good morning are both parties ready to proceed conviction sentence of twelve years in prison and the defendant as the conviction be reversed outright on the grounds of insufficient evidence briefly the officer in this case  traffic stop the defended led a foot chase ensued the officer apprehended the defendant and the officer recovered a switch blade knife from the waist and on on the defendant person and then also busy recovered of a bag other white powdery substance which was later turned out to be cocaine and that was found about six to twelve inches away from his right leg the defendant on that time defendant argues that the another armed violence defendant may can be convicted while he's armed with a dangerous weapon and he commits anything really defined by illinois law with some exceptions t question here is was the defendant guilty of possession of cocaine because if he's not the armed violence conviction must fall the defense argues that the evidence was insufficient because of several factors there's no failure prince fine on the back there was no cocaine residue on the defendant no witnesses including the arresting officer kelly and so a defendant handler dispose of the bag there are no where the contraband was located eighteen inches away from the defendant and drives currency in a handgun were found in its people versus ray the state says there's circumstantial evidence to convict in this case i would cite the people versus cunningham case a two thousand and four illinois supreme court decision and the cunningham courts distinguish between inference even if the court will not it adopted it the court must accept it however if it's an unreadable inference the court must reject it so one of the factors that the state relies on  crisis of guilt on his part but it also came out any record that defendant did not possess a driver's license so the reason why he ran is because of a consciousness of guilt that he didn't have a driver's license while driving so the question here is is there any evidence the record to suggest that one inference is more likely than the other so if in this case there's really no evidence in the record to suggest that the then it was probable or more likely that the defendant had a consciousness of guilt on the  beyond a reasonable doubt and there's no no evidence that that inference is more probable or more likely than the inference that he ran because he didn't have a license so him the other point the state makes on the defendant's movements the time when he was placed under arrest but the arresting officer callahan stated that he didn't see the defendant reaching for a bag of cocaine he didn't see and touch the back and it had trouble focusing in looking at his hands while he was on the ground he was more focus on his hand at the defendant's  waistband because that's where the weapon was used more concerned the officers more concerned about his personal safety than anything else so therefore he really didn't have a view towards whether or not any actually did say he was reaching reaching for the bag of cocaine we can't make that inference based on the officers testimony so that's an unreadable inference that he is reaching for the cocaine and therefore undercutting him must be rejected so ensure the state relies on circumstantial evidence they rely on the flight they rely on the reaching that the defendant supposedly did those are on reasonable inferences there's also a lack of that  already mentioned because that are really discussed so the evidence is insufficient to convict under the cunningham standard now also like to make mention of a case that i cited people versus jackson nine hundred and sixty one case and the state says a debt case came before the united states supreme court jackson versus versus virginia adopted in collins as to the standard of review for challenges to the sufficiency of evidence so what they're saying is that case is no longer valid however to the best of my knowledge i looked at this and what that held as if there's only a probability that somebody possessed a cane and that's insufficient to support a convention so i would rely on that case but i don't rely on that case alone i do rely on conahan and i do rely on the post jackson vs virginia cases as well and i do rely on the collins standard i rely on the columns to enter and and the the other college standard cases reasons or they were merged or they were merged so based on the merger that the trial court did in this case there's only two convictions left intact the armed violence in the on the lawful was section of a weapon by someone young  possession of a weapon by stalin carry the four year sentence the twelve years as the sentence on the arms of violence conviction and so the possession of cocaine were merged into the the violence is that what you're saying yeah based on the record there's always two convictions my understanding that are left in this case violence the onslaught of possession a weapon i saw there no other convictions ok so looking at the evidence that we do have including your client's representation that he did not know that a switchblade was an illegal weapon to be carried what then is he running from is he running from a failure to have a license a class a misdemeanor d is it more reasonable to believe he is running from a possible cocaine charge which based upon his prior history he would probably know is a felony well your honor i believe that the evidence in the record is insufficient to answer that question and that's why i argued there's reasonable doubt sufficient for a reversal here because as your honor stated the question is whether or likely that he was running because of the cocaine rather than the rather than not having a license i don't think there's any evidence to show that he's probably running from a cocaine because i think we have flight so i don't think there's i don't see any inference that he ran because the cocaine is reasonable because i don't think the state has proven it's probable or likely that he ran because of the cocaine because he didn't present there is no argument from state a lower court level that prior record is determined to have on it i just don't think there's any evidence in the record it's kind of like putting the cart before of course i think there's no evidence in the record switchblade as a felon either while on parole or mandatory supervised release correct yeah he did have a prior record yes that's true yes so that is it's before the court and it's before us i mean be that as it may go on to another area so the state presented no other evidence before his hands were put up or before he went to the ground because of the tas there i thought there was testimony that with his left hand he was reaching for his belt or in the area of his belt and the officer is aware that some weapons are kept in a belt and with his right hand he was reaching down to the ground near his right foot and the cocaine is found about six dollars to twelve dollars inches away from his right foot why shouldn't that evidence be considered as well you never mentioned that let's put it that way so why shouldn't we consider that evidence as some evidence that he did possess the cocaine and he did have exclusive control over that cocaine before he tossed it six to twelve inches away well there's no direct evidence that he tossed the elements six to twelve inches because the officer behind him obviously he did see a hand well his left hand going what he believed to be a belt and he did see movement of his right hand down near his foot so how can you say he didn't see both hands gain that that's a reasonable inference because areas on the ground a very stressful situation for everybody everybody's moving about and just because he sees a hand moving a little bit does not  do just following up on the questions just as hutchinson asked why would not be a reasonable inference if we know that the officer did testify that the defendant had been seen reaching towards the leg that the cocaine was found next to and within six inches six to twelve inches i mean why wouldn't that be a reasonable inference that the defendant had taken it from his stock area where many times it's known that drugs are kept and discarded it in the course of  the you know being taken to the ground or just before it was taken to the ground by the police i mean that certainly we know circumstantial evidence but i'm not sure why this isn't a reasonable inference well because i mean i'm sorry but i was just going to reiterate i mean no it's not direct evidence but it's circumstantial evidence so when i'm failing to see is why it isn't a reasonable inference defendant did exercise control even actual control i mean you know a defendant doesn't have to be touching contraband to exercise control but i mean we're talking about both we can talk about both actual and constructive possession but but focusing again on the question i started with why is this not a reasonable inference well i agree i have a few points one is i think the state that's all they have as a movement of the hand by the by the defendant on the ground that's all they have that's not enough counsel what i'm hearing is and seeing we also know that there was no one else they were so so the you know there wasn't anyone else around so they're probably it is reasonable to infer that no one else threw it there but i think what i'm hearing honestly is you are conflating reasonableness with direct or circumstantial evidence so because there was no direct evidence doesn't mean there can't be a reasonable inference that can be drawn from circumstantial evidence and so i think that was the point of my question but let me go on to another  thank you just isn't enough live and i have just a couple of questions they covered most of them but and you brought it up as well and your response to one of the questions you know the sufficient the standard for the sufficiency of the evidence and that has to be not the standard but that's the argument made and the standard is we view this in the light most favorable to the state how did and can we find in this case here that the officers testimony did he observed the defendant reached for his waistband man incl area before the bag was found that this is so improbable as to create a reasonable doubt it please the court and counsel good morning in victoria justice for the people of state of illinois here where looking at the sufficiency of the evidence which the scorch knows they review in the light most favorable to the people to determine if a rational trier of fact could find all of the elements beyond a reasonable doubt here we do not have just mere possibilities and probabilities t an which was this court's decision as being most similarly on point to our current circumstances in eagan we had a defendant who was in a parking lot walk away when called over by the police behind a truck pause there for three to eight seconds flexed his ankles transferred the weight to the balls of his feet and walked away from the truck the cocaine was then found on the rear of the trunk this court found sufficient evidence of possession where he did not respond the defendant did not respond to the officers inquiries where he walked to the precise area where the drugs were found and stood there and had capability to control the drugs within arm's reach the officer did not see the defendant personally touching the bag but the board found that the circumstantial evidence supported a reasonable inference that he had the drugs on his person at the time the police made contact then attempted to conceal them on the bumper and that is essentially what the trial court found here the court found that right leg and the bag on the where it specifically found six inches but the evidence showed it was six dollars to twelve dollars inches so within a foot from his right foot that he reached for the blade and drugs simultaneously and combined with his actions of flight the grabbing toward the ankle and the finding the drugs within inches of his foot the evidence made a reasonable inference that he possessed the cocaine the trier of fact consider the same arguments below and we should defer to its rational conclusions the flight was reasonable for the judge to consider as it was part of the totality of the i wouldn't to show consciousness of guilt and there is nothing that the defendant has cited to that you're limiting conscious of guilt to only one offense when he had your potential multiple offenses but the most serious of those offenses was going to be for the possession of the drugs his right his left hand reach for the waistband his right hand reach for the ankle officer callahan was only three feet away from the defendant so he could have a view of the entire body even if he is watching the left hand more closely going for the right hand his professional view would have had plenty of time to also see the movement toward  the right ankle and he did see it we have him testifying he did see it so we have the specific suspicious furtive movements toward the leg by which the drugs were found he stopped in the precise area they were found no one else was in the area during the pursuit and the drugs were within his arms reach while he was huddled on the ground reaching for his foot so this established the capability of control and the reasonable and friends that he had the drugs on him when he st made contact with police and was trying to conceal their dispose of it before finally submitting to police so based on the totality of the circumstances and all of the reasonable inference a stablish constructive possession does that we talked about the close proximity so what what evidence do you believe was compelling beyond the proximity such that we should furtive movements the movement toward where the contraband was found is the most compelling and the courts have consistently found that this movement is what takes it beyond a case like tate's or i believe the other one he cited was ray where you're just in the presence of the drugs and sitting there so we have both in nally which was where he was leading toward the bar leaving the gun we never the officer never saw him touching the gun and in that case we did have a sulking noise but unfortunately a bag of cocaine wasn't probably going to make the same kind of noise so it was looking at this series of suspicious furtive movements that took it away from presence so we're combining all of that the same thing and egon which was this court case and just the this capability of it being so close within arm's reach that he had the capability of controlling it again was making the movements here likely to try to conceal it or dispose of it before the court or before the officer found it on him ok thank you very much i don't have any further question bag can you didn't even in the light most favorable to the state tell us how we have actual possession or constructive possession in this case and not just the probability that he possess minion or control in trying to get rid of it but even without the touching there there is no there's no court that has found that such touching is is necessary  we're looking for the intention capability to maintain control and dominion over these drugs and basically even in this situation where we have a public location  we needed to show that he did not abandon the item and no others obtain possession so  is attempt and showing his attempts to maintain control over it by concealing it but we do have the movement there we have it in such close proximity that he could he was capable of maintaining control over it so that is what we have here and those are reasonable inferences which both this court and other courts have found sufficient was there any testimony to other people were in the area or any other reasonable explanation as to how they happened to be on the sidewalk near the defendant there was not your honor officer  the pursuit he did not see any other people in the area obviously when he was driving a vehicle and following the defendant he was not in the area before the defendant reached the area  there is so there was nobody else scene immediately therefore obviously he's not there is no direct evidence as to how long it was there but we are allowed to make a reasonable inferences that with nobody else being seen either area the fact that he stopped at the exact location that the drugs were found and that he was making the movements toward them and they were that decision in the case i the case stands for the proposition that this was reversed because the probability of possessing cocaine is not sufficient to establish beyond a reasonable doubt  the right ankle well that's a very thin reach to establish proof beyond a reasonable doubt because we all know that the officer was not looking at that reliable evidence to rest a verdict of guilty beyond a reasonable doubt what the officer said so you have difficulty saying and personal defendant to put his hands up and he has to room revert to in his mind using the taser because he sees the left hand going toward a belt and he believes there is a reasonable inference there is a weapon there based upon his prior experience how can we not say that based upon that same prior experience the right hand and he's just saying something out of the corner of his eye and really all that he sees out of his corner of his eye is so moving but that with the officers doing is he's making really good friends because he sees a movement so he's so i rely on that case and then i rely on the holes jackson versus virginia cases where i don't you know the the evidence is insufficient it's lacking so the basic principle is insufficient we have no physical evidence no witnesses other than once in a witness we had a witness that wasn't really looking directly at it we have a witness that's using peripheral vision we have a witness and you know make a reasonable inference of reaching oh all i saw was a hand moving on the corner of his eye so each battens faces to be judged on its own facts so i really don't think there's really a would be a case there whatever address agree that a court is entitled to use circumstantial evidence to go beyond the bill and find the defendant guilty beyond a reasonable doubt yes i would agree that the court can rely on circumstantial evidence  that a court here didn't find that by using circumstantial evidence and convicting the defendant here there's no indication that they're that the court didn't make all and no physical evidence nothing at all no statements nothing an to say a movement of the hand for the officer to the officer himself is making that inferential jump that there was reaching going is on the ground in the hands are moving a little bit because the officer ordered him you know to get his hands in a safe position to be able to arrest and it's a your argument this morning the case will be taken under advisement and a disposition will be rendered in due course is declared you may close the case and terminate the proceedings thank you