SIXTH DIVISION
December 10, 2010
No. 1-09-2840
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 17933
)
EMMERITT ADAIR, ) The Honorable
) Arthur F. Hill, Jr.,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
Following a jury trial, the defendant was convicted of two
counts of possession of a controlled substance and sentenced to
seven years' imprisonment. The defendant contends the evidence
was insufficient to prove he possessed at least 15 but less than
200 pills of methylenedioxymethamphetamine (MDMA or ecstacy) and
at least 5 but less than 15 grams of methamphetamine, where the
forensic chemist commingled each pill and powder before testing
for the presence of each controlled substance. The defendant
also challenges the imposition of certain fees and fines,
contending some should be offset by the daily $5 presentencing
custody credit he earned.
We reduce the defendant's convictions to the lowest class
for each offense; the State failed to prove the essential
elements of quantity of MDMA pills and weight of methamphetamine
because the testing method employed by the chemist rendered her
No. 1-09-2840
quantity and weight findings speculative. We affirm the
imposition of the $200 DNA analysis fee and the $25 court
services fee, but vacate the $5 court system fee. Based on his
days in presentencing custody, the defendant is entitled to
$1,970 credit against all fines (but not fees) imposed. We
remand for a new sentencing hearing.
BACKGROUND
The defendant was arrested with a bag containing suspected
narcotics in the form of 24 pills and some loose powder according
to the arresting officer. The defendant was indicted on two
counts: one count of possession with intent to deliver more than
15 but less than 200 pills of MDMA, and one count of possession
with intent to deliver at least 5 but less than 15 grams of a
substance containing methamphetamine, based on the crime lab
results. A jury found the defendant not guilty of intent to
deliver, but guilty of possession of each controlled substance in
the quantity and weight charged in the indictment. He was
sentenced to seven years’ imprisonment.
Chicago police officer Thomas Krob testified that on August
29, 2008, at approximately 10:30 p.m., while on patrol in a
marked squad car with his partner, Officer Phil Schulter, he
observed a 1991 blue Buick Regal being driven on Roosevelt Road
in Chicago without headlights. The officers conducted a traffic
stop of the vehicle at a gas station located at Roosevelt and
Independence. Officer Krob approached the driver