People v. Allen

2016 IL App (4th) 140137
FILED
May 3, 2016
Carla Bender
NO. 4-14-0137
4th District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
TREMAINE ALLEN, ) No. 11CF1772
Defendant-Appellant. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Steigmann and Appleton concurred in the judgment and opinion.

OPINION

¶1 In August 2013, a jury found defendant, Tremaine Allen, guilty of controlled

substance trafficking, unlawful criminal drug conspiracy, and unlawful possession of a

controlled substance with the intent to deliver. In November 2013, the trial court sentenced

defendant to 30 years in prison.

¶2 On appeal, defendant argues (1) the State failed to prove him guilty beyond a

reasonable doubt and (2) his right to confrontation was violated. We affirm.

¶3 I. BACKGROUND

¶4 In December 2011, the State charged defendant with several drug-related counts.

Count I alleged defendant and Robert Castillo committed the offense of controlled substance

trafficking (720 ILCS 570/401.1 (West 2010)), alleging they knowingly and without lawful

authority caused to be brought into the State of Illinois 900 grams or more of a substance
containing cocaine with the intent to deliver that controlled substance. Count II alleged

defendant committed the offense of unlawful criminal drug conspiracy (720 ILCS 570/405.1

(West 2010)), alleging he, with the intent that the offense of unlawful possession of a controlled

substance with the intent to deliver be committed, agreed with Castillo and Saville McKnight to

the commission of that offense in that they agreed to possess with the intent to deliver 900 grams

or more of a substance containing cocaine and thereafter obtained 900 grams or more of a

substance containing cocaine so that said possession with the intent to deliver could be made.

Count IV alleged defendant and Castillo committed the offense of unlawful possession of a

controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2010)), alleging

they knowingly and unlawfully possessed with the intent to deliver 900 grams or more of a

substance containing cocaine. Defendant pleaded not guilty.

¶5 In August 2013, defendant's jury trial commenced. Decatur police detective Chad

Larner testified the street-crimes unit began investigating McKnight in 2011 based on

information that he was trafficking "large amounts of cocaine" into Macon County. Officers also

became aware of Keon Davis, who was distributing large quantities of crack cocaine in Decatur.

A traffic stop of Davis revealed 35 grams of cocaine base and crack cocaine and a digital scale.

Davis agreed to assist the police with their investigation of McKnight.

¶6 On November 12, 2011, officers from the Decatur police department and agents

from the Drug Enforcement Administration (DEA) were monitoring McKnight's calls to Amtrak

and Southwest Airlines regarding travel between Illinois and Texas. Larner learned defendant

purchased an Amtrak ticket to travel from Dallas to St. Louis on November 13, 2011. Officers

traveled to the train station in St. Louis, and Detective Jonathan Jones boarded the train and sat

behind defendant. Larner and other officers then traveled to Springfield to see if defendant

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exited the train. Larner stated defendant exited the train carrying a black nylon duffel bag and a

black laptop bag. The train conductor later gave defendant a blue and white duffel bag from the

luggage compartment.

¶7 Defendant left the train station via taxi and traveled to Decatur. Defendant exited

the taxi at the home that his sister, Elise Allen, shared with McKnight. Wanting to know

whether defendant had transported a large quantity of cocaine to Decatur from Texas for

McKnight, Larner contacted Davis to arrange a meeting with McKnight. Larner equipped Davis

with audio and video equipment and supplied him with $900. Davis's visit to McKnight's house

was recorded, and the video and still images from the video were admitted into evidence and

shown to the jury. At one point, the video showed two bags of a white powdery substance on a

kitchen counter near where McKnight was using a microwave. The video showed McKnight

wearing a surgical style mask while converting powder cocaine into crack cocaine. One of the

images showed defendant standing in the doorway of the room adjoining the kitchen. Davis

purchased cocaine from McKnight and provided the cocaine to the police.

¶8 Between November 13 and November 18, 2011, police officers intercepted

conversations between McKnight and others. Larner decided to determine the location of

defendant by "pinging" his cellular telephone. On November 18, 2011, Larner "pinged"

defendant's phone and discovered the phone was in Atoka, Oklahoma. Larner was able to

confirm defendant was traveling along a Greyhound bus route. Officers proceeded to St. Louis,

where the bus was scheduled to arrive on November 19, 2011. Two officers identified defendant

and maintained surveillance on him and his bags once he arrived in St. Louis. Larner stated

officers were going to arrest defendant in Springfield for an outstanding warrant. Once the bus

arrived in Springfield, officers boarded the bus and explained they were conducting a

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transportation safety initiative. After defendant made a furtive movement, Larner drew his

weapon and ultimately arrested him on an outstanding warrant for a traffic offense.

¶9 Upon questioning from Larner, defendant explained he was traveling with a blue

and white duffel bag. Defendant stated he was responsible for all the contents inside the bag,

packed it himself, and consented to a search of it. Upon inspection, Larner found a black duffle

bag, which contained a pillow, a fleece blanket, and a manila envelope. When questioned about

the envelope, defendant stated, "someone must have put it in there." Larner obtained a search

warrant for the envelope. Inside, he found some dryer sheets and two cylindrical items, about

the size of soda cans, covered in duct tape. Larner removed the duct tape, and a field test of the

substance inside the packaging revealed the presence of cocaine.

¶ 10 Decatur police detective Scott Rosenbery testified he conducted surveillance at

the bus station in St. Louis on November 19, 2011. Inside the terminal, Rosenbery observed

defendant place a blue and white suitcase near the doors and walk away into the lobby area.

During the time defendant left the bag unattended, Rosenbery never saw anyone else touch the

suitcase. When defendant returned to the terminal after 10 to 20 minutes, he opened the suitcase

before sitting down. Once the bus to Springfield arrived, defendant took possession of the

suitcase and lined up to get on board. Rosenbery and another officer boarded the bus to conduct

surveillance. Rosenbery stated officers arrested defendant when the bus reached Springfield.

¶ 11 Saville McKnight testified he had been convicted of conspiracy to possess a

controlled substance with the intent to deliver in federal court and received a 40-year sentence.

In 2011, McKnight began purchasing cocaine in Texas and transporting it back to Illinois. After

one of McKnight's suppliers was raided by the police, an acquaintance, Carlos Martinez,

contacted McKnight and stated he knew of another man, Robert "Chino" Castillo, who could

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supply McKnight with cocaine. McKnight flew down to Texas and asked defendant for a ride.

McKnight stated defendant thought he was buying clothes and, given that defendant saw him

with a lot of money, defendant asked if there was any way he could make some extra money.

After dropping off McKnight at Martinez's house, McKnight purchased cocaine from Castillo.

McKnight stated Castillo wrapped the cocaine in duct tape. After calling defendant for a ride,

McKnight told him he could earn $1,500 to $2,000 by transporting the package to Decatur.

Defendant eventually arrived via taxi at McKnight's house in Decatur. McKnight removed the

package from defendant's bag and "started messing with it." Davis then showed up to buy

cocaine, but first McKnight had to cook the powder cocaine into crack cocaine.

¶ 12 A few days later, McKnight flew down to Texas. He wanted to purchase a

kilogram of cocaine but only had $20,000. Given that McKnight was $5,000 short, Castillo

"took some of the cocaine off." The cocaine was then wrapped in duct tape. McKnight called

defendant and later told him he would pay him to transport another package to Decatur.

¶ 13 Robert Castillo testified he had been charged with calculated criminal drug

conspiracy, unlawful possession of a controlled substance with the intent to deliver, and unlawful

criminal drug conspiracy in the case involving defendant. By testifying, he hoped to receive

consideration from the State. He stated McKnight purchased cocaine from him. He planned to

rob McKnight once he earned his trust.

¶ 14 In November 2011, Castillo and Martinez arranged to meet with McKnight to sell

cocaine. Castillo and McKnight met at the dealer's house. McKnight wanted to purchase a

kilogram of cocaine but only had $20,000. The dealer then took off "about 100 grams off the

kilo." Once the transaction was complete, McKnight called defendant to pick him up.

Defendant came into the house with a gift bag, from which he pulled out condoms and gloves "to

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wrap up the kilos." Once finished, defendant put the cylinders in the bag and left the house.

¶ 15 Richard Dollus, a member of the DEA, testified he participated in an investigation

of McKnight in 2011. Dollus testified to several phone calls and text messages that took place

between defendant and McKnight. After defendant was arrested in Springfield on November 19,

2011, Dollus allowed him to keep his phone while waiting to be interviewed in hopes he would

contact McKnight. A text defendant sent to McKnight read: "Busted!!!!! Don't text back or

call. In police station. Springfield." Later, when Dollus asked him about the manila envelope

found in his suitcase, defendant said he did not know where it came from and someone must

have put it in his bag when he was in St. Louis.

¶ 16 Robert Krefft, a forensic scientist with the DEA, testified as an expert in forensic

chemistry. He stated Kristen Beer, a forensic scientist with the DEA, performed the analysis of

the substances in this case. At the time of the trial, Beer was serving in Afghanistan with the

United States Coast Guard. Krefft stated he reviewed her notes and reports as they related to the

exhibits. Krefft then testified regarding how tests are conducted when exhibits are received. He

stated the tests run by Beer were the same tests he would conduct and were regularly relied upon

by experts in the field. In looking at exhibit No. 6 and the tests conducted on the contents, Krefft

opined it consisted of 26.4 grams of crack cocaine. Exhibit No. 7A was 916.9 grams of a

substance containing cocaine in powdered form.

¶ 17 Joseph Ambrozich, a fingerprint examiner with the DEA, testified his analysis of

a plastic Baggie in the duct-taped packages did not reveal fingerprints belonging to defendant.

Ambrozich was able to identify the latent prints as belonging to Castillo.

¶ 18 Anastasia Petruncio, a fingerprint specialist with the DEA, testified she examined

exhibit No. 8, the manila envelope. She found two latent prints suitable for comparison. One

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latent print came from defendant's left-hand ring finger. The other latent print came from

defendant's right ring finger and the "interdigital" of his right palm.

¶ 19 Defendant testified in his own defense. He stated he was 38 years old and lived in

Duncanville, Texas, with his wife at the time of his arrest. He worked at Wells Fargo Bank as a

"tele-banker" and was in the process of getting a new job at Chase Bank. Defendant stated

McKnight visited Dallas in October and November 2011 and defendant would pick him up and

drop him off. Defendant traveled from Dallas to Springfield on or about November 12, 2011, via

Amtrak to pick up a van to sell in Dallas. He brought a manila envelope to McKnight but he did

not know what was inside. Defendant asked him if it contained drugs, and McKnight responded

in the negative.

¶ 20 Defendant recalled another instance when he arrived at a house in Dallas and gave

McKnight a box containing a food-saver, Teflon spray, and duct tape. Defendant stayed in the

car while McKnight took the items inside and returned 10 to 15 minutes later.

¶ 21 McKnight gave defendant another envelope to carry from Dallas to Decatur.

Defendant opened it and found a "large sum of money." Defendant took the money to the bank

where he worked, and bank employees counted the money and completed a currency transaction

report. Defendant planned to travel to Decatur to pick up the van. When he arrived at the

Amtrak station, he saw "a lot of federal vehicles" and, because of his concerns with traveling

with the large amount of cash, he decided to take the bus.

¶ 22 On the bus, defendant took his blue travel bag, which included a black bag, and

two other bags. Police officers escorted him off the bus in Springfield. Detective Larner asked

if he packed his bags, and defendant stated he did. When asked if the bag could be searched,

defendant said, "Yes." Defendant stated the black bag had a pillow, a blanket, and the money.

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He had checked in Tulsa and St. Louis to make sure the envelope containing the money was still

there. When defense counsel asked how his finger and palm prints appeared on exhibit No. 8,

the manila envelope from the black bag, defendant stated, "the only thing that I can go with is

that I did reach my hand in St. Louis and in Oklahoma to touch the bag—the package to make

sure it was there, the original package that I had." When Larner pulled out the envelope,

defendant said, "That's not mine." Defendant then asked that it be opened because he wanted to

see what it was. Larner declined, stating he wanted to obtain a search warrant. While he was in

custody, defendant sent a text message to McKnight. He stated the "busted" text referred to

being caught with the money.

¶ 23 Following closing arguments, the jury found defendant guilty on all counts.

Thereafter, defense counsel filed a posttrial motion, arguing, inter alia, the State's evidence

failed to prove defendant guilty beyond a reasonable doubt. On November 1, 2013, the trial

court denied the motion. At the sentencing hearing, the State indicated counts II and IV merged

with count I. The court sentenced defendant to 30 years in prison on count I.

¶ 24 After sentencing, the trial court directed the circuit clerk to file a notice of appeal

on defendant's behalf. On November 6, 2013, defendant filed a pro se motion to reconsider his

sentence. On November 8, 2013, the trial court entered an order striking the notice of appeal.

On November 12, 2013, the circuit clerk filed a notice of appeal from the November 1, 2013,

judgment. On February 3, 2014, the court conducted a hearing, wherein defense counsel

indicated he did not wish to adopt defendant's pro se motion because the court imposed the

minimum sentence. The court ordered the motion stricken because defendant was represented by

counsel. The February 3, 2014, docket entry states, "Notice of Appeal reinstated." On February

20, 2014, the circuit clerk filed a notice of appeal. On February 28, 2014, appellate counsel filed

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an amended notice of appeal, referring to February 3, 2014, as the date of judgment or order and

indicating the appeal involved defendant's conviction, sentence, and the order striking the motion

to reconsider the sentence.

¶ 25 II. ANALYSIS

¶ 26 A. Jurisdiction

¶ 27 Initially, we note the State argues this court is without jurisdiction over

defendant's case, claiming his appeal was not timely filed. The State contends defendant's timely

filed pro se motion to reconsider his sentence was a nullity because he was represented by

counsel and the trial court erred in striking his original notice of appeal.

¶ 28 The filing of a notice of appeal is jurisdictional. Ill. S. Ct. R. 606(a) (eff. Mar. 20,

2009). Under Illinois Supreme Court Rule 606(b) (eff. Mar. 20, 2009), a notice of appeal must

be filed within 30 days after the entry of the final judgment or within 30 days of the order

disposing of a timely motion against the judgment. In a criminal case, a judgment is final when

the defendant is sentenced. People v. Jake, 2011 IL App (4th) 090779, ¶ 24, 960 N.E.2d 45. To

be timely, a motion directed against the judgment of sentence must be filed within 30 days of

entry of the judgment. See People v. Flowers, 208 Ill. 2d 291, 303, 802 N.E.2d 1174, 1181

(2003). Illinois Supreme Court Rule 606(b) (eff. Mar. 20, 2009) provides, in pertinent part, as

follows:

"When a timely posttrial or postsentencing motion directed against

the judgment has been filed by counsel or by defendant, if not

represented by counsel, any notice of appeal filed before the entry

of the order disposing of all pending postjudgment motions shall

have no effect and shall be stricken by the trial court. Upon

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 striking the notice of appeal, the trial court shall forward to the

appellate court within 5 days a copy of the order striking the notice

of appeal, showing by whom it was filed and the date on which it

was filed. This rule applies whether the timely postjudgment

motion was filed before or after the date on which the notice of

appeal was filed."

¶ 29 In the case sub judice, the trial court sentenced defendant to prison on November

1, 2013. Thus, defendant had 30 days to file his notice of appeal or a motion directed against the

sentence. At the time of sentencing, defendant was represented by his attorney, Jon Noll.

Counsel indicated defendant wished to appeal and noted by defendant's financial affidavit that he

was without any assets. The State did not contest that defendant was indigent. The court

directed the circuit clerk to file a notice of appeal on defendant's behalf and appointed the office

of the State Appellate Defender to represent him.

¶ 30 On November 6, 2013, defendant filed a pro se motion to reconsider his sentence.

On November 8, 2013, the trial court entered an order striking the notice of appeal because of the

pro se motion. The State argues the court should not have struck the notice of appeal because

defendant was represented by counsel at the time he filed his pro se motion. However, we find

no evidence defendant was represented by counsel at that time. Defense counsel had indicated at

sentencing that defendant was indigent, and the court appointed the appellate defender.

Defendant's pro se motion noted service on the court and the State's Attorney's office but not to

defense counsel. Thus, the State has failed to establish defendant was represented by counsel

when he filed his timely pro se motion. Accordingly, there is no support for the State's argument

that defendant's motion should have been immediately stricken by the court.

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¶ 31 While defense counsel appeared on February 3, 2014, and the trial court ordered

the pro se motion stricken because defendant was represented by counsel, we find defendant's

pro se motion tolled the time for filing the notice of appeal. Thus, as the notice of appeal was

timely filed on February 20, 2014, we have jurisdiction over this appeal.

¶ 32 B. Sufficiency of the Evidence

¶ 33 Defendant argues the State failed to prove he knew the item he transported from

Texas to Illinois contained a controlled substance. We disagree.

¶ 34 " 'When reviewing a challenge to the sufficiency of the evidence in a criminal

case, the relevant inquiry is whether, when 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.' " People v. Ngo, 388 Ill. App. 3d 1048, 1052, 904 N.E.2d 98, 102

(2008) (quoting People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331 (2006)).

The trier of fact has the responsibility to determine the credibility of witnesses and the weight

given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences

from the evidence. People v. Jackson, 232 Ill. 2d 246, 281, 903 N.E.2d 388, 406 (2009). "[A]

reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable,

improbable[,] or unsatisfactory as to create a reasonable doubt of the defendant's guilt." People

v. Rowell, 229 Ill. 2d 82, 98, 890 N.E.2d 487, 496-97 (2008).

¶ 35 In this case, the trial court entered a conviction against defendant on the offense

of controlled substance trafficking. Section 401.1(a) of the Illinois Controlled Substances Act

(Act) (720 ILCS 570/401.1(a) (West 2010)) provides as follows:

"Except for purposes as authorized by this Act, any person who

knowingly brings or causes to be brought into this State for the

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 purpose of manufacture or delivery or with the intent to

manufacture or deliver a controlled substance other than

methamphetamine or counterfeit substance in this or any other

state or country is guilty of controlled substance trafficking."

"To sustain a charge of controlled substance trafficking, the State must prove that the defendant,

with knowledge, brought into this state a controlled substance for the purpose of delivery or with

the intent to deliver." People v. Rosenberg, 356 Ill. App. 3d 219, 220, 825 N.E.2d 720, 722

(2005). The Act defines a "controlled substance" as "a drug, substance, or immediate precursor

in the Schedules of Article II of this Act." 720 ILCS 570/102(f) (West 2010). Defendant argues

the State failed to prove he knew the item he was transporting from Texas to Illinois was a

controlled substance.

¶ 36 The evidence in this case indicated McKnight began purchasing cocaine in Texas

in 2011. Initially, he would drive down to Texas and bring back the cocaine himself.

Eventually, he looked into finding others to take the cocaine to Illinois. On one occasion,

McKnight arrived in Texas and asked defendant for a ride from the airport. Defendant dropped

him off at Martinez's house and left. Castillo arrived at the house with 27 ounces of cocaine, and

Martinez wrapped the cocaine and duct-taped it. Once the transaction was complete, McKnight

called defendant for a ride. On the ride to the hotel, defendant expressed interest in earning some

money. McKnight handed him a package and told him he would pay him $1,500 to $2,000 plus

travel expenses to bring it to Decatur.

¶ 37 Defendant took the package and traveled to Decatur. Upon his arrival, McKnight

took the package and began cooking the powder cocaine into crack cocaine. Defendant was in

the house at the time, and the informant's video showed defendant in the kitchen doorway while

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McKnight was cooking the cocaine.

¶ 38 A few days later, McKnight returned to Texas and had Castillo pick him up at the

airport. They went to a house, and McKnight stated he was looking to buy a kilogram of

cocaine. He only had $20,000, so Castillo cut off a chunk from one of the cylinders. According

to McKnight, Castillo wrapped the cylinders in duct tape to disguise the smell. Once complete,

McKnight called defendant to give him a ride. McKnight handed the items to defendant and told

him he would pay him to bring them back to Decatur. McKnight testified the packages he gave

to defendant on these two occasions did not contain cash.

¶ 39 According to Castillo, defendant had entered the house with a birthday gift bag.

He claimed defendant plugged in a food-saver and removed condoms and gloves from his bag.

Castillo admitted handling the plastic bag that was put on the cocaine after the chunk was

removed. He stated he saw defendant and McKnight wrapping the cocaine and defendant

carrying the bag outside.

¶ 40 Police officers were able to determine that defendant was scheduled to arrive in

St. Louis via bus on November 19, 2011. During the layover in St. Louis, defendant left his blue

and white bag unattended for several minutes. When he returned to the bag, he reached inside

and maneuvered something around. Upon his apprehension in Springfield, defendant's bag

contained the manila envelope containing two cylindrical objects with duct tape on the outside.

While in custody, defendant sent a text message to McKnight that he had been "busted."

Fingerprint experts found Castillo's fingerprints on a plastic bag and defendant's prints on the

manila envelope.

¶ 41 The evidence in this case supports the jury's conclusion that defendant knowingly

brought cocaine into Illinois. "Knowledge may be, and ordinarily is, proven circumstantially."

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People v. Ortiz, 196 Ill. 2d 236, 260, 752 N.E.2d 410, 425 (2001). Here, the jury heard

testimony that the drug-buying McKnight wanted to pay large sums of money to hand deliver

packages to Illinois. Defendant, looking to make some money, took him up on the offer.

Defendant's claim that he did not know McKnight was in the drug business is not credible

considering McKnight proceeded to cook the cocaine with defendant in the house shortly after

defendant returned to Decatur after his first trip. Further, following his arrest, defendant sent the

text message that he had been "busted" to McKnight, and the jury could rationally conclude

defendant knew he had been "busted" for transporting the cocaine into Illinois.

¶ 42 On appeal, defendant focuses much of his argument on Castillo and McKnight

and their lack of credibility. The jury was well aware of the two drug dealers' criminal histories

and their hopes for consideration from the state or federal government in testifying against

defendant. In his brief, defendant points out inconsistencies in Castillo's and McKnight's

testimony regarding defendant's presence at the packing of the cocaine. However, their

testimony was such that the jury could find the package of cocaine defendant received in Dallas

was the same package the police retrieved from his bag in Springfield.

¶ 43 Defendant also points out Castillo's fingerprints were found on the packing

material and the absence of prints from defendant and McKnight on that material showed

Castillo packed the cocaine and lied about defendant taking part. However, the evidence

indicated gloves were in the bag of packaging supplies defendant brought to the house in Dallas.

Also, Ambrozich stated he expected to find a print suitable for comparison on "maybe one in ten

packages" like the duct-taped cylinders and he did not retain records of any partial prints

unsuitable for comparison that may have been on the duct tape. Even if Castillo did all of the

packaging of the cocaine, a jury could still conclude based upon the evidence that defendant

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knew what the duct-taped cylinders contained as he traveled to Illinois.

¶ 44 At trial, defendant's arguments would have the trier of fact believe he was nothing

more than an unwitting dupe or a "blind mule" who had no idea what he was transporting to

Illinois. However, defendant's own testimony showed his story was highly questionable.

Defendant claimed the second package contained $10,000 in cash, which he took to the bank to

be counted. He testified he put the money in a small manila envelope, which was smaller than

the manila envelope in exhibit No. 8. He claimed to have checked his bag in Tulsa and St. Louis

to see if the money was still inside, which he states explained the presence of his prints. On

cross-examination, defendant insisted that four pairs of pants, four shirts, and a pair of tennis

shoes had been taken from his bag. The following exchange between the prosecutor and

defendant also occurred:

"Q. So now you're telling me that somebody then must

have gotten in your bag, removed your clothes, took the $10,000

cash envelope, put the envelope with cocaine in it, and wrapped it

all back up in your fleece blanket, put your pillow back on top, put

it all back in your blue bag. That's what you're telling me?

A. I don’t know what that is and how it got there is what

I'm telling you.

Q. When would this have happened?

A. I'm not certain of that either.

Q. Well, your bag you put—you packed your bags?

A. I'm going to say St. Louis. It could have been between

Tulsa and St. Louis.

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 Q. Well, between Tulsa and St. Louis, your bag is under a

bus moving?

A. When you make stops and get off, I mean, you can

touch anyone's bags. I could go into anyone's bag if I wanted to.

***

Q. Can you think of any reason why someone you didn't

know would place cocaine in your luggage?

A. As time went on—and I've had time to sit here and

think all the time that I've been sitting here. I'm thinking—like

Saville told you, I had no knowledge of drugs. So what I'm

thinking is when he gave me the money, maybe he gave me the

wrong package not knowing that I was going to open it, or

something, so I don't know if Castillo—like I said, I've never met

him—possibly put it in. I have no idea. That's the only scenario I

can even come up with. Maybe they made a mistake, the people

who were putting these things on me illegally.

** *

Q. So your theory is that because you opened the envelope

that had cash in it, that there was somehow a mistake, that you

found out that there was cash, so somebody, maybe Robert

Castillo, in St. Louis, where he would have potentially had an

opportunity, took the money envelope and replaced it with the

cocaine envelope?

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 A. A possibility. I don't know. I mean, I don't know. I

don't have the facts of how it got there, so I—anything that I say is

going to be an allegation, speculation. It's going to be made up.

So I don't know."

Given that police had defendant's bag under surveillance in St. Louis and nobody entered it but

him, his claim that somehow someone replaced an envelope containing $10,000 in cash with an

envelope full of cocaine lacks all credibility. Considering the totality of the evidence, and as the

jury was responsible for determining the credibility of the witnesses, resolving conflicts in the

evidence, and drawing reasonable inferences therefrom, we find the jury could reasonably

conclude defendant knowingly brought cocaine into Illinois and committed the offense of

controlled substance trafficking beyond a reasonable doubt.

¶ 45 C. Confrontation Clause

¶ 46 Defendant argues his sixth amendment right to confrontation (U.S. Const. amend.

VI) was violated when Krefft was allowed to testify about the results of a chemical analysis

performed by another chemist who did not testify at trial. The State argues defendant has

forfeited review of the issue by failing to object at trial to the limitation of Krefft's involvement

in the testing procedures. Moreover, defendant did not raise the issue in his posttrial motion. By

failing to object at trial and raise the issue in a posttrial motion, the issue is forfeited on appeal.

See People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324 (2005) (a defendant must

object at trial and raise the issue in a posttrial motion to preserve the issue for review).

Defendant, however, asks this court to review the issue as a matter of plain error. Based on a

review of the record, we find plain-error review inappropriate.

¶ 47 The plain-error doctrine allows a court to disregard a defendant's forfeiture and

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consider unpreserved error when either:

"(1) the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant; or (2)

the error was so fundamental and of such magnitude that it affected

the fairness of the trial and challenged the integrity of the judicial

process, regardless of the closeness of the evidence." People v.

Wilmington, 2013 IL 112938, ¶ 31, 983 N.E.2d 1015.

¶ 48 Under both prongs of the plain-error analysis, the burden of persuasion remains

with the defendant. Wilmington, 2013 IL 112938, ¶ 43, 983 N.E.2d 1015. As the first step in the

analysis, we must determine whether any error occurred at all. People v. Taylor, 2011 IL

110067, ¶ 30, 956 N.E.2d 431. "If error did occur, we then consider whether either prong of the

plain-error doctrine has been satisfied." People v. Sykes, 2012 IL App (4th) 111110, ¶ 31, 972

N.E.2d 1272.

¶ 49 The confrontation clause in the sixth amendment to the United States

Constitution, which applies to the states through the fourteenth amendment, provides that "[i]n

all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the

witnesses against him." U.S. Const., amends. VI, XIV; People v. Barner, 2015 IL 116949, ¶ 40,

30 N.E.3d 271. "Confrontation errors are constitutional violations, but, as with other rights a

defendant holds, he or she may waive such a right." People v. Hood, 2014 IL App (1st) 113534,

¶ 18, 19 N.E.3d 1244. Moreover, "defense counsel may waive a defendant's right of

confrontation as long as the defendant does not object and the decision to stipulate is a matter of

trial tactics and strategy." People v. Campbell, 208 Ill. 2d 203, 217, 802 N.E.2d 1205, 1213

(2003).

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¶ 50 Our supreme court has noted that, "[a]s a matter of trial strategy, defense counsel

might choose to stipulate to evidence in an effort to minimize the adverse impact it will have at

trial." People v. Phillips, 217 Ill. 2d 270, 284, 840 N.E.2d 1194, 1203 (2005). In Phillips, 217

Ill. 2d at 276, 840 N.E.2d at 1198, defense counsel indicated he had no objection to lab reports

wherein certain quantities of cocaine and cannabis were documented. The court surmised, "to

contest the results of chemical testing, without a basis for doing so, would have simply

highlighted testimony regarding the nature of the drug and would have unduly magnified its

importance, when defendant was better served by focusing the jury's attention on the critical

issue of whether defendant knowingly possessed the controlled substance." Phillips, 217 Ill. 2d

at 285, 840 N.E.2d at 1203; see also People v. Woods, 214 Ill. 2d 455, 474, 828 N.E.2d 247, 259

(2005) (stating "it may be reasonably assumed that defendant's trial counsel decided to forgo the

opportunity to cross-examine the expert in order to focus on other theories of the defense");

People v. Scott, 355 Ill. App. 3d 741, 745, 824 N.E.2d 302, 307 (2005) (stating defense counsel's

decision not to contest the lab report by calling the chemist did not amount to a confrontation

violation because "[d]oing so could have confused the jurors and distracted them from

defendant's defense").

¶ 51 Here, as stated, defense counsel did not object to Krefft's testimony regarding

Beer's report. Counsel did not stipulate to the introduction of the evidence, either. However, the

decision not to object to Krefft's testimony may have been a matter of trial strategy. We find it

inappropriate to engage in plain-error review when the issue at hand may have been a strategic

decision by counsel not to focus the jury's attention on the weight and content of the substances

tested, i.e., more than 900 grams of cocaine, but instead on whether defendant knowingly

possessed the cocaine. Moreover, "if 'those trial tactics are to be the subject of scrutiny, then a

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record should be developed in which they can be scrutinized.' [Citation.]" In re Carmody, 274

Ill. App. 3d 46, 56, 653 N.E.2d 977, 984 (1995). Whether counsel was deficient in his strategy

and whether defendant was prejudiced as a result are matters best left for proceedings under the

Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)).

¶ 52 III. CONCLUSION

¶ 53 For the reasons stated, we affirm the trial court's judgment. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal.

¶ 54 Affirmed.

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