People v. Clinton

Sixth Division
February 5, 2010

No. 1-08-0720

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court
) of Cook County
Plaintiff-Appellee, )
)
v. ) 07 CR 2965
)
LAWRENCE CLINTON, )
) Honorable
Defendant-Appellant. ) Charles P. Burns,
) Judge Presiding

JUSTICE McBRIDE delivered the modified opinion of the court upon denial of

rehearing:

Following a January 2008 jury trial, defendant Lawrence Clinton was found guilty of

possession with intent to deliver more than 1 gram but less than 15 grams of a substance

containing heroin. Subsequently, the trial court sentenced defendant to 10 years in the Illinois

Department of Corrections.

Defendant appeals, arguing that: (1) the State failed to prove him guilty beyond a

reasonable doubt because (a) it failed to prove that he possessed more than one gram of heroin

where the forensic chemist combined multiple packets to determine weight before testing for the

presence of a controlled substance, and (b) the evidence was insufficient to prove him guilty of

possession of a controlled substance with intent to deliver where defendant was arrested with 13

packets of suspected narcotics and $40 in cash; and (2) the prosecutor’s closing arguments were

improper and deprived him of a fair trial.

The following evidence was presented at defendant’s jury trial.

Officer Lloyd Mock testified that he is a Chicago police officer assigned to the 11th
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district. The 11th district’s boundaries are south to Roosevelt Road, north to Division Street, east

to Western Avenue and west to Cicero Avenue. On December 17, 2006, Officer Mock reported

for work at 7 a.m. He was working with three other officers, Officer Purvis, Officer Rosito and

Officer Gallegos. They were assigned to patrol a high-crime area within the district, near

Springfield and Grenshaw. The officers were in an unmarked vehicle and were not in uniform,

but had their “stars” displayed around their necks. Officer Mock was in the front passenger seat

of the vehicle while Officer Purvis was driving. Officer Rosito was seated behind Officer Mock

and Officer Gallegos was behind Officer Purvis.

The vehicle was headed southbound on Pulaski and Officer Purvis made a left turn onto

Grenshaw. The 3900 block of West Grenshaw is a residential neighborhood. When they made

the left turn, Officer Mock observed defendant present on the street. Officer Mock identified

defendant in court as the man he saw that day. Officer Mock estimated that he was

approximately 100 to 150 feet away from defendant when he first saw him. There were no other

pedestrians nor any cars being driven on the street at that time. The car continued eastbound,

which was closer to defendant. Officer Mock stated that as the car moved closer, defendant

“looked in our direction, gave us eye contact and immediately turned around.” Officer Mock

said that the lights had not been activated on the car.

Officer Purvis stopped the car and Officer Mock got out. Officer Mock testified that he

was approximately 40 to 50 feet from defendant when he exited the vehicle. As Officer Mock

got out of the vehicle, defendant started to run down an alley and Officer Mock ran after him. As

he was running behind defendant, Officer Mock saw defendant “drop, actually throw to the

ground with his right hand a piece of paper.” Officer Mock stopped and immediately recovered

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the piece of paper while the other officers continued to pursue defendant. When Officer Mock

recovered the piece of paper, he observed that it contained a plastic bag with “several shiny

objects.” Based on his experience, Officer Mock believed it was heroin. Meanwhile, Officers

Purvis and Rosito detained defendant in the alley. Officer Mock further inspected the bag and

saw that the plastic bag contained 13 tinfoil packets containing a white powder suspected to be

heroin. Officer Mock retained control of the suspected narcotics until his return to the 11th

district when he gave it to Officer Rosito, who entered it into inventory.

Officer Atilo Rosito testified at trial that he is a Chicago police officer assigned to the

11th district. His testimony was substantially similar to Officer Mock’s testimony regarding the

officers’ assignment for December 17, 2006. Officer Rosito was approximately 40 to 50 feet

away when he noticed an individual on the street. Officer Rosito identified that individual as

defendant. Once Officer Purvis stopped the vehicle, Officer Rosito got out and defendant began

to run. Officer Rosito was behind Officer Mock while chasing defendant. Officer Rosito

testified that he did not see defendant drop anything, but saw something “when it struck the

ground.” It landed about a foot away from defendant. He continued with Officer Purvis to

pursue defendant as Officer Mock stopped to recover the item. After defendant was detained,

Officer Rosito saw Officer Purvis recover $40 in United States currency from defendant’s

person. When they returned to the 11th district, Officer Rosito completed the inventory for the

suspected narcotics and the $40. Officer Rosito admitted on cross-examination that no cell

phones, pagers or narcotics packaging material was found on defendant.

David Boler testified that in December 2006, he was employed by the Illinois State Police

crime lab as a forensic chemist. Boler left the crime lab in August 2007. Boler stated that on

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December 20, 2006, he received the suspected narcotics recovered from defendant’s arrest.

Boler initially verified that the contents of the bag matched the inventory sheet. Boler then

testified on how he weighed the contents.

“These samples were weighed on what we call a balance.

We take a plastic weigh boat and tare it, which means we negate its

weight, and place all the samples, I placed all the samples into the

weigh boat to get a gross weight for all 13 items.

What I did after that was I took out one item at a time and

empty the contents of the foil packet into a separate weigh boat and

place the foil back onto the balance so that the foil was always

taken into account and so that the weight difference that I was

getting was only the substance that was being tested. I did that

until I reached the maximum weight class for the substance.”

Boler stated that “[t]he total weight was 1.336 grams of substance to be tested.” Boler

then performed a color test which indicated a possible presence of heroin. Boler conducted a

second test called a gas chromatography mass spectrometry (GCMS), which breaks down the

substance into individual components that Boler was able to determine the presence of heroin.

Boler estimated the weight from all packets to be 2.8 grams.

On cross-examination, Boler stated that he performed the two tests from the amount

contained in 6 of the 13 packets. He testified that he did not test the remaining seven packets.

He also admitted that those remaining packets were not weighed and his estimate of the total

weight was based on an average of the six packets that he tested.

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Following Boler’s testimony, the State rested. Defendant moved for a directed verdict,

arguing that the State failed to prove an intent to deliver, which the trial court denied. Defendant

rested without presenting any additional evidence. During the jury instruction conference, the

trial court granted, over defendant’s objection, the State’s request to submit the lesser-included

offense of possession of more than 1 gram but less than 15 grams of a substance containing

heroin to the jury. Following closing arguments, the jury began deliberations and eventually

found defendant guilty of possession with intent to deliver more than 1 gram but less than 15

grams of a substance containing heroin, a Class 1 felony. At his sentencing hearing, the trial

court sentenced defendant to a term of 10 years in prison.

This appeal follows.

First, defendant argues that the State did not prove him guilty of possession with intent to

deliver more than 1 gram but less than 15 grams of a substance containing heroin beyond a

reasonable doubt. Specifically, defendant asserts that the State failed to establish that the weight

was more than one gram because the chemist combined six packets into one mixture before

testing for the presence of narcotics and therefore the evidence did not prove that each packet

contained heroin. The State maintains that the evidence at trial sufficiently established that

defendant possessed more than one gram of heroin.

“When a defendant makes a challenge to the sufficiency of the evidence, his or her claim

is not subject to the waiver rule and may be raised for the first time on direct appeal.” People v.

Woods, 214 Ill. 2d 455, 470 (2005). When this court considers a challenge to a criminal

conviction based upon the sufficiency of the evidence, it is not our function to retry the

defendant. People v. Hall, 194 Ill. 2d 305, 329-30 (2000). Rather, our inquiry is limited to

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“whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct.

2781, 2789 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001). It is the responsibility of

the trier of fact to “fairly *** resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 61 L.

Ed. 2d at 573, 99 S. Ct. at 2789. “If a court determines that the evidence is insufficient to

establish the defendant's guilt beyond a reasonable doubt, the defendant's conviction must be

reversed.” Woods, 214 Ill. 2d at 470.

In controlled substance cases, it is the State’s burden to prove that the substance at issue

is a controlled substance. People v. Hagberg, 192 Ill. 2d 29, 34 (2000). Further, “[t]he

punishment for possession of a controlled substance with the intent to deliver it depends on how

much of it the defendant possessed-or, more precisely, how much of a substance containing a

controlled substance he possessed.” (Emphasis in original.) People v. Coleman, 391 Ill. App. 3d

963, 971 (2009); see also 720 ILCS 570/401(c)(1), (d) (West 2006).

“When a defendant is charged with possession of a specific amount of an illegal drug

with intent to deliver and there is a lesser included offense of possession of a smaller amount,

then the weight of the seized drug is an essential element of the crime and must be proved

beyond a reasonable doubt.” People v. Jones, 174 Ill. 2d 427, 428-429 (1996). Generally, a

chemist is not required to test every sample seized in order to testify as to his or her opinion

regarding the makeup of suspected narcotics. Jones, 174 Ill. 2d at 429. Instead, “random testing

is permissible when the seized samples are sufficiently homogenous so that one may infer

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beyond a reasonable doubt that the untested samples contain the same substance as those that are

conclusively tested.” Jones, 174 Ill. 2d at 429. But when the seized sample is not sufficiently

homogenous, then a portion from each container or sample must be tested to determine the

substance in each container or sample. Jones, 174 Ill. 2d at 429.

In Jones, the supreme court considered whether the State met its burden of proof beyond a

reasonable doubt that the defendant possessed with intent to deliver 1.4 grams of a substance

containing cocaine. There, a total of five bags were recovered containing a white rocky

substance. The forensic chemist tested two of the bags, but not the remaining three. The total

weight of the tested bags was 0.59 grams while the total weight was 1.4 grams. Jones, 174 Ill. 2d

at 428.

The supreme court discussed the decision in People v. Kaludis, 146 Ill. App. 3d 888

(1986), relied upon by the State in this case, which considered the testing of homogenous

samples. In Kaludis, the forensic chemist “performed a tablet-ballistics test which, in essence, is

a visual examination of all the tablets, and this visual examination revealed that all tablets

exhibited the same physical characteristics.” Kaludis, 146 Ill. App. 3d at 891-92. The chemist

found that the tablets were the same size, diameter and roundness with the identical lettering

characteristics, bevelling and scoring. Kaludis, 146 Ill. App. 3d at 892. The chemist performed

two different sets of tests on two groups of three tablets and the tested sample tablets showed a

presence of a controlled substance, which the chemist opined was present in all 100 tablets.

Kaludis, 146 Ill. App. 3d at 892.

In contrast with the homogenous tablets in Kaludis, the Jones court, specifically noting

the common use of lookalike substances, concluded that the white rocky substance at issue was

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not sufficiently homogenous and that it was “conjecture” to assume that the substance in the

three untested bags was cocaine. Jones, 174 Ill. 2d at 430.

“What inference can be drawn concerning the composition

of the three packets not tested? Without more, the answer is none

at all. And in this case, the five packets containing loose

substances cannot be equated with identically marked and stamped

tablets, pills, or capsules. While it is not difficult to speculate, as

did the trial judge, that the remaining three packets may have

contained cocaine, such a finding must be based on evidence and

not upon guess, speculation, or conjecture. Quite simply, the

chemist failed to test a sufficient number of packets to prove

beyond a reasonable doubt that defendant possessed one gram or

more of cocaine.” Jones, 174 Ill. 2d at 430.

After finding that the State failed to meet its burden of proof regarding the untested

packets, the supreme court reduced the defendant’s conviction to a Class 2 felony based on the

weight of the two tested packets. Jones, 174 Ill. 2d at 430.

This case presents a related question, can a chemist combine packets to reach a specific

weight prior to testing for the presence of a controlled substance? Here, Boler testified that he

emptied the contents of six packets onto the scale until the weight surpassed one gram and then

he tested the commingled mixture for the presence of narcotics. The remaining seven packets

were not tested at all.

The Fourth District recently answered that question in the negative. In People v.

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Coleman, 391 Ill. App. 3d 963 (2009), a police detective recovered 15 bags of suspected cocaine.

He weighed the bags at the scene and each bag weighed either 63 or 64 grams. He also field-

tested one of the bags and it tested positive for cocaine. The detective then emptied all 15 bags

into a larger evidence bag, which was sealed and sent for chemical testing. At trial, the State

offered a stipulation that the chemist received the sealed evidence bag and the results of the

testing showed that the bag contained 926 grams of cocaine. Coleman, 391 Ill. App. 3d at 967-

68.

On appeal, the defendant argued that the detective altered or tampered with the suspected

narcotics when he emptied all 15 bags into one evidence bag. The Coleman court pointed out

that under the statutes, “it should be apparent that a police officer's mixing substances together at

the crime scene is not necessarily a matter of indifference to the defendant. The greater the

amount of illegal substance the defendant possesses, the greater the crime-and, for that reason,

the State must prove, beyond a reasonable doubt, the weight of the substance containing the

drug.” Coleman, 391 Ill. App. 3d at 971. After discussing the decisions in Jones and Kaludis,

the court concluded that separate containers of white powder is even less distinctive than white

rocks. Coleman, 391 Ill. App. 3d at 972.

“To illustrate what we mean, assume the police find two

bags on a kitchen table. One is a Baggie containing 15 grams of a

substance containing cocaine. The other is a freezer bag containing

900 grams of pure baking soda, with no intermixture of cocaine.

For the 15 grams in the Baggie, the defendant faces imprisonment

for 6 to 30 years. 720 ILCS 570/ 401(a)(2)(A) (West 2006). For

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the 900 grams of baking soda in the freezer bag, he faces no

punishment at all-for these are two physically separate substances

and baking soda is not a controlled substance. If, before the police

arrived, the defendant dumped the contents of the Baggie into the

freezer bag, the two substances would become one substance- i.e.,

915 grams of a substance containing cocaine-and he would face a

greater penalty of 15 to 60 years' imprisonment. 720 ILCS

570/401(a)(2)(D) (West 2006). Obviously, the defendant would

not want the police doing this commingling for him.

If, to alter the hypothetical, the freezer bag already

contained cocaine mixed in with the baking soda, it would make no

practical difference that the contents of the two bags were

consolidated, for both bags, to begin with, separately contained a

substance containing cocaine and the criminal liability would be

the same regardless of whether the contents of the two bags

remained separate or were consolidated.” Coleman, 391 Ill. App.

3d at 972-73.

Nevertheless, the Fourth District found no error because the defendant had stipulated that

the seized white powder was 926 grams of cocaine. Coleman, 391 Ill. App. 3d at 973. “If, as the

parties stipulated, all of the white powder in People's exhibit No. 2 was cocaine, it follows that

all of the white powder in the 15 bags was cocaine, for People's exhibit No. 2 consisted of the

contents of the 15 bags. [The detective] did not ‘tamper with, or alter,’ the 15 substances by

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mixing them together (the 15 substances were identical: they all were cocaine).” Coleman, 391

Ill. App. 3d at 973-74.

However, our case does not involve a stipulation and we find the analysis in Coleman to

be well reasoned and applicable to the facts before us. Here, Boler combined six packets of

suspected heroin before determining whether each of the packets did, in fact, contain heroin. In

doing so, we now have no way of knowing whether each packet contained heroin or if only one

contained heroin. As the supreme court in Jones reasoned, we cannot speculate that each of the

packets contained heroin. Rather, the evidence must show the presence of heroin in each packet

and Boler failed to test the individual packets to prove beyond a reasonable doubt whether

defendant possessed with intent to deliver more than one gram of heroin. Therefore, the State

failed to prove defendant guilty beyond a reasonable doubt of possession with intent to deliver

more than 1 gram but less than 15 grams of heroin.

Defendant argues that the appropriate remedy is to reverse his conviction. Defendant

asserts that his conviction cannot be reduced to simple possession because the jury was instructed

that in order to prove him guilty of possession, he must possess more than 1 but less than 15

grams of heroin. However, defendant fails to cite any authority to support his assertion that an

outright reversal is the only remedy. Supreme Court Rule 341(h)(7) requires an appellant to

include in its brief an "[a]rgument, which shall contain the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the record relied on." 210 Ill. 2d

R. 341(h)(7). Moreover, it is well settled that a contention that is supported by some argument

but does not cite any authority does not satisfy the requirements of Supreme Court Rule

341(h)(7), and bare contentions that fail to cite any authority do not merit consideration on

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appeal. People v. Nieves, 192 Ill. 2d 487, 503 (2000). Thus, this argument is forfeited.

Nevertheless, the combined mixture did test positive for heroin, and while we have no

accurate measure of how much of the weighed substance was heroin, the Controlled Substances

Act does punish possession with intent to deliver less than one gram. “Although an accused

cannot be convicted of a crime with which he has not been charged, he ‘may 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. Williams, 267 Ill. App. 3d 870, 880

(1994), quoting People v. Jones, 149 Ill. 2d 288, 292 (1992). Under these facts, possession with

intent to deliver a lesser amount and possession of a lesser amount are lesser included offenses.

See People v. Carter, 389 Ill. App. 3d 175, 184 (2009) (a lesser included offense includes all

elements of a greater offense in that it would be impossible to commit the greater offense without

committing the lesser offense). Possession with intent to deliver of more than 1 but less than 15

grams of heroin is a Class 1 felony (720 ILCS 570/401(c)(1) (West 2006)), but possession with

intent to deliver any amount less than one gram is a Class 2 felony (720 ILCS 570/401(d) (West

2006)). The sentencing range for a Class 1 felony is not less than 4 years and not more than 15

years (730 ILCS 5/5-8-1(a)(4) (West 2006)) while a Class 2 felony carries a sentencing range of

not less than 3 years and not more than 7 years (730 ILCS 5/5-8-1(a)(5) (West 2006)). As the

Coleman court articulated, it is in the interest of defendant’s liberty that the State properly test

the individual packets prior to combining the samples to determine the weight.

While the State failed to prove possession with intent to deliver more than one gram, it

did sufficiently establish that defendant did possess some amount of heroin. Thus, defendant’s

conviction could be reduced to possession with intent to deliver of an amount less than one gram,

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a Class 2 felony. However, we must also consider defendant’s next argument that the State

failed to prove that defendant’s possession of heroin was with an intent to deliver before

determining the appropriate result.

Defendant contends that the State failed to prove beyond a reasonable doubt that

defendant possessed the heroin with the intent to deliver. Specifically, defendant asserts that the

circumstantial evidence was not sufficient to prove an intent to deliver. The evidence showed

that defendant was arrested after dropping a package containing 13 packets of suspected heroin

while running from the police. Upon his arrest, the officers recovered $40 in cash from

defendant’s person. Nothing else was recovered from defendant. Further, defendant was not

observed in a transaction or even speaking to anyone, he was walking alone on a Sunday

morning.

Direct evidence establishing an intent to deliver is rare, as such circumstantial evidence is

often used to prove an intent to deliver. People v. Robinson, 167 Ill. 2d 397, 408 (1995). Illinois

courts have used several factors to show an intent to deliver. These factors include: (1) a quantity

of a controlled substance that is too much for personal consumption; (2) the high purity of the

drug confiscated; (3) possession of weapons; (4) possession of large amounts of cash; (5)

possession of police scanners, beepers or cell phones; (6) possession of drug paraphernalia; and

(7) the manner in which the confiscated drugs are packaged. Robinson, 167 Ill. 2d at 408. These

factors are not exhaustive, but simply examples of the factors that courts may consider as

probative of an intent to deliver. People v. White, 221 Ill. 2d 1, 17 (2006), abrogated on other

grounds, People v. Luedemann, 222 Ill. 2d 530 (2006). The supreme court noted that the

quantity of a controlled substance can be sufficient to show an intent to deliver, but the court

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cautioned that “such is the case only where the amount of controlled substance could not

reasonably be viewed as designed for personal consumption.” Robinson, 167 Ill. 2d at 411.

Nevertheless, “[a]s the quantity of controlled substance in the defendant's possession decreases,

the need for additional circumstantial evidence of intent to deliver to support a conviction

increases.” Robinson, 167 Ill. 2d at 413. Illinois courts have stated that where a small amount of

drugs is recovered, the minimum evidence needed to affirm a conviction for possession with

intent to deliver is that the drugs were packaged for sale and at least one additional factor tending

to show an intent to deliver. People v. Blakney, 375 Ill. App. 3d 554, 559 (2007); People v.

Beverly, 278 Ill. App. 3d 794, 802 (1996); People v. Delgado, 256 Ill. App. 3d 119, 123 (1993).

We consider the sufficiency of the evidence to prove an intent to deliver on a case-by-case basis.

Robinson, 167 Ill. 2d at 412-13.

The State relies extensively on the supreme court’s decision in White to support its

position that it established an intent to deliver. In White, the defendant possessed 12 individually

packaged Baggies of rock cocaine, totaling 1.8 grams, and $75 in cash. At the defendant’s trial, a

police officer testified that he was familiar with the type of objects used to consume crack

cocaine, such as, “a round cylinder of some type, such as a car antenna or glass tube with

openings at both ends.” White, 221 Ill. 2d at 17-18. The officer further stated that this amount

of crack cocaine was inconsistent with personal consumption. A second officer testified that the

size of the individual rocks was the typical size of those sold on the street for $10 each. White,

221 Ill. 2d at 18. The officer noted that 12 individual rocks were packaged into separate bags,

and given that packaging and the amount of money, he stated that the defendant was “ ‘most

likely’ ” selling the cocaine. White, 221 Ill. 2d at 18. Both officers testified that they routinely

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patrolled the area where the defendant was arrested because “it was known as a location where

illegal drug activity took place on a continuing basis” and they were familiar with at least five

apartments in which illegal drug sales were ongoing. White, 221 Ill. 2d at 19.

After construing the evidence and the inferences therefrom in favor of the prosecution,

the supreme court concluded that a rational trier of fact could have found the evidence sufficient

to establish an intent to deliver. “While defendant was not carrying a pager, weapon, scale,

cutting agent, or police scanner, he was also not carrying any paraphernalia associated with

personal use of the cocaine. Further, we note that since the cocaine was already packaged for

sale, there was no need for defendant to carry cutting agents or a scale.” White, 221 Ill. 2d at 20.

In the present case, there is even less evidence probative of an intent to deliver than was

present in White. At the time of his arrest, defendant possessed 13 tin foil packets of suspected

heroin and $40 in cash. Defendant did not possess any weapons, a cell phone, a pager or any

drug paraphernalia. The police had not observed defendant in any transactions nor had they

received a tip of suspected drug activity. Significantly, in contrast with the evidence presented in

White, neither officer testified whether the amount recovered was inconsistent with personal

consumption nor was there any testimony regarding the street value of the heroin and the typical

packaging for sale. Additionally, neither officer offered any testimony about any paraphernalia

required for a person to consume heroin. While the officers in this case testified that they were

patrolling a high-crime area, neither stated that it was known for ongoing drug activity. The

officers in White offered substantially more testimony than the officers in the instant case to

support an inference that the defendant was engaged in drug sales. All that was presented by the

State to show an intent to deliver was defendant’s possession of 13 tin foil packets of suspected

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heroin and $40. Even when considered in the light most favorable to the State, this evidence is

not sufficient to prove an intent to deliver beyond a reasonable doubt.

We point out that a recent decision from another division of this court supports our

conclusion. In People v. Sherrod, No. 1-07-0989, slip op. at 8 (October 7, 2009), the third

division reduced a defendant’s conviction for possession with intent to deliver to possession of a

controlled substance. In that case, the evidence presented was that the defendant was pulled over

after turning right on a red light in a car without a license plate. When the officer ran the vehicle

identification number, he discovered that the car was stolen and the defendant was arrested. At

the police station, an officer performed a custodial search of the defendant and recovered $35 and

a clear plastic bag containing 17 knotted clear baggies, which each contained a very small, white

rock-like substance. Subsequent testing of the baggies disclosed that the baggies contained a

total of 1.8 grams of cocaine. Defendant was found guilty of possession with intent to deliver.

Sherrod, slip op. at 2.

On appeal, the State argued that the packaging alone was sufficient evidence of the

defendant’s intent to deliver, but the reviewing court disagreed, noting that no other factors were

present to show an intent to deliver. There was no testimony that the amount was inconsistent

with personal consumption while the defendant had only $35 in cash at the time of his arrest.

Further, no evidence was presented regarding the purity of the recovered drugs and the defendant

did not possess weapons, scanners, beepers, a cellular telephone or drug-trafficking

paraphernalia. Sherrod, slip op. at 4-5. The court noted that it could “find no case where

packaging alone of a small amount of an illegal substance demonstrated intent to deliver.”

Sherrod, slip op. at 8. Accordingly, the court held that the evidence was insufficient to sustain a

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conviction for possession with intent to deliver. Sherrod, slip op. at 8.

Finally, defendant asserts that he was denied his right to a fair trial when the prosecutors

made improper comments in closing arguments. Specifically, he argues that these comments

misstated the facts and the law. The State maintains that the challenged comments were either

proper, invited by defense counsel’s argument or cured by the trial court. Since we have already

concluded that the State failed to prove defendant guilty of possession with intent to deliver more

than one gram of a substance containing heroin, we consider whether defendant is entitled to a

new trial of the lesser-included charge of unlawful possession.

Initially, the State points out that defendant failed to object to either comment during trial

nor did he specifically raise a challenge to either comment in his posttrial motion. Instead,

defendant’s posttrial motion made one general allegation that “The Assistant State’s Attorney

made prejudicial, inflammatory, and erroneous statements in closing arguments designed to

arouse the prejudice and passions of the jury.” “To preserve claimed improper statements during

closing argument for review, a defendant must object to the offending statements both at trial and

in a written posttrial motion.” People v. Wheeler, 226 Ill. 2d 92, 122 (2007). Defendant

acknowledges his forfeiture of this issue, but asks this court to review the raised comments for

plain error.

Supreme Court Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d

R. 615(a). “Under the plain error rule, issues not properly preserved may be considered by a

reviewing court under two limited circumstances: (1) where the evidence is closely balanced, so as

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to preclude argument that an innocent person was wrongfully convicted; or (2) where the alleged

error is so substantial that it affected the fundamental fairness of the proceeding, and remedying the

error is necessary to preserve the integrity of the judicial process.” People v. Hall, 194 Ill. 2d 305,

335 (2000). “However, before invoking the plain error exception, ‘it is appropriate to determine

whether error occurred at all,’ because without error, there can be no plain error.” People v.

Smith, 372 Ill. App. 3d 179, 181 (2007), quoting People v. Wade, 131 Ill. 2d 370, 376 (1989).

Therefore, we will review the issue to determine if there was any error before considering it

under plain error.

Generally, a prosecutor is given wide latitude in closing arguments, although his or her

comments must be based on the facts in evidence or upon reasonable inferences drawn

therefrom. People v. Page, 156 Ill. 2d 258, 276 (1993). “The prosecutor has the right to

comment on the evidence and to draw all legitimate inferences deducible therefrom, even if they

are unfavorable to the defendant.” People v. Simms, 192 Ill. 2d 348, 396 (2000). “Whether a

prosecutor's comments or arguments constitute prejudicial error is evaluated according to the

language used, its relation to the evidence, and the effect of the argument on the defendant's right

to a fair and impartial trial.” Simms, 192 Ill. 2d at 396. “In reviewing comments made at

closing arguments, this court asks whether or not the comments engender substantial prejudice

against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from

them.” Wheeler, 226 Ill. 2d at 123. “Prosecutorial misconduct warrants reversal only if it

‘caused substantial prejudice to the defendant, taking into account the content and context of the

comment[s], its relationship to the evidence, and its effect on the defendant's right to a fair and

impartial trial.’ ” People v. Love, 377 Ill. App. 3d 306, 313 (2007), quoting People v. Johnson,

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208 Ill. 2d 53, 115 (2004). While a prosecutor's remarks may sometimes exceed the bounds of

proper comment, the verdict must not be disturbed unless it can be said that the remarks resulted

in substantial prejudice to the accused, such that absent those remarks the verdict would have

been different. People v. Byron, 164 Ill. 2d 279, 295 (1995). “If the jury could have reached a

contrary verdict had the improper remarks not been made, or the reviewing court cannot say that

the prosecutor's improper remarks did not contribute to the defendant's conviction, a new trial

should be granted.” Wheeler, 226 Ill. 2d at 123. “The trial court may cure errors by giving the

jury proper instructions on the law to be applied; informing the jury that arguments are not

themselves evidence and must be disregarded if not supported by the evidence at trial; or

sustaining the defendant's objections and instructing the jury to disregard the inappropriate

remark.” Simms, 192 Ill. 2d at 396-97. We review closing arguments in their entirety and the

complained-of comments must be viewed in context. Wheeler, 226 Ill. 2d at 122.

Defendant first alleges that a comment from the State’s rebuttal closing argument

misstated the law.

“You know what, my partner Jeff Kent touched on this, but

I will make it a little more clear. The packaging. Circumstantial

evidence. Really easy way to think about it. If any of you all have

bought a 12-pack. At a store. You have gotten the 12-pack. And

that typically is not all for you. That is something that you are

buying, not to be consumed all at one time. It is something that

you have that typically you share between everyone else. That’s a

type of reasonable inference that you can make here today based on

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just the packaging alone.”

Defendant contends that this is an improper analogy that bolstered the State’s case and

incorrectly inferred to the jury that packaging alone was sufficient to prove intent to deliver. We

disagree. The prosecutor made an analogy to a 12-pack of beer or soda as a way to relate to the

number of individual packets recovered as not being for personal use. This was a proper

inference based upon the evidence. Further, the prosecutor specifically noted that packaging is

circumstantial evidence. This comment was not improper.

Defendant also complains of the following comment stated by the prosecutor during

closing arguments.

“In this case circumstantial evidence is what you would use

in determining the intent part of this case. Again, I bring it back to

the packaging. The painstaking detail the defendant did to

package this. Inside the paper, plastic bag, tin foil packet. Each

tin foil packet. Not one, not two, not three, but 13 tin foil packets.”

(Emphasis added.)

Defendant argues that this comment misstates the facts of the case as no evidence was

presented showing that defendant packaged the heroin. We agree with defendant. This statement

is not an accurate comment on the evidence at trial. No witness testified that defendant was seen

packaging the drugs. However, we do not find that this single comment substantially prejudiced

defendant. “While a prosecutor may not make arguments or assumptions that have no basis in

evidence, improper comments or remarks are not reversible error unless they are a material factor

in the conviction or cause substantial prejudice to the accused.” People v. Starnes, 374 Ill. App.

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3d 132, 135 (2007). This comment, while improper, was not a material factor in defendant’s

conviction to warrant a new trial. Thus, we decline to grant defendant a new trial based on

prosecutorial misconduct.

In a petition for rehearing, the State has asserted that the forensic chemist did test each of

the 6 packets individually, not collectively. In support, the State attached Boler’s laboratory

worksheets to confirm that each packet was tested individually. However, the State’s submission

of these worksheets is improper because the worksheets were not included in the record on

appeal. Evidence that was not before the trier of fact should not be used by the reviewing court

to determine the sufficiency of the evidence on appeal. People v. Kluppelberg, 257 Ill. App. 3d

516, 536 (1993); see also People v. Tipton, 78 Ill. 2d 477, 487 (1980). We also feel constrained

to point out that this type of hearsay evidence, a chemist’s report, would generally not be

admitted at a trial. We have again reviewed Boler’s testimony as to his testing procedures and

point out that he never stated whether he performed the tests on each packet individually or on a

combined amount. Boler’s testimony does not state that he performed three color tests on each

of the six packets, for a total of 18 tests, rather he simply said that he performed three color tests.

In fact, his testimony suggests he tested a combined amount of the packets. Additionally, it is

unclear if he weighed the substance in six separate weigh boats or one weigh boat. But again, the

record supports the conclusion that he emptied all the packets in one weigh boat.

Further, this case was fully briefed and oral arguments were held. In the State’s brief, it

agreed that “the forensic chemist combined the contents of six packets, with a weight of 1.336

grams, which is greater than the statutorily required one gram, and then tested that substance and

positively determined that it was heroin.” As noted earlier, the State relied upon Kaludis to

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suggest that testing of homogenous substances, such as pills or capsules, is analogous to the

testing procedures used for powder substances, like the heroin in this case. Based on the

supreme court’s decision in Jones, we considered and rejected this argument earlier in this

opinion. The State made no argument that the forensic chemist tested each of the six packets

individually, but now raises this new argument for the first time in a petition for rehearing with a

report that was not part of the record on appeal, which is a violation of Supreme Court Rule

367(b) (210 Ill. 2d R. 367(b)) (“The petition shall state briefly the points claimed to have been

overlooked or misapprehended by the court, with proper reference to the particular portion of the

record and brief relied upon, and with authorities and argument, concisely stated in support of the

points”).

Finally, the result here would remain the same regardless of the testing because we have

concluded that the State failed to prove possession with an intent to deliver and the appropriate

lesser charge is unlawful possession of less than 15 grams of a controlled substance, a Class 4

felony.

Accordingly, we reduce defendant’s conviction pursuant to Supreme Court Rule

615(b)(3) (134 Ill. 2d R. 615(b)(3)) to unlawful possession of less than 15 grams of a substance

containing heroin, a Class 4 felony (720 ILCS 570/402(c) (West 2006)). We vacate defendant's

sentence and remand the cause to the circuit court for a new sentencing hearing.

Reversed and remanded.

CAHILL, P.J., and J. GORDON, J., concur.

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