counsel would agree if you feel—if you weigh the prejudicial factor versus the probative value, that's the credibility. We are not saying they can't ask him about a felony conviction. We have no problem with that."

¶ 10 Ultimately, the trial court concluded it would not allow the State to impeach defendant with his 2004 conviction, stating the probative value of the evidence was greatly outweighed by its prejudicial effect. However, it noted that if defendant took the stand there was "no doubt he will be cross-examined in the '09, '03 incidents with great breadth and width of what went down in those circumstances." The court further clarified its ruling, stating as follows:

"[Defendant's] not going to be impeached with the fact that he's a convicted felon in the County of Montgomery for the name of that
offense, but the incident, the incident I've previously ruled is an allowable prior bad act should come in in the State's case in chief to show knowledge, intent, absence of mistake[.]"

¶ 11 On January 9, 2012, the trial court entered a pretrial order, setting forth its rulings on both the State's motion in limine and notice of intent to impeach. The court stated it had reviewed relevant pleadings, transcripts, and authority submitted. It's order states as follows:

"State's Motion In Limine #1

1. That in light of the defense theory of the case and as the State seeks to introduce defendant's prior bad acts to show knowledge, intent, and absence of mistake, the Motion is GRANTED.
2. The State may inquire into the circumstances of the October 2009 arrest of George Tabor and defendant's presence there at the time. Further, the State may inquire into the circumstances of the March 2003 Montgomery County incident wherein Mr. Tabor and defendant had police contact. Defense counsel will be permitted to cross-examine witnesses regarding the full extent of the circumstances but no party will inquire about nor mention the legal ramification of any the [sic] police contact.

State's Notice of Intent to Impeach

1. Denied. State not allowed to impeach defendant with
prior felony conviction should defendant chose [sic] to testify. The State may however cross[-]examine Defendant with regard to prior bad acts ruled admissible in the State's Motion [sic] Limine #1."

¶ 12 On January 10, 11, and 12, 2012, the trial court conducted defendant's jury trial. At the start of trial, the court granted the State's motion to dismiss one count of participation in methamphetamine manufacturing (720 ILCS 646/15(a)(2)(A) (West 2008)) and one count of possession of methamphetamine (720 ILCS 646/60(b)(1) (West 2008)). Defendant's trial proceeded and the jury found him guilty of the five remaining counts. ¶ 13 The State's evidence showed, on March 17, 2010, law enforcement officers were conducting surveillance on defendant when they observed him enter a storage facility. Shortly after defendant left the storage facility, officers initiated a traffic stop based upon defendant's failure to use a turn signal or wear his seat belt. Officers noted a "mechanical odor" on defendant consistent with the mixing of chemicals used in the manufacturing of methamphetamine. Law enforcement officers also went to the storage facility and described "a chemical odor" or an odor of anhydrous ammonia coming from the particular storage unit rented by defendant. The owner of the storage facility and two individuals who rented a unit at the facility each testified they noticed a strong smell coming from defendant's unit in early March 2010. ¶ 14 Ultimately, officers obtained a warrant to search defendant's storage unit. Upon opening the door to the unit, officers described being met with "a very pungent odor" and "an overwhelming power" of anhydrous ammonia. Inside the unit, they discovered a gas station receipt dated March 17, 2010. The date and time on the receipt corresponded with defendant's visit to the gas station earlier in the day while he was under police surveillance. Also in the unit, officers found numerous items commonly used in the production of methamphetamine, including lithium batteries; punctured cans of starter fluid; spoons; glass jars; a digital scale; grinders; a bottle labeled pseudoephedrine; coffee filters; plastic tubing; small cellophane bags; a tank with an attached burner; a pitcher with "leftover residual material from a meth cook"; a modified propane tank, which field tested positive for the presence of anhydrous ammonia; and empty blister packs. They further discovered liquid substances that tested positive for methamphetamine. ¶ 15 Officer Lee Rowden testified he worked for the Sangamon County Sheriff's Department and was certified in meth lab recognition. He described defendant's storage unit as containing "a very large ongoing meth lab with a lot of unknown and known chemicals." Rowden testified there appeared to be wet, "leftover pill waste from a meth cook" that was pink in color, indicating it was "from a recent cook." He stated that, over time, such waste would dry out and turn white and crusty. Officer Brian Hayes testified he worked on the methamphetamine response team for the Illinois State Police. He described finding a pitcher inside defendant's unit with "leftover residual material from a meth cook" that was "pinkish-purplish" in color and wet, indicating it was from "a recent cook." Hayes testified that, based on his training and experience, there appeared to be an active meth lab in defendant's storage unit. ¶ 16 The State further presented evidence regarding the October 2009 and March 2003 incidents involving Tabor and defendant. Its evidence showed defendant was with Tabor on October 19, 2009, when Tabor was arrested following a controlled buy for possession of a methamphetamine precursor (pseudoephedrine tablets) and possession of methamphetamine. According to Sangamon County Sheriff's Deputy Kenneth Karhliker, the transaction occurred while Tabor was in his pickup truck and defendant was sitting in the truck's front passenger seat. A black bag was discovered between Tabor and defendant, containing two black electronic scales and methamphetamine. Karhliker testified defendant was not arrested that day because Tabor took responsibility for all of the items found in the truck. The State's evidence further showed that, following his October 2009 arrest, Tabor remained in jail through March 17, 2010, the date law enforcement officers searched defendant's storage unit. ¶ 17 Regarding the incident occurring on March 25, 2003, Montgomery County Sheriff's Deputy Jeff Roach testified law enforcement discovered a suspected methamphetamine manufacturing lab behind a grain bin and set up surveillance. Thereafter, law enforcement officers observed a vehicle approach the grain bin. A passenger exited the vehicle and went behind the grain bin while the vehicle left the scene. The passenger remained behind the grain bin for 8 to 10 minutes before emerging and running across the road into a field. Officers then observed a green minivan arrive at the scene. The individual from the field got into the passenger side of the minivan. Officers conducted a traffic stop on the minivan and identified Tabor as its driver and defendant as the front seat passenger. Both individuals were arrested. ¶ 18 A search of the minivan revealed cans of starting fluid, a black funnel, audio transmitter equipment, and binoculars. Roach testified that when he returned to the suspected methamphetamine lab, he noticed it was different than previously observed. Specifically, officers found a shovel, punctured cans of starting fluid, and a glass jar filled with liquid. Additionally, Roach stated law enforcement officers discovered a red duffle bag that held plastic containers with lithium strips and a white powder that field tested positive for ephedrine. Officers also discovered a portable air tank that tested positive for the presence of anhydrous ammonia. ¶ 19 At trial, defendant testified on his own behalf. Initially, he acknowledged that, as a result of his March 2003 arrest, he pleaded guilty to the offense of unlawful transportation of anhydrous ammonia, stating he "was involved" and knew what had been going on but "wasn't cookin'." Defendant testified Tabor knew how to cook methamphetamine and acknowledged that he observed Tabor making methamphetamine; however, defendant denied that he ever participated with Tabor in taking pseudoephedrine and turning it into methamphetamine. Defendant also denied that he had any prior knowledge of methamphetamine-related activities with respect to the October 2009 incident. ¶ 20 Defendant testified he first rented his storage unit in August 2009, and stored furniture, tools, and car parts in the unit. Tabor was the only other person who had a key to the unit and also stored items there. According to defendant, he did not become aware of methamphetamine-related items in the unit until November 2009, shortly after Tabor's October 2009 arrest. He did not attempt to remove the items from the storage unit because he feared being found with them and prosecuted. Defendant stated he was at his storage unit on March 17, 2010, to change the spark plugs in his automobile. He did not smell anhydrous ammonia at that time. Defendant denied purchasing any of the methamphetamine-related items in the unit and stated he believed Tabor either purchased the items or had someone else purchase them. Defendant denied that he manufactured methamphetamine out of his storage unit. ¶ 21 On this evidence, the jury convicted defendant as stated. ¶ 22 On May 21, 2012, the trial court denied defendant's posttrial motion and sentenced him to concurrent terms of 20 years in prison for participation in methamphetamine manufacturing (720 ILCS 646/15(a)(2)(E) (West 2008)) and possession of methamphetamine (720 ILCS 646/60(b)(6) (West 2008)). ¶ 23 This appeal followed.

¶ 24 II. ANALYSIS

¶ 25 On appeal, defendant argues the trial court erred in allowing the State to present other-crimes evidence. Specifically, he contends the record shows the court did not want to allow the State to present other-crimes evidence, believing it too prejudicial; however, the court was unaware it should refuse the evidence if it were to find its probative value was substantially outweighed by its prejudicial effect. Defendant points out that the court prohibited the State from impeaching him with his April 2004 conviction on the ground that such evidence was overly prejudicial. He contends that, had the court been aware of the appropriate legal standards, it would have also denied the State's request to present all other-crimes evidence. ¶ 26 "[E]vidence of other crimes is admissible if relevant for any purpose other than to show a defendant's propensity to commit crimes." People v. Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. "Those purposes include—but are not limited to—motive, intent, identity, lack of mistake and modus operandi." Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. However, even when evidence is offered for a permissible purpose it will not be admitted where "its prejudicial impact substantially outweighs its probative value." Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. "It is within the sound discretion of the trial court to determine the admissibility of other-crimes evidence, and its decision will not be disturbed absent a clear abuse of discretion." Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. "An abuse of discretion occurs when the ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the trial court's view." People v. Ward, 2011 IL 108690, ¶ 21, 952 N.E.2d 601. ¶ 27 Initially, we consider the State's contention that defendant failed to preserve his challenge to the admission of other-crimes evidence for appellate review by failing to raise the issue in his posttrial motion. Generally, a defendant forfeits an issue on appeal if he failed to object at trial and raise the issue in a posttrial motion. People v. Kitch, 239 Ill. 2d 452, 460-61, 942 N.E.2d 1235, 1240 (2011). Here, although defendant objected to the State's request to admit other-crimes evidence, he did not also raise this specific issue in his posttrial motion. Under the circumstances presented, defendant deprived the trial court of the opportunity to address an issue that was particularly within the trial court's knowledge, i.e., its awareness, or lack thereof, of the appropriate legal standards for the admission of other-crimes evidence. This specific argument was never brought to the trial court's attention and, as a result, the court was denied an opportunity to clarify its ruling and knowledge of the pertinent legal authority. ¶ 28 Nevertheless, despite forfeiture of the issue, we also find defendant's claim is without merit. On appeal, a reviewing court should presume "that a trial judge knows and follows the law unless the record affirmatively indicates otherwise." In re Jonathon C.B., 2011 IL 107750, ¶ 72, 958 N.E.2d 227. Here, the State filed a motion in limine, seeking to introduce other-crimes evidence, including defendant's March 2003 arrest and his presence at Tabor's arrest in October 2009. Defendant filed a response to that motion and cited case authority for the proposition that other-crimes evidence should be excluded when its probative value is outweighed by its prejudicial effect. He also argued evidence related to his 2004 conviction (as a result of his March 2003 arrest) was "highly prejudicial" and "must be weighed against its probative value." In its written order granting the State's motion, the trial court specifically stated it had reviewed all pleadings, transcripts, and authority submitted. Although at the pretrial hearing on the motion the court expressed dislike for other-crimes evidence, nothing in its comments when ruling on the State's motion "affirmatively indicates" it did not know or follow the law. We note a trial court's "failure to specifically articulate that it engaged in the balancing process" does not constitute reversible error. People v. Abernathy, 402 Ill. App. 3d 736, 750, 931 N.E.2d 345, 356 (2010). ¶ 29 Additionally, defendant mischaracterizes the record by contending the trial court determined the other-crimes evidence was overly prejudicial when ruling on the State's notice of intent to impeach. In ruling on the impeachment issue, the court determined the State was not allowed to impeach defendant with his prior April 2004 felony conviction for unlawful transportation of anhydrous ammonia. The record clearly shows the court determined the fact of defendant's conviction for that specific named offense was too prejudicial to defendant. It did not find that the probative value of all other-crimes evidence was substantially outweighed by its prejudicial effect. Specifically, in clarifying its ruling the court noted the State was permitted to cross-examine defendant regarding the circumstances underlying his conviction. ¶ 30 Here, defendant acknowledges the other-crimes evidence was relevant. However, he contends this case requires reversal because the trial court determined the other-crimes evidence was overly prejudicial and did not realize it could exclude the evidence on that basis. The record belies defendant's assertion with respect to what evidence the court found was overly prejudicial. As stated, it also does not "affirmatively indicate" that the court was unaware of the appropriate legal analysis. We find no error as alleged by defendant. ¶ 31 Further, we disagree with defendant's assertion that a court employs the same test when analyzing whether to admit other-crimes evidence to show motive, intent, identity, lack of mistake and modus operandi and evaluating whether to allow a defendant to be impeached with a prior conviction. "[E]vidence of prior bad acts is admissible only if relevant for any purpose other than to demonstrate the defendant's propensity to commit crime" and "[e]vidence is considered 'relevant' if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence." People v. Illgen, 145 Ill. 2d 353, 365-66, 583 N.E.2d 515, 520 (1991). Conversely, for purposes of impeachment, a prior conviction may be admissible to attack a defendant's credibility. People v. Atkinson, 186 Ill. 2d 450, 456, 713 N.E.2d 532, 535 (1999). The basis for admission of other-crimes evidence is different than that for the admission of a prior conviction for impeachment. We agree with the State's assertion that the probative value of the evidence is also distinct. ¶ 32 Finally, even assuming error occurred as alleged by defendant on appeal, we find reversal unwarranted. "Erroneous admission of other-crimes evidence calls for reversal only if the evidence was 'a material factor in the defendant's conviction such that, without the evidence, the verdict likely would have been different.' " People v. Adkins, 239 Ill. 2d 1, 23, 940 N.E.2d 11, 24 (2010) (quoting People v. Hall, 194 Ill. 2d 305, 339, 743 N.E.2d 521, 541 (2000)). In this instance, excluding all other-crimes evidence, the evidence against defendant was not closely balanced and more than sufficient to sustain his convictions. Thus, we find it unlikely that the result of defendant's trial would have been different without that evidence. ¶ 33 At trial, evidence showed, on March 17, 2010, police searched a storage unit rented by defendant shortly after observing him entering and exiting the storage facility. When stopped by law enforcement officers, defendant smelled of a "mechanical odor" consistent with the mixing of chemicals used in the manufacturing of methamphetamine. Officers also described "a chemical odor" or an odor of anhydrous ammonia emanating from defendant's storage unit. The State presented testimony from three additional witnesses who also noticed a strong smell coming from defendant's unit in early March 2010. Upon opening the storage unit on March 17, 2010, officers were met with "a very pungent odor" and "an overwhelming power" of anhydrous ammonia. Inside the unit, they discovered a gas station receipt that corresponded with defendant's visit to the gas station earlier in the day while under police surveillance. Also in the unit, officers found numerous items commonly used in the production of methamphetamine and liquid substances which tested positive for methamphetamine. ¶ 34 Officers Rowden and Hayes described seeing leftover material from a "meth cook" that was wet in appearance, indicating it was from "a recent cook." Each officer, based upon his training and experience, believed defendant's storage unit contained a large, active meth lab. Although defendant denied responsibility for any methamphetamine-related materials and attempted to shift blame to Tabor, the State's evidence showed Tabor was in jail at the time defendant's storage unit was searched and had been for the previous five months. ¶ 35 Here, we disagree with defendant's contention that the record shows the trial court was unaware of the appropriate legal standards for the admission of other-crimes evidence. Moreover, the record does not reflect the court determined the prejudicial impact of all other-crimes evidence outweighed its probative value. Finally, even excluding the other-crimes evidence from consideration, the evidence against defendant was not closely balanced and more than sufficient to sustain his convictions. Reversal of defendant's convictions is unwarranted.

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. ¶ 38 Affirmed.