THIRD DIVISION
August 30, 2006
No. 1-04-3295
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 04 CR 529
)
DAVID SCOTT, ) Honorable
) Rickey Jones,
Defendant-Appellant. ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Following a bench trial, defendant, David Scott, was convicted of possession of a controlled
substance (720 ILCS 570/402(a)(2)(A) (West 2002)) and sentenced to five years=
imprisonment. On appeal, defendant contends that: (1) the State failed to prove his guilt beyond a
reasonable doubt because there was no evidence that he actively or constructively possessed the cocaine
discovered by police in a mailbox; (2) the extraction and storage of his DNA profile violates his fourth
amendment rights; (3) the statute mandating the $5 spinal cord fee is an unconstitutional violation of his due
process rights; (4) he is entitled to a $5-per-day credit against his $1,000 controlled substance
assessment; and (5) the $20 fee for the victims fund was assessed erroneously. For the following
reasons, we affirm defendant=s conviction as modified and remand for resentencing.
BACKGROUND
The following evidence was adduced at defendant=s trial. Chicago police officer Edwin Utreras
testified that at approximately 10 p.m. on November 12, 2003, he and his partner began narcotics
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surveillance of 3653 South Federal Street from their unmarked vehicle located in an adjacent parking
lot. Utreras was stationed approximately 150 feet away from a large group of mailboxes located in
between the buildings of 3653 and 3651 South Federal. Utreras observed defendant and
codefendant Angela Watson standing near the mailboxes. Moments later, Watson opened a mailbox with
a key, retrieved a golf-ball-sized bag of cocaine, and handed the bag to defendant. Defendant and Watson
then walked over to the 3653 South Federal building and entered the lobby area.
Approximately 10 to 15 minutes later, Utreras observed defendant and Watson exit the lobby
area and return to the same mailbox, where Watson again opened the mailbox door with a key, retrieved a
golf-ball-sized bag of cocaine, and handed the bag to defendant. On cross-examination, Utreras
acknowledged that after each time defendant and Watson went to the mailbox to retrieve the cocaine,
Watson remained in possession of the key. Defendant and Watson then reentered the building lobby and
remained there for between 10 and 15 minutes. While defendant and Watson were still in the building,
Officer Utreras left his surveillance position and began to approach the mailboxes. Defendant and Watson
returned to the mailboxes as Utreras approached. Defendant saw Utreras walking toward him, then handed
Watson a golf- ball-sized bag of cocaine and walked away. Watson again opened the mailbox with a key,
placed the bag in the mailbox, and walked away from the area, leaving the key inserted in the mailbox.
Defendant and Watson were subsequently detained by enforcement officers working in concert with
Utreras. Utreras opened mailbox No. 306 and recovered two plastic bags containing cocaine. The
parties stipulated that a baseball-sized bag (the larger bag) contained 36.2 grams of cocaine and the golf-
ball-sized bag (the smaller bag) contained 10.3 grams of cocaine.
Defendant presented two witnesses at trial to testify on his behalf. Marquetta Fitts, defendant=s
friend, testified that she was at the Watsons= apartment with defendant and Watson on the night of the
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incident. According to Fitts, all three left the apartment to go to the store. They were stopped by the
police in the building lobby and held for two hours. Watson=s mother, Lilly Watson, testified that she lived
with Watson in apartment No. 306 at 3653 South Federal. She also testified that defendant
was Watson=s boyfriend and was currently staying in their apartment. Defendant and Watson also had
three children together. Watson=s mother stated that mailbox No. 306 belonged to their unit.
According to her, the police searched the residence that night. Officer Chris Savikes testified in rebuttal
that he never saw any police officers go into apartment No. 306 and that defendant and Watson were
transported to the police station about 10 or 15 minutes after they were arrested.
The trial court found Officer Utreras credible and Fitts and Watson=s mother incredible. The
court found defendant guilty of possession of a controlled substance weighing more than 15 grams but less
than 100 grams and subsequently sentenced him to five years= imprisonment.
ANALYSIS
On appeal, defendant contends that the State failed to prove beyond a reasonable doubt that he
possessed more than 15 grams of cocaine because it never established that he actually or constructively
possessed the larger bag found in the mailbox. Specifically, defendant argues that he neither lived in the
Watsons= apartment nor possessed a key to the mailbox. Therefore, defendant maintains he could only have
been found guilty of possessing the 10.3 grams of cocaine and asks this court to vacate his conviction and
remand his case for resentencing on the lesser amount of cocaine.
When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, the
appellate court will not retry the defendant. People v. Smith, 185 Ill. 2d 532, 541, 708
N.E.2d 365, 369 (1999). Rather, in such cases the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
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the essential elements of the crime beyond a reasonable doubt. Smith, 185 Ill. 2d at 541, 708
N.E.2d at 369. Thus, it is the court's duty to carefully examine the evidence while giving due
consideration to the fact that the trier of fact saw and heard the witnesses. Smith, 185 Ill. 2d at 541,
708 N.E.2d at 369. If, however, after such consideration the court is of the opinion that the
evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, it must reverse the
conviction. Smith, 185 Ill. 2d at 541, 708 N.E.2d at 369.
To support a finding of possession of a controlled substance, the State must prove beyond a
reasonable doubt that the defendant had knowledge of the presence of the narcotics and that the narcotics
were in his immediate and exclusive control. People v. Smith, 288 Ill. App. 3d 820, 823,
681 N.E.2d 80, 82 (1997). Possession of drugs may be constructive. Constructive
possession exists without actual personal present dominion over a controlled substance, but there must be an
intent and capability to maintain control and dominion. People v. Frieberg, 147 Ill. 2d 326, 361,
589 N.E.2d 508, 524 (1992). The mere presence in the vicinity of a controlled substance
cannot establish constructive possession. People v. Adams, 242 Ill. App. 3d 830, 833, 610
N.E.2d 763, 765 (1993).
In the present case, the State failed to establish that defendant had the capability to maintain control
and dominion over the larger bag of cocaine found in the mailbox. The evidence at trial revealed that defendant
never possessed or had access to the key needed to open the mailbox where the larger bag of cocaine was
later found. Each time defendant and Watson approached the mailbox, Watson opened the mailbox with the
key and Watson retained possession of the key. Without the key, the mailbox containing the larger bag of
cocaine was not accessible to defendant. Defendant could not control that which he could not access. As
such, the State failed to prove that defendant had the requisite capacity to maintain dominion and control over
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the larger bag of cocaine.
We acknowledge the State=s argument that habitation in the premises where narcotics are
discovered raises the inference that defendant had control over them. People v. Cunningham, 309 Ill.
App. 3d 824, 828, 723 N.E.2d 778, 782 (1999). Proof of residency in the form
of rent receipts, utility bills and clothing in closets is relevant to show defendant lived on the premises where
narcotics are found and, therefore, controlled them for purposes of establishing constructive possession of
narcotics. Cunningham, 309 Ill. App. 3d at 828, 723 N.E.2d at 782.
Here, there was no such relevant evidence presented. Rather, the only evidence submitted on this
element was Watson=s mother=s testimony that defendant had lived at the Watsons= apartment Aon and off@
in the past and had been staying there for Aabout a week or so@ prior to the night of the incident. Even
assuming that defendant was residing at the Watsons= home, the cocaine was not discovered on their
premises, but in a mailbox outside their building. There was no evidence that defendant had access to the
mailbox key. Thus, the evidence established only his mere presence in the vicinity of the larger bag of
cocaine and not the capacity to maintain control over it. See, e.g., People v. Ortiz, 91 Ill. App. 3d
466, 471-72, 414 N.E.2d 1072, 1076 (1980) (affirming conviction for possession of
heroin where drugs were found in a locked storage cabinet and defendant, when asked by police to open it,
removed the cabinet key from his key ring and handed it to police). Accordingly, the State failed to prove
the element of possession with respect to the larger bag of cocaine. Therefore, we reverse defendant=s
conviction for the Class 1 felony. 720 ILCS 570/402(a)(2)(A) (West 2002).
Nevertheless, defendant concedes, and the evidence was sufficient to establish, that defendant
possessed the smaller bag (10.3 grams) of cocaine, a Class 4 felony. 720 ILCS 570/402(c)
(West 2002). Although an accused cannot be convicted of a crime with which he has not been charged,
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he Amay be convicted of an offense not expressly included in the charging instrument if that offense is a
>lesser included offense= of the offense expressly charged.@ People v. Jones, 149 Ill. 2d 288,
292, 595 N.E.2d 1071, 1073 (1992). Additionally, pursuant to Supreme Court Rule
615(b)(3), the reviewing court may reduce the degree of the offense for which defendant was convicted.
134 Ill. 2d R. 615(b)(3). Consequently, we reduce the degree of the offense to possession of more
than 1 gram but less than 15 grams of cocaine. This lesser offense carries with it a prison term of Anot
less than 1 year and not more than 3 years@ (730 ILCS 5/5-8-1(7) (West 2002)), whereas
the greater offense mandated a prison sentence of Anot less than 4 years and not more than 15 years.@
720 ILCS 570/402(a)(2)(A) (West 2002). Therefore, we remand for resentencing on
the lesser included offense. In light of our ruling, we need not address defendant=s additional contentions.
Affirmed as modified; cause remanded with directions.
HOFFMAN, P.J., and KARNEZIS, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DAVID SCOTT,
Defendant-Appellant.
________________________________________________________________
No. 1-04-3295
Appellate Court of Illinois
First District, Third Division
Filed: August 30, 2006
_________________________________________________________________
JUSTICE THEIS delivered the opinion of the court.
Hoffman, P.J., and Karnezis, J., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Rickey Jones, Judge Presiding
_________________________________________________________________
For APPELLANT, Michael J. Pelletier, State Appellate Defender
Ryan T. Neumeyer, Assistant Appellate Defender
Office of the State Appellate Defender
203 N. LaSalle St., 24th Floor
Chicago, IL 60601
For APPELLEE, Richard A. Devine, State=s Attorney
James E. Fitzgerald, Assistant State=s Attorney
Whitney Bond, Assistant State=s Attorney
Paula Borg, Assistant State=s Attorney
300 Richard J. Daley Center
Chicago, IL 60602