Filed 12/19/08 NO. 4-07-0970
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
STEVEN COUCH, ) No. 05CF503
Defendant-Appellant. )
) Honorable
) Claudia S. Anderson,
) Judge Presiding.
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JUSTICE STEIGMANN delivered the opinion of the court:
In June 2007, a jury convicted defendant, Steven Couch,
of (1) criminal drug conspiracy (count I) (720 ILCS 570/405.1
(West 2004)), (2) three counts of delivery of a controlled
substance (15 grams or more but less than 100 grams of a sub-
stance containing cocaine) (counts II, IV, and V) (720 ILCS
570/401(a)(2)(A) (West 2004)), and (3) delivery of cannabis (more
than 30 grams but not more than 500 grams of a substance contain-
ing cannabis) (count III) (720 ILCS 550/5(d) (West 2004)).
In September 2007, the trial court sentenced defendant
to (1) concurrent prison terms of 26, 5, and 20 years on counts
II, III, and V, respectively, and (2) 20 years in prison on count
IV, to be served consecutively to his 26-year prison sentence on
count II.
Defendant appeals, arguing that the trial court (1)
erred by not instructing the jury on the affirmative defense of
entrapment and (2) abused its discretion by imposing consecutive
sentences. We disagree and affirm.
I. BACKGROUND
In August 2005, the State charged defendant with (1)
criminal drug conspiracy (720 ILCS 570/405.1 (West 2004)), (2)
three counts of delivery of a controlled substance (15 grams or
more but less than 100 grams of a substance containing cocaine)
(720 ILCS 570/401(a)(2)(A) (West 2004)), and (3) delivery of
cannabis (more than 30 grams but not more than 500 grams of a
substance containing cannabis) (720 ILCS 550/5(d) (West 2004)).
A summary of the evidence from defendant's May and June
2007 jury trial, which included testimony, in pertinent part,
from (1) Illinois State Police Sergeant Earl Candler, (2) Anthony
Shaeffer, and (3) defendant, showed the following.
Candler, an undercover officer assigned to task force
six--a multijurisdictional task force implemented to combat
narcotics trafficking--testified that he first met defendant on
September 13, 2005, through Shaeffer, who was working as a
confidential source for the task force. That same day, Candler,
working in his undercover role as a drug purchaser, bought 88
grams of cannabis from defendant. (Defendant later pleaded
guilty to delivery of cannabis, but that conviction is not the
subject of this appeal.)
On September 16, 2004, Candler and Shaeffer picked up
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defendant at his house and drove to a trailer owned by defen-
dant's mother. Defendant went inside the trailer and called
"Chuck" to arrange the delivery of cannabis and cocaine that
Candler had earlier agreed to purchase from defendant.
Shortly thereafter, a car driven by Charles Allison
arrived at the trailer. Surveillance from other task-force
officers revealed that Allison drove defendant to Allison's home
while Candler and Shaeffer remained outside the trailer. Allison
and defendant returned to the trailer 20 minutes later. Defen-
dant approached Candler and gave him 439.8 grams of cannabis and
26.1 grams of cocaine in exchange for $2,000. Defendant received
$150 of the $2,000 purchase price as a "finder's fee" because he
provided Candler the cannabis and cocaine. Candler stated that
after the sale, defendant was upset that his fee was lower than
he expected, which defendant attributed to an increase in
Allison's drug prices. On the trip back to his house, defendant
told Candler that he would introduce Candler to another drug
supplier, who had previously provided defendant cannabis and
cocaine.
On September 27, 2004, Candler and Shaeffer again
traveled with defendant to his mother's trailer, where defendant
tried unsuccessfully to contact Allison. The group then traveled
to Allison’s house and, after a private discussion between
defendant and Allison, Candler drove Shaeffer and defendant back
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to the trailer. Allison arrived shortly thereafter, picked up
defendant, and drove defendant back to his house. A few minutes
later, Allison and defendant returned to the trailer. Defendant
approached Candler and gave him 53.7 grams of cocaine in exchange
for $2,000. Defendant took a portion of the cocaine, valued at
between $120 and $140, as his fee. During the trip to and from
the trailer, the task force recorded defendant on audiotape
telling Candler and Shaeffer that (1) Allison was his drug
connection whom he had been working with for six years and (2) he
had made thousands of dollars working with Allison.
On October 5, 2004, defendant sold an additional 51.6
grams of cocaine to Candler in exchange for $2,000. Candler
stated that after the sale, defendant wanted Candler to meet
Allison so that Candler could purchase drugs directly from
Allison in case something happened to him. Later that month,
defendant called Candler after he found out that Candler had
purchased drugs directly from Allison without his assistance.
Candler described defendant's demeanor on the phone as "extremely
upset" because Candler had "cut him out of the deal."
Shaeffer testified that in 1997, he became a confiden-
tial source for a drug enforcement agency to resolve some "legal
issues" he was facing. Shaeffer stopped working for the agency
after he resolved his legal affairs but, sometime later, he
returned to the agency to resume his role in that regard.
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Shortly thereafter, Shaeffer became a confidential source for
task force six because of his prior success in making "introduc-
tions." Shaeffer regarded his role as a confidential source as
his primary employment. In exchange for Shaeffer introducing
task-force members to drug suppliers, the task force provided him
an income and free public housing.
In October 2003, Shaeffer first met defendant in the
Champaign County jail, where they spoke about their respective
abilities to acquire and deliver controlled substances. Defen-
dant told Shaeffer that (1) he had distributed various types of
drugs, including cannabis and cocaine, and (2) Shaeffer should
contact him after Shaeffer's release from jail so that they could
"hook up." Shaeffer stated that when he met defendant, he was
not working as a confidential source for any law-enforcement
agency.
In September 2004, Shaeffer attempted to contact
defendant a "couple of times" to determine whether defendant
would be willing to sell cannabis to Candler, whom Shaeffer
identified as his partner. Shaeffer said that although he did
not immediately make contact with defendant due to defendant's
legal problems, he denied that it took "several" phone calls
before he spoke with defendant. Shaeffer stated that his sole
responsibility as a confidential source was to handle the intro-
duction between Candler and defendant that "got the ball roll-
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ing." Shaeffer testified that he did not (1) handle money or
drugs, (2) participate in any negotiations between Candler and
defendant, or (3) induce or coerce defendant into performing any
acts that defendant was not already willing to accomplish.
Shaeffer acknowledged that, in introducing defendant to Candler,
he placed defendant in a position that later allowed the task
force to apprehend defendant.
Defendant testified that when he met Shaeffer in jail,
they discussed Shaeffer's involvement in the drug trade. Defen-
dant embellished his claim that he was also involved in the drug
trade so that he would have a "bigger fish story" than Shaeffer
because it was what "people do in jail." Defendant stated that
Shaeffer then asked for his phone number--which he provided--so
that they could "hook up" after defendant was released from jail.
However, defendant intended only to meet with Shaeffer socially
and not "to hook up and do drugs."
Defendant stated that beginning in January 2004, he
received repeated phone calls from Shaeffer, which he avoided.
In August 2004, defendant spoke with Shaeffer, who asked him if
he could get some cannabis. Shaeffer explained that he needed to
make money because he was about to lose his apartment. Defendant
responded that he did not have any cannabis, but that he needed
"a couple of days to see what he could do." Defendant attributed
his response to Shaeffer's inquiry to his own stupidity.
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On September 13, 2004, defendant told Shaeffer that he
would introduce Shaeffer to Allison but did not want to get
involved in any drug sales. During the drug sale that occurred
later that same day, defendant (1) handed Shaeffer the cannabis
out of Candler's view and (2) refused to accept any money after
Shaeffer delivered the cannabis to Candler. Defendant stated
that (1) Shaeffer later gave him some proceeds from the drug sale
and (2) he would not have involved himself in the drug sale if
Shaeffer had not kept continually calling him.
Defendant admitted that he participated in several more
drug transactions, which he attributed to pressure, money, and "a
lot of things." Defendant explained that the pressure he felt
was to produce "one fish story after another." Specifically,
defendant surmised that Shaeffer was a big drug dealer and
defendant wanted to introduce Shaeffer to a bigger drug dealer,
which defendant admitted he had accomplished. Defendant stated
that he (1) introduced people to drug dealers to support himself
and (2) had purchased cannabis by the quarter-pound several
times. Defendant testified that on October 5, 2004, he told
Candler and Shaeffer that he did not want to participate in any
more drug transactions because they knew how to contact Allison
without his assistance.
Defendant admitted, however, that he (1) pleaded guilty
to delivery of cannabis for the September 13, 2004, transaction;
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(2) had purchased cannabis by the quarter-pound prior to Septem-
ber 13, 2004; (3) thanked Candler for the money he made on
selling the cannabis on September 13, 2004; (4) liked the image,
lifestyle, and money associated with being a "big-time" drug
dealer; and (5) was not induced by Candler or Shaeffer to arrange
drug deals with Allison. Defendant also admitted that he kept
selling cannabis to Candler and Shaeffer after September 13,
2004, because he "felt obligated."
The jury later convicted defendant on all counts. At
defendant's September 2007 sentencing hearing, the trial court
considered defendant’s presentence investigation report (PSI),
which showed that defendant was 42 years old and had six prior
felony convictions, with his first occurring 20 years earlier.
Defendant's felony convictions included, in part, two aggravated
battery convictions and two convictions for delivery of cannabis
(more than 30 grams but not more than 500 grams of a substance
containing cannabis), which included defendant's conviction for
delivery of cannabis on September 13, 2004.
Before imposing sentence, the trial court stated the
following:
"It's clear to the [c]ourt that most of
your adult life, your income has depend[ed]
upon pursuits that would not be legal pur-
suits. There's nothing that's enunciated
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anywhere about any lawful employment that
you've held in your adult life. That does
strike the [c]ourt. I *** do think that the
fact that you received compensation for the
offenses that you commit are [sic] aggravat-
ing factors. You do have a history *** of
riding the same horse. Popping up here ***
are prior similar offenses. To suggest that
I not be concerned with the need to deter
others *** really ignores what we do here.
It's extremely important in our community
that peddlers of this particular trade are
aware that they have a lot to risk, and that
their risk would be more than money, it would
be their liberty.
*** The amounts [of cocaine] that we
had involved in this case are of grave con-
cern, and a matter to be considered in your
sentencing. I think I've already referred to
this, but the fact that you would appear to
have no other means of support ***. Much of
this really relates to the sentences that I
impose that are going to be consecutive, and
those are going to be [c]ounts [II] and [IV].
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The comments that I'm making are really set
forth on the record for that purpose, so that
I can try to impress upon the [a]ppellate
[c]ourt my concerns with you, and with this
case. With our community, and why I am sen-
tencing as I am. I do note *** that you
weren't charged based on an accumulative
[sic] weight of more than 100 grams, which I
think was a concession in the first place by
the State.
It does strike me, and it did strike me
previously, that even with the knowledge of
what Allison was facing, you went forward
with your trade in this particular case. I'm
not sure if your remorse is for being caught,
or that you truly have remorse. *** I do
know that it's easy to--it's easy to find
religion when you are really at the alter. I
would suggest that that might be the circum-
stance here. I would give you the benefit of
the doubt that you're sorry for the offense.
But I do agree that your character, your
history, the circumstances that surrounded
the offenses committed here, that it is nec-
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essary that I impose consecutive sentences in
order to protect the public from further
criminal conduct by you."
The court then sentenced defendant as previously stated. (At the
State's request, the court did not impose a sentence on count I.)
This appeal followed.
II. ANALYSIS
A. The Trial Court's Refusal To Instruct the Jury
on the Affirmative Defense of Entrapment
Defendant argues that the trial court erred by not
instructing the jury on the affirmative defense of entrapment.
We disagree.
Section 7-12 of the Criminal Code of 1961 states as
follows:
"A person is not guilty of an offense if
his or her conduct is incited or induced by a
public officer or employee, or agent of ei-
ther, for the purpose of obtaining evidence
for the prosecution of that person. However,
this [s]ection is inapplicable if the person
was pre-disposed to commit the offense and
the public officer or employee, or agent of
either, merely affords to that person the
opportunity or facility for committing an
offense." 720 ILCS 5/7-12 (West 2006).
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"'Entrapment requires that a defendant show both that
the State improperly induced him or her to commit a crime and
that he or she was not otherwise predisposed to commit the
offense.'" People v. Bonner, 385 Ill. App. 3d 141, 145, 895
N.E.2d 99, 103 (2008), quoting People v. Glenn, 363 Ill. App. 3d
170, 173, 842 N.E.2d 773, 776 (2006). "The entrapment defense is
unavailable where the State has merely provided the defendant an
opportunity to commit the crime." People v. Arndt, 351 Ill. App.
3d 505, 516, 814 N.E.2d 980, 991 (2004). Thus, a defendant's
predisposition is the critical inquiry, and the State must show
that the defendant was ready and willing to commit the crime in
the absence of any persuasion by the State. Arndt, 351 Ill. App.
3d at 516, 814 N.E.2d at 991.
When deciding whether to give an instruction, the trial
court must view the evidence in the light most favorable to the
defendant. People v. Walker, 267 Ill. App. 3d 454, 459, 641
N.E.2d 965, 969 (1994). The instruction is justified even if
only slight evidence is presented that, if believed, establishes
the elements of the defense. People v. Cooper, 239 Ill. App. 3d
336, 351, 606 N.E.2d 705, 716 (1992). However, "[w]here the
defendant was predisposed to sell the illegal substance and was
motivated solely by profit, the trial court may properly refuse
to instruct the jury on entrapment." People v. DeBeck, 204 Ill.
App. 3d 15, 18, 561 N.E.2d 1081, 1084 (1990).
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Although the State and defendant assert that this
court's review is de novo, we disagree. In People v. Sims, 374
Ill. App. 3d 427, 871 N.E.2d 153 (2007), the Third District
explained the appropriate standard of review as follows:
"'[A] trial court's refusal to issue a
specific jury instruction is reviewed under
an abuse[-]of[-]discretion standard.' [Cita-
tions.] *** [O]ur supreme court in People v.
Everette, 141 Ill. 2d 147, 565 N.E.2d 1295
(1990), stated that '[i]t is a matter of law
whether the defendant has met the evidentiary
minimum entitling him to instructions on an
affirmative defense.' [Citation.] However,
no court in Illinois has interpreted that
statement as an intent by the supreme court
to change the standard of review for jury
instructions to a de novo standard. We
therefore refuse to interpret it as such and
adhere to the abuse[-]of[-]discretion stan-
dard for our review." Sims, 374 Ill. App. 3d
at 431, 871 N.E.2d at 156-57.
See also People v. Douglas, 362 Ill. App. 3d 65, 76, 839 N.E.2d
1039, 1049 (2005); People v. Pinkney, 322 Ill. App. 3d 707, 720,
750 N.E.2d 673, 683 (2000) (rejecting similar arguments that this
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court's review of a trial court's refusal to issue a jury in-
struction is de novo). "'"Abuse of discretion" means clearly
against logic; the question is not whether the appellate court
agrees with the [trial] court, but whether the [trial] court
acted arbitrarily, without employing conscientious judgment,'" or
whether, considering all the circumstances, the court acted
unreasonably and ignored recognized principles of law, which
resulted in substantial prejudice. Long v. Mathew, 336 Ill. App.
3d 595, 600, 783 N.E.2d 1076, 1080 (2003), quoting State Farm
Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083, 732
N.E.2d 1094, 1096 (2000).
Our review of the evidence in this case reveals that
the defendant did not meet his burden of presenting even slight
evidence, which, if believed, would establish the elements of
entrapment that would have entitled him to an instruction.
Indeed, defendant's own testimony showed that he was predisposed
to commit the drug sales. Specifically, defendant admitted that
(1) he had previously known Allison for six years and had made
thousands of dollars working with him, (2) he was not induced by
Shaeffer or Candler to arrange drug deals with Allison, and (3)
he liked the image, lifestyle, and money associated with being a
"big-time" drug dealer.
Moreover, when Shaeffer first met defendant in the
Champaign County jail, Shaeffer was not working for any agency as
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a confidential source. Thus, Shaeffer could not--as an agent of
the State--have improperly induced defendant. See People v.
Gorski, 144 Ill. App. 3d 284, 287-88, 494 N.E.2d 246, 249 (1986)
(where the Second District declined to extend the defense of
entrapment to include the conduct of a private party); see also
Bonner, 385 Ill. App. 3d at 145, 895 N.E.2d at 104 ("[T]he
inducement prong is met when the course of criminal conduct for
which the defendant was convicted originated in the mind of a
government agent who arbitrarily engaged in a relationship with
the defendant and purposely encouraged its growth").
Thus, we reject defendant's argument that the trial
court erred by not instructing the jury on the affirmative
defense of entrapment.
B. The Trial Court's Imposition of Consecutive Sentences
Defendant also argues that the trial court abused its
discretion by imposing consecutive sentences. We disagree.
Section 5-8-4(b) of the Unified Code of Corrections
provides as follows:
"Except in cases where consecutive sent-
ences are mandated, the court shall impose
concurrent sentences unless, having regard to
the nature and circumstances of the offense
and the history and character of the defen-
dant, it is of the opinion that consecutive
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sentences are required to protect the public
from further criminal conduct by the defen-
dant, the basis for which the court shall set
forth in the record." 730 ILCS 5/5-8-4(b)
(West 2006).
"Because the trial court is in the best position to
consider a defendant’s credibility, demeanor, general moral
character, mentality, social environment, and habits, the trial
court's decision to impose consecutive, rather than concurrent,
sentences for multiple crimes will not be reversed on appeal
absent an abuse of discretion." People v. King, 384 Ill. App. 3d
601, 613, 892 N.E.2d 1196, 1206 (2008).
In this case, the trial court based its decision to
impose consecutive sentences on (1) the seriousness of defen-
dant's crimes, (2) defendant's extensive criminal history, (3)
the large quantity of controlled substances defendant was able to
supply, (4) defendant's lack of financial support other than the
drug trade, (5) defendant's disregard for the law by continuing
to engage in supplying controlled substances despite his knowl-
edge of the legal penalties, (6) defendant's questionable charac-
ter, and (7) its belief that consecutive sentences were necessary
to protect the public from defendant's further criminal conduct.
Because the trial court (1) was in the best position to
determine defendant's credibility, demeanor, and general moral
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character and (2) articulated an appropriate basis for its
determination, we conclude that the trial court did not abuse its
discretion by imposing consecutive sentences.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT and TURNER, JJ., concur.
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