Illinois Official Reports 

Appellate Court

People v. Wilkerson, 2016 IL App (1st) 151913

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

TORRAY WILKERSON, Defendant-Appellant.

District & No. First District, Fifth Division

Docket No. 1-15-1913

Filed August 26, 2016

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 14-CR-09402; the 

Hon. Vincent M. Gaughan, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Mitchell D. Kreiter and Abbey Rosen, both of Kreiter & Rosen & 

Associates, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

Tasha-Marie Kelly, and Sara McGann, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE GORDON delivered the judgment of the court, with 

opinion.

Presiding Justice Reyes and Justice Burke concurred in the judgment 

and opinion.
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 OPINION 

¶ 1 Following a bench trial, defendant was convicted of being an armed habitual criminal, 

possession with the intent to deliver 900 grams or more of heroin, and unlawful use of a 

weapon by a felon, but found not guilty of armed violence. Defendant was sentenced on June 

24, 2015, to the minimum sentence of 15 years for possession of a controlled substance with 

intent to deliver and 7 years for being an armed habitual criminal with the unlawful use of a 

weapon count to merge into that count. The court ordered both sentences to run concurrently. 

¶ 2 On this appeal, defendant claims (1) that he was denied effective assistance of trial counsel 

where trial counsel (a) had a conflict of interest, (b) stipulated to the laboratory analysis, (c) 

failed to cross-examine a police officer about his vantage point in viewing defendant throw a 

gun out a window, and (d) failed to inquire about defendant’s employment history; (2) that the 

State failed to establish guilt beyond a reasonable doubt that defendant possessed 900.5 grams 

of drugs with the intent to deliver; (3) that the conviction must be reversed due to inconsistent 

findings between defendant and codefendant where the State presented more evidence of guilt 

against codefendant, who was found not guilty, than against defendant, who was found guilty; 

and (4) that defendant’s convictions for armed habitual criminal and unlawful use of a weapon 

by a felon should be reversed because the police officer’s testimony concerning his view of the 

gun disposal was incredible. For the following reasons, we affirm defendant’s convictions and 

sentence. 

¶ 3 BACKGROUND 

¶ 4 Defendant Torray Wilkerson was indicted on six felony counts including armed violence, 

armed habitual criminal, a Class X possession of a controlled substance with the intent to 

deliver, two counts of unlawful use of a weapon by a felon, and aggravated unlawful use of a 

weapon. The State dismissed one of the unlawful use of a weapon by a felon counts, as well as 

the aggravated unlawful use of a weapon count, before trial. 

¶ 5 The evidence at trial established that on May 1, 2014, a nine-man team of police officers 

executed a search warrant of a three-story building on West Ogden Avenue in Chicago, which 

consisted of five apartments and a storefront. The target of the search warrant was an 

individual named Todd Jones. The team did not find Todd Jones at the location but instead 

found defendant and codefendant as well as drugs that were recovered in the storefront. At 

trial, the State called police officers Kyle Mingari, Bill Murphy, and Mark Gutkowski. 

Defendant did not testify. The parties stipulated to the findings of forensic chemist Lenetta 

Watson. After trial, the trial court held a posttrial evidentiary hearing regarding defendant’s 

claim of ineffective assistance of trial counsel. 

¶ 6 I. Evidence at Trial 

¶ 7 A. Direct Examination of Officer Kyle Mingari 

¶ 8 On October 22, 2014, Officer Kyle Mingari testified that he is a police officer assigned to 

the bureau of organized crime, narcotics division. He has been a Chicago police officer for 

eight years; he had been assigned to his unit for 21⁄2 years; and he had executed search warrants 

in the past and had received training for firearms, both with the Chicago police department 

(CPD) and the Marine Corps. 
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¶ 9 Officer Mingari testified that on May 1, 2014, at 12:51 p.m., he, along with his supervisor 

and seven other police officers, executed a search warrant at an apartment building located on 

West Ogden Avenue in Chicago. The three-story building contained three apartments in the 

rear and an empty storefront with two apartments above it. The search warrant was confined to 

the first-floor rear apartment. 

¶ 10 Officer Mingari testified that, while standing in a hallway between the front door of the 

rear apartment and the rear door to the storefront, he heard the sounds of a television coming 

from the storefront and knocked on the door. A male voice responded asking who it was, and 

Officer Mingari announced that he was a Chicago police officer, at which time he heard a 

second male voice respond “hold on.” Officer Mingari then heard a distinct sound that he 

believed to be a gun slide being racked1and simultaneously heard “a front door opening to the 

front.” At that time Officer Mingari heard one of his team members, Officer McKenna, yell 

from his position in the gangway on the east side of the building that codefendant Senica 

Wilkerson was climbing over the gate and running out from the front. At that point Officer 

Mingari moved toward the front of the building and observed another team member, Officer 

Mark Gutkowski, pursuing codefendant Senica Wilkerson. Officer Mingari made an in-court 

identification of codefendant as the individual he observed Officer Gutkowski pursuing. 

¶ 11 Officer Mingari testified that, after he observed Officer Gutkowski pursuing codefendant, 

he exited the building out of the side stairwell and was standing in front of the building where 

he observed, through the scissor gates, that the front glass door was open. Officer Mingari 

could see through the open glass door into the storefront, and he observed defendant exiting 

out of the back door and up the stairwell to the second floor. Officer Mingari made an in-court 

identification of defendant, who he observed running up the stairs. He pursued defendant 

through the gangway and into the center hallway. At that time, he heard a door slam on the 

second floor, but he waited for assistance until team member, Officer Matthews,2

 arrived. 

¶ 12 Officer Mingari testified that, after Officer Matthews arrived, Officer Mingari knocked on 

the door to the second-floor rear apartment, and there was no response. Officer Mingari then 

heard his supervisor, Sergeant Steck, relaying over the radio that Officer Bill Murphy, who 

was outside, had observed an individual inside that apartment open a window and discard what 

he believed was a firearm onto an adjacent roof. During this time, Officer Mingari remained at 

the door until defendant opened it and allowed officers Mingari and Matthews to enter. The 

officers temporarily detained defendant and Officer Murphy positively identified defendant as 

the individual he had observed discard the firearm onto the roof. 

¶ 13 Officer Mingari testified that he went back down to the first floor and observed the empty 

storefront from his position at the threshold of the open rear door. Officer Mingari observed 

what he perceived to be several packages of drugs and two dogs in a cage. Officer Mingari 

could observe the storefront through the open door without opening it any further. After 

waiting for additional officers, he conducted a security sweep of that storefront. During the 

 

1A “slide being racked” refers to the procedure of pulling the slide of a handgun back in order to 

eject an empty cartridge case from the chamber. Tom McHale, How To Rack Your Handgun Slide Like 

A Boss, Beretta Blog (Apr. 3, 2014, 9:58 a.m.), http://blog.beretta.com/how-to-rack-your-handgunslide-like-a-boss. 

2Neither Officer Matthews’ nor Sergeant Steck’s first names are available in the record, as neither 

testified in open court. 
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search, Officer Mingari observed packages of heroin, 85 total, on the table and a large quantity 

of heroin in the bathroom on a mirror that was on a toilet. He also observed a large case 

containing the prescription drug Dormin, which Officer Mingari testified is a sleeping aid 

usually used as a cutting substance in the mixing of drugs, as well as several more packages of 

drugs. After conducting a more thorough search, he observed a clear white trash bag with 

ammunition in it, as well as a large clear knotted bag that contained heroin. Officer Mingari 

also recovered four digital scales, three mixers, and a sifter. 

¶ 14 Officer Mingari identified the following photographs that were admitted into evidence: (1) 

a photograph of the storefront entrance with scissor gates and an open glass door; (2) a 

photograph of the rear of the storefront, depicting the table with the drugs, on which Officer 

Mingari circled the drugs recovered from the table and the location of the digital scale and the 

sifter; (3) a photograph of the table where 85 bags of drugs were found; (4) a photograph of a 

blue plastic bin that contains mixers; (5) a photograph of the bundled packages of drugs on the 

floor toward the front of the storefront; (6) a photograph of the front portion of the storefront; 

(7) a photograph of a clear plastic bag of drugs; and (8) a photograph of the toilet covered by a 

mirror covered in heroin in the bathroom of the storefront. Officer Mingari testified that the 

eighth photograph entered into evidence depicted “the mirror with the pile of heroin on top of 

the mirror which is on the toilet” in the bathroom of the storefront.

¶ 15 Officer Mingari testified that he placed all the evidence into a blue plastic Rubbermaid bin 

and gave it to Officer Gutkowski. Officer Mingari then went back to the Homan Square police 

headquarters and spoke with defendant and codefendant, who are brothers. The codefendant 

told him that, at the time the search warrant was executed, only he and defendant were in the 

storefront and that defendant’s residence was the second-floor rear apartment, which was the 

same apartment where defendant answered the door for Officer Mingari and from which 

Officer Murphy observed defendant throw the gun onto the roof. The codefendant told him that 

he resided on West Congress Avenue in Chicago. 

¶ 16 B. Cross-Examination of Officer Kyle Mingari 

¶ 17 On cross-examination, Officer Mingari identified the search warrant, which he and his 

team executed at West Ogden Avenue on May 1, 2014. In the portion of the search warrant that 

indicated the premises to be searched, Officer Mingari testified that it indicated only the first 

floor. Officer Mingari testified that the individual that was the subject of the search warrant, 

Todd Jones, was a 6-foot-2-inch, 200-pound, 58-year-old African American and that 

codefendant did not resemble a 58-year-old man but that the officers still gave chase. Officer 

Mingari testified that codefendant had to climb over the scissor gates and that the glass door is 

visible in People’s exhibit No. 1, but it was covered in plastic bags and he could not see 

through the glass. Officer Mingari testified that, in the photograph, the door was being propped 

open to air out the storefront, but that when he observed the storefront through the door, the 

door was open without being propped open. Defense counsel asked if the door automatically 

closed if it was not propped open, and Officer Mingari testified that it did not but that it was 

propped open at the time of the taking of the photograph in order to ensure that it stayed open. 

¶ 18 C. Redirect 

¶ 19 Officer Mingari clarified on redirect that the door was open at the time the photograph was 

taken in order to air out the inside of the storefront due to heroin residue or powder. Officer 
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Mingari testified that when officers are exposed to chemicals or drugs they are required to do 

an exposure report. 

¶ 20 D. Officer Bill Murphy 

¶ 21 Officer Bill Murphy testified that he has been a Chicago police officer for 18 years and had 

been assigned to the narcotics unit for over eight years. Prior to working for the CPD, Officer 

Murphy testified that he worked for two years as a reserve officer for the City of Wheaton and 

spent four years as a military policeman in the Army. Officer Murphy testified that he 

conducted previous drug investigations and executed search warrants and is familiar with the 

appearance of firearms. On May 1, 2014, at 12:51 p.m., he was a part of the team that was 

executing a search warrant. After the team finished executing the search warrant, he stayed on 

the outside perimeter of the building conducting security. Officer Murphy heard one of his 

teammates, Officer McKenna, yell out from the front area of the building that someone was 

running, and Officer Gutkowski began running to the front while Officer Murphy stayed near 

his location. Officer Murphy then heard a door slam; the sound had come from his right and 

above him, toward the back of the building. Within 30 seconds, he heard a screen opening from 

above and observed an individual lean out of the window and toss what he believed to be a 

handgun on the roof of an adjacent building that was approximately six feet above the window 

he observed defendant leaning from. Officer Murphy made an in-court identification of 

defendant as the individual he observed throw the gun. After he made these observations, he 

yelled to his supervisor, who was in the rear of the building, that he observed someone throw a 

gun on the roof. His supervisor notified the other team members via radio, and Officer Murphy 

stayed in his location to maintain surveillance. 

¶ 22 Officer Murphy testified that, within five minutes, another team member, Officer Scharr, 

relieved him, and he went inside the residence to identify the person officers Mingari and 

Matthews had detained, whom he identified as defendant. Officer Murphy then returned to his 

previous location to stand with Officer Scharr and wait for the Chicago fire department to 

arrive to retrieve the firearm from the roof. Officer Murphy and a firefighter entered the basket 

of a cherry picker and were brought up to the roof, where Officer Murphy recovered the gun, 

unloaded it, and emptied the magazine. The gun was a Glock Model 19 9-millimeter pistol, 

which was loaded with 1 round in the gun and 12 in the magazine. Officer Murphy then 

identified People’s exhibit No. 10 as a photograph depicting an overhead view of the two 

buildings on West Ogden Avenue. Officer Murphy placed an “X” where he was standing when 

he observed defendant throw the gun onto the roof. Officer Murphy placed a “G” on the 

location where he recovered the handgun. Officer Murphy identified People’s exhibit No. 11 

as a photograph depicting an overhead view of where he had been standing. After he recovered 

the handgun, he gave it to Officer Gutkowski. 

¶ 23 On cross-examination Officer Murphy testified that, when he observed defendant lean out 

the window, Officer Murphy was approximately 15 to 20 feet from him and he could observe 

defendant’s body from the chest up. 

¶ 24 E. Officer Mark Gutkowski’s Testimony

¶ 25 Officer Mark Gutkowski testified that he is assigned to the narcotics section of the CPD 

and that he has been a police officer for 11 years and in the narcotics unit for six years. On May 

1, 2014, Officer Gutkowski was part of a team executing a search warrant on the rear 
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apartment of the building on West Ogden Avenue. After the team finished executing the 

warrant, he observed several members of the team approach the rear entrance door of the 

storefront, and he went outside behind the building. Once he relocated, he heard Officer 

McKenna yelling, “He’s coming out the front. He’s running.” Officer Gutkowski then ran to 

Ogden Avenue through the vacant lot on the west side of the building and observed a black 

male being pursued by Officer McKenna across Ogden Avenue. Officer Gutkowski pursued 

on foot, running across Ogden Avenue and eventually detaining the individual. Officer 

Gutkowski identified that individual as codefendant. Officer Gutkowski held codefendant on 

the ground until Officer Scharr arrived, at which point the officers placed codefendant in 

handcuffs and asked him if he had anything on his person. Codefendant had $3560 in United 

States currency in his right pants pocket. 

¶ 26 All evidence recovered was then placed into a blue Rubbermaid bin, which Officer 

Gutkowski carried out and placed inside an enforcement vehicle. Officer Gutkowski testified 

that Officer Murphy gave him the handgun that was recovered from the roof, which was also 

placed in the bin. The officers then returned to Homan Square, where they separated and 

bagged all the recovered evidence and performed an inventory. Officer Gutkowski testified 

that he heat-sealed the bags with the drugs, and they were logged on an inventory log sheet and 

dropped into a safe at the front desk, and that the handgun was sealed into a manila envelope 

and placed into a locker located at the front desk. 

¶ 27 II. Forensic Chemist Stipulation 

¶ 28 The parties then stipulated that, if Lenetta Watson, a forensic chemist at the Illinois State 

Police crime lab, was called to testify, she would testify that she received Inventory No. 

13162564, which was opened and found to contain a powdery substance that tested positive for 

the presence of heroin and weighed 774.3 grams; that she received Inventory No. 13162571, 

which she opened and found to contain a powdery substance that tested positive for the 

presence of heroin and weighed 89.3 grams; and that she received Inventory No. 13162566, 

which was opened and found to contain 85 items of a powdery substance and which tested 

positive for the presence of heroin and that weighed 36.9 grams in total. The parties stipulated 

that Watson would further testify that the total actual weight of all three inventories was 900.5 

grams of heroin. 

¶ 29 The parties further stipulated that Watson would testify that she is employed by the Illinois 

State Police crime lab and is qualified to testify as an expert in the area of forensic chemistry; 

that all the equipment used was tested, calibrated, and functioning properly when those items 

were tested; and that she performed tests commonly accepted in the area of forensic chemistry 

for ascertaining the presence of a controlled substance on all of the inventories. The stipulation 

was moved into evidence. Defense counsel then made a motion to quash the arrest and 

suppress the evidence, which the trial court denied. 

¶ 30 III. Verdict 

¶ 31 The trial court found codefendant not guilty of possession with intent to deliver—the only 

offense with which he was charged—stating that: 

“[C]ertainly he did flee from the apartment. But even an innocent person seeing 

that much narcotics would run. So his testimony was that he didn’t live there. That was 

admitted. And, again, mere presence—even negative—negative—mere presence right 
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there—I find that that’s a very high burden of proof beyond a reasonable doubt. There 

is not enough proof there to hold him responsible at that time, so I am finding him not 

guilty of Count 3, which is possession with intent, more than 900 grams of heroin. So 

there will be a not guilty there.” 

¶ 32 The trial court found defendant not guilty of count I, armed violence; guilty of count II, 

armed habitual criminal; and guilty of count IV, unlawful use of a weapon by a felon. 

¶ 33 The trial court then found defendant guilty of count III, possession of more than 900 grams 

of heroin with intent to deliver, stating that: 

“[Th]ere is packaging paraphernalia. The Dormin was there, which is a cut. There 

is scales. There is many other things. And the amount of—the weight also goes to 

possession with intent. I find that the State has proved each and every element of Count 

3 beyond a reasonable doubt of possession of heroin with intent to deliver more than 

900 grams.”

¶ 34 Defendant was found guilty of possession of 900.5 grams of heroin with intent to deliver. 

900 grams is the threshold weight that results in a 15-year minimum sentence. 720 ILCS 

570/401(a)(1)(D) (West 2012). Defendant was sentenced to 15 years with the Illinois 

Department of Corrections (IDOC) for possession of more than 900 grams of heroin with 

intent to deliver and sentenced to 7 years for being an armed habitual criminal. The trial court 

merged the armed habitual criminal count with the count of unlawful use of a weapon by a 

felon and ordered the possession and armed habitual criminal sentences to run concurrently. 

Defendant’s trial counsel then made an oral motion to reconsider defendant’s sentence, which 

the trial court denied. 

¶ 35 IV. Posttrial Motions and Evidentiary Hearing 

¶ 36 After his trial, defendant was appointed new posttrial counsel. On March 23, 2015, 

defendant’s posttrial counsel filed a posttrial motion for a new trial and for reconsideration of 

the findings of guilt. In his motion, defendant claimed (1) that mere presence in a place from 

which narcotics are recovered is not sufficient to establish possession beyond a reasonable 

doubt; (2) that the search warrant, which the officers were executing on May 1, 2014, was 

flawed; and (3) that he received ineffective assistance of trial counsel. 

¶ 37 On June 18, 2015, the parties held an evidentiary hearing on defendant’s ineffectiveness of 

counsel claim. Defendant’s trial counsel testified at the hearing that he had been an attorney 

since 1995 and a defense attorney since 2003. Counsel testified that he filed an appearance at a 

bond hearing for codefendant and met with codefendant before the hearing, that codefendant 

paid him on behalf of defendant, that defendant was well aware that codefendant was paying 

counsel for representing defendant, and that counsel and defendant had discussed it. Counsel 

testified that he visited defendant one time in Cook County jail and that the rest of their 

conversations occurred in the lockup. Defendant’s posttrial counsel asked why he did not 

utilize a defense arguing that codefendant was the person in possession of the drugs, and 

defendant’s trial counsel responded that he thought defendant and codefendant had very 

similar defenses and that he and defendant both agreed on a defense strategy to question 

Officer Mingari’s vantage point because the officer could not have observed what he said he 

had observed. 
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¶ 38 After listening to both parties’ arguments, the trial court found that, looking at the totality 

of the facts, there was no conflict of interest. The trial court also found that there was no 

evidence to support defendant’s claim of ineffective assistance of counsel. The trial court 

denied defendant’s posttrial motion for a new trial and his supplemental motion for a new trial, 

as well as his motion to reconsider the finding of guilt. Defendant filed a notice of appeal on 

July 14, 2015, and this appeal followed. 

¶ 39 ANALYSIS 

¶ 40 On this appeal, defendant claims (1) that he was denied effective assistance of trial counsel 

where trial counsel (a) had a conflict of interest, (b) stipulated to the laboratory analysis, (c) 

failed to cross-examine a police officer about his vantage point in viewing defendant throw a 

gun out a window, and (d) failed to inquire about defendant’s employment history; (2) that the 

State failed to establish guilt beyond a reasonable doubt that defendant possessed 900.5 grams 

of drugs with the intent to deliver; (3) that the conviction must be reversed due to inconsistent 

findings between defendant and codefendant where the State presented more evidence of guilt 

against codefendant, who was found not guilty, than against defendant, who was found guilty; 

and (4) that defendant’s convictions for armed habitual criminal and unlawful use of a weapon 

by a felon should be reversed because the police officer’s testimony concerning his view of the 

gun disposal was incredible. For the following reasons, we affirm defendant’s convictions for 

possession of a controlled substance with intent to deliver, being an armed habitual criminal, 

and unlawful use of a weapon by a felon. 

¶ 41 I. Ineffective Assistance of Counsel 

¶ 42 First, defendant claims that he received ineffective assistance of counsel where his attorney 

had a conflict of interest that adversely affected his performance. Defendant argues that his 

trial counsel was ineffective by stipulating to the laboratory analysis where the State would not 

have been able to prove the weight of the narcotics, by failing to cross-examine an officer 

about his vantage point, and by failing to ask defendant about his employment status, which 

could have been beneficial in sentencing. We find that there was no conflict of interest that 

existed that adversely affected the performance of defendant’s trial counsel.

¶ 43 A. Standard of Review 

¶ 44 The Illinois Supreme Court has held that, to determine whether a defendant was denied his 

or her right to effective assistance of counsel, an appellate court must apply the two-prong test 

set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 

135 (2007) (citing People v. Albanese, 104 Ill. 2d 504, 525 (1984) (adopting Strickland)). 

Under Strickland, a defendant must prove both (1) that counsel’s performance was deficient 

and (2) that the deficient performance prejudiced the defendant. Colon, 225 Ill. 2d at 135;

People v. Evans, 209 Ill. 2d 194, 219-20 (2004); Strickland, 466 U.S. at 687. 

¶ 45 Under the first prong of the Strickland test, the defendant must prove that his counsel’s 

performance fell below an objective standard of reasonableness “under prevailing professional 

norms.” Colon, 225 Ill. 2d at 135. Under the second prong, the defendant must show that, “but 

for” counsel’s deficient performance, there is a reasonable probability that the result of the 

proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] 

reasonable probability that the result would have been different is a probability sufficient to 
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undermine confidence in the outcome—or put another way, that counsel’s deficient 

performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 

2d at 220; Colon, 225 Ill. 2d at 135. 

¶ 46 To prevail, the defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill. 2d 

at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective assistance claim can be disposed of 

because the defendant suffered no prejudice, we need not determine whether counsel’s 

performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). A reviewing court 

will not second-guess a counsel’s trial strategy simply because defendant was convicted. 

People v. Johnson, 385 Ill. App. 3d 585, 602 (2008). Moreover, the court gives a great amount 

of deference to counsel’s judgment and indulges a strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. 

¶ 47 Further, Illinois recognizes two categories of conflict of interest: per se and actual conflict. 

People v. Austin M., 2012 IL 111194, ¶ 80. Per se conflict of interest arises when certain facts 

about a defense attorney’s status create a disabling conflict, which is grounds for automatic 

reversal regardless of whether the conflict actually impacted the attorney’s performance. 

People v. Taylor, 237 Ill. 2d 356, 374 (2010). Actual conflicts of interest generally involve 

joint or multiple representation of codefendants. Taylor, 237 Ill. 2d at 375. To prove an actual 

conflict, the accused need not prove prejudice in that the conflict contributed to the conviction, 

but it is necessary to establish that an actual conflict of interest adversely affected the lawyer’s 

performance. Taylor, 237 Ill. 2d at 375. “ ‘What this means is that the defendant must point to 

some specific defect in his counsel’s strategy tactics, or decision making attributable to the 

conflict.’ ” Taylor, 237 Ill. 2d at 376 (quoting People v. Spreitzer, 123 Ill. 2d 1, 18 (1988)). 

¶ 48 B. Actual Conflict of Interest 

¶ 49 In the case at bar, defendant’s trial counsel previously represented codefendant, who was 

found not guilty, at a bond hearing. Any potential conflict of interest arising from joint 

representation was then cured when trial counsel stopped representing codefendant after the 

bond hearing and only represented defendant from then on. However, defendant was aware 

that codefendant was paying for defendant’s representation, but it did not have an adverse 

impact on trial counsel’s performance. 

¶ 50 It was not unreasonable for defendant’s trial counsel to argue that defendant was merely 

present instead of asserting that codefendant was responsible for the narcotics because it was 

sound trial strategy to rely on discrediting the police officer’s testimony about his vantage 

point. In the evidentiary hearing about defendant’s ineffective assistance of counsel claim, trial 

counsel testified he and defendant discussed this strategy and both agreed to pursue this 

defense. Therefore, there is not a conflict of interest that affected trial counsel’s performance. 

¶ 51 C. Stipulation to Findings of the Forensic Chemist 

¶ 52 Second, defendant argues that it was improper for his trial counsel to stipulate to the 

findings of the forensic chemist, particularly the weight of the narcotics recovered. Defendant 

argues that, based on People’s exhibit No. 8, trial counsel knew or should have known that the 

powder from the bathroom was commingled prior to testing. Therefore, when defendant’s trial 

counsel stipulated to the weight of the narcotics, he relieved the State from proving that the 

defendant possessed 900 grams or more of a substance containing heroin, which the State 

would not have been able to prove. Further, defendant argues that the forensic chemist should 
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have been cross-examined about the calibration of the scales because the net weight of the 

narcotics was only 0.5 gram over the required amount. 

¶ 53 “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, 428-29 (1996). When the seized samples 

are homogenous, random testing is permissible and it can be inferred beyond a reasonable 

doubt that the untested samples contain the same substance as those that are tested. Jones, 174 

Ill. 2d at 429. However, where the seized samples are not sufficiently homogenous, a portion 

from each distinct sample must be tested so that the contents can be conclusively determined. 

Jones, 174 Ill. 2d at 429. This is especially true given that Dormin, a cutting agent that looks 

similar to heroin, was recovered in the storefront. 

¶ 54 Defendant argues that the photograph identified as People’s exhibit No. 8 depicts three 

distinct piles: one on the left, one on the right, and one inside the sifter. Defendant argues that 

those piles were commingled prior to testing when Officer Mingari collected them in a 

Rubbermaid bin and the substance was inventoried under one number. However, this court 

examined People’s exhibit No. 8, and the photograph does not depict three distinct piles on the 

mirror, but one mass of powder. There is a pile of powder in the sifter resting on top of the 

mass, but a sifter contains holes and would not prevent the substances from commingling. 

Further, neither the assistant State’s Attorney nor defense counsel asked Officer Mingari 

whether he commingled any powder. Officer Mingari testified only that People’s exhibit No. 8 

was a photograph of “the mirror with the pile of heroin on top of the mirror which is on the 

toilet.” He later testified that he placed all the evidence in a Rubbermaid bin and made no 

statement about commingling substances. Thus, the appellate record does not support 

defendant’s claim that People’s exhibit No. 8 depicted three distinct piles of powder that the 

officer must have commingled. 

¶ 55 Defendant further argues that by stipulating to the lab, trial counsel was prevented from 

questioning the chemist on the deviation of the scales. While the weight of the narcotics was 

only 0.5 gram over the 900-gram minimum amount, the chemist stipulated that the scales were 

calibrated prior to testing. “Illinois courts favor the stipulated testimony of forensic experts on 

the presence of controlled substances because stipulations can expedite the disposition of 

cases, simplify the issues and reduce expenses.” People v. Stewart, 365 Ill. App. 3d 744, 749 

(2006) (citing People v. Woods, 214 Ill. 2d 455, 468 (2005)). Therefore, because there was not 

prior commingling of distinct substances, defendant was not prejudiced by trial counsel’s 

stipulation. 

¶ 56 D. Failure to Cross-Examine Officer Murphy 

¶ 57 Defendant also argues that trial counsel had the opportunity to impeach Officer Murphy’s 

testimony about his ability to view defendant throw a gun from the second-floor window. 

Defendant asserts that, from his stated vantage point, Officer Murphy could not have observed 

the window because the view is obstructed by a brick wall. However, defendant’s trial counsel 

did cross-examine Officer Murphy, who provided a description of how much of defendant’s 

body he observed and how far defendant had to lean out the window. The trial court found 

Officer Murphy’s testimony credible, and a handgun was found on the roof, corroborating 

Officer Murphy’s testimony. Trial counsel adequately questioned Officer Murphy and did not 
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act unreasonably or prejudice defendant. 

¶ 58 E. Failure to Inquire About Defendant’s Employment Status

¶ 59 Defendant further claims that his trial counsel was ineffective because he did not inquire 

about defendant’s employment status. Defendant received the minimum sentence for 

possession of narcotics with intent to deliver, and so whatever character reference defendant’s 

alleged employment could have offered would not have mitigated defendant’s sentence, and 

thus the exclusion of such reference did not prejudice him. Therefore, it is unnecessary to 

determine whether failing to introduce defendant’s alleged employment status as a mitigating 

factor fell below the objective standard of reasonableness. 

¶ 60 II. Sufficiency of the Evidence 

¶ 61 Next, defendant challenges the sufficiency of the evidence for possession of 900 grams or 

more of heroin with intent to deliver. 

¶ 62 Defendant argues that the evidence is not sufficient because constructive possession was 

not established where the State did not establish that defendant possessed knowledge of the 

narcotics or that the narcotics were in his immediate and exclusive control. People v. Ray, 232 

Ill. App. 3d 459, 462 (1992). 

¶ 63 A. Standard of Review 

¶ 64 When determining the sufficiency of the evidence, the standard of review is whether, after 

viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt. People v. Woods, 

214 Ill. 2d 455, 470 (2005); Ray, 232 Ill. App. 3d at 461. If the court answers this inquiry in the 

negative, the defendant’s conviction is reversed. Woods, 214 Ill. 2d at 470. However, a 

reviewing court does not retry the defendant or substitute its judgment for that of the trier of 

fact with regard to the credibility of witnesses or the weight to be given to each witness’s 

testimony. People v. Jackson, 232 Ill. 2d 246, 281 (2009); People v. Ross, 229 Ill. 2d 255, 272 

(2008). 

¶ 65 When reviewing a conviction for possession of a controlled substance, the court must 

determine whether defendant had knowledge and possession of the narcotics. 720 ILCS 

570/402 (West 2012) (“it is unlawful for any person knowingly to possess a controlled *** 

substance”). A defendant has constructive possession when he has the “ ‘intent and capability 

to maintain control and dominion’ ” over the narcotics, but does not have immediate personal 

control of them. People v. Carodine, 374 Ill. App. 3d 16, 25 (2007) (quoting People v.

Frieberg, 147 Ill. 2d 326, 361 (1992)). “Knowledge and possession are factual issues, and the 

trier of fact’s findings on these questions will not be disturbed unless the evidence is so 

unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt 

of the defendant’s guilt.” People v. Brown, 277 Ill. App. 3d 989, 998 (1996). 

¶ 66 “Intent of delivery is rarely subject to direct proof. Consequently, such intent must usually 

be proven circumstantially.” People v. Little, 322 Ill. App. 3d 607, 614 (2001). Factors for 

examining the sufficiency of circumstantial evidence include “(1) whether the quantity of 

cocaine possessed is too large to be reasonably viewed as being for personal consumption, (2) 

the degree of the cocaine’s purity, (3) the possession of any weapons, (4) possession and 
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amount of cash, (5) possession of police scanners, beepers or cellular telephones, (6) 

possession of drug paraphernalia commonly associated with narcotic transactions, and (7) the 

manner in which the cocaine is packaged.” Little, 322 Ill. App. 3d at 615 (citing People v. 

Robinson, 167 Ill. 2d 397, 408 (1995), People v. Rivera, 293 Ill. App. 3d 574, 576 (1997), and 

People v. Beverly, 278 Ill. App. 3d 794, 797 (1996)). 

¶ 67 B. Evidence Presented Against Defendant 

¶ 68 The State argues that the facts supporting guilt include the fact that defendant fled from the 

police; no one else was observed in the area besides defendant and codefendant, who also fled 

the scene before he was apprehended with over $3000 in cash; defendant attempted to hide a 

gun from police by throwing it from a window in his residence to the neighboring roof; and the 

storefront from which narcotics were recovered is located just below defendant’s self-admitted 

residence. 

¶ 69 Defendant argues that People’s exhibit No. 6 discredits Officer Mingari’s testimony 

because it depicts an automatic door that would have closed before Officer Mingari would 

have been able to see through it. However, Officer Mingari was cross-examined about that 

door and testified that it did not automatically close. The trier of fact found that testimony to be 

credible, and we will not substitute our judgment for that of the trial court. 

¶ 70 The storefront was vacant, and defendant had no reason to be present there unless he was in 

possession of the drugs; both defendant and codefendant were heard inside the storefront, both 

fled the scene, and both were the only individuals in the area. This evidence is enough to 

establish constructive possession. The recovery of Dormin, scales, and a quantity of drugs 

much too large for personal use is sufficient to establish the intent to deliver. This evidence, 

when viewed in the light most favorable to the prosecution, is sufficient to establish guilt of 

possession with intent to deliver beyond a reasonable doubt. 

¶ 71 III. Inconsistent Verdicts 

¶ 72 Defendant argues that his conviction for possession of heroin with intent to deliver must be 

reversed due to inconsistent findings between defendant and codefendant, where the State 

presented more evidence against codefendant, who was found not guilty, than against 

defendant, who was found guilty. 

¶ 73 A. Standard of Review 

¶ 74 Illinois courts have held that “where there is no plausible construction of the evidence 

which would furnish a reasonable basis for the finding of guilty as to one defendant and not 

guilty as to the other, the conviction must be reversed.” People v. Gonzales, 67 Ill. App. 3d 

215, 222 (1978). However, the acquittal of one codefendant does not raise a reasonable doubt 

as to the guilt of the other codefendant unless the evidence against both defendants is “identical 

in all respects.” People v. English, 334 Ill. App. 3d 156, 167 (2002). 

¶ 75 B. Evidence Presented 

¶ 76 The evidence presented against defendant and codefendant was not identical. Both 

codefendants were heard inside the storefront; both were the only individuals found at the 

location, and both were observed fleeing the scene. 
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¶ 77 However, defendant was in possession of a handgun, and Officer Mingari testified that he 

heard the slide being racked from inside the storefront. Defendant then ran up to his apartment 

to dispose of the handgun. Defendant also admitted that he resided in the apartment upstairs 

from the storefront. Living above the storefront positioned defendant to prevent theft of the 

drugs or to facilitate sales, further supporting the inference that he had control over the 

storefront. 

¶ 78 Since the evidence presented against codefendant and defendant was not identical, and 

defendant’s residence gave him a greater opportunity to exercise control over the drugs, we do 

not find that the trial court rendered inconsistent verdicts. 

¶ 79 IV. Convictions for Counts II and IV 

¶ 80 Finally, defendant argues that this court should reverse his convictions of being an armed 

habitual criminal and of unlawful use of a weapon by a felon. Defendant argues that, from his 

stated vantage point, Officer Murphy could not have observed the window from which he 

claimed to have observed defendant throw the gun. When viewing the evidence in the light 

most favorable to the prosecution, we find that a rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Ray, 232 Ill. App. 3d at 461. 

Therefore, we affirm defendant’s convictions for armed habitual criminal and unlawful use of 

a weapon by a felon. 

¶ 81 Defendant argues that the photograph identified as People’s exhibit No. 10 indicates that 

Officer Murphy’s vantage point, where he marked an “X” on the exhibit, made it impossible to 

observe the window. However, it is not clear from the exhibits that Officer Murphy could not 

have observed the window, and the overhead view of the photograph in People’s exhibit No. 

10 does not provide a reasonable basis for that inference. Identification by a single witness is 

sufficient to support a conviction if the defendant is viewed under circumstances permitting a 

positive identification. People v. Gabriel, 398 Ill. App. 3d 332, 341 (2010). Officer Murphy 

heard the window open, looked up to observe the defendant throw the gun, and then 

immediately went to the apartment to identify him after the other officers had detained him. In 

addition, the gun, which Officer Murphy described, was recovered on the roof. Further, Officer 

Murphy was vigorously questioned at trial, and the trial court found his testimony to be 

credible. We will not substitute the judgment of the trier of fact with our own with regard to the 

credibility of witnesses or the weight to be given to each witness’s testimony. Jackson, 232 Ill. 

2d at 281. For the foregoing reasons, we affirm defendant’s convictions for armed habitual 

felon and unlawful use of a weapon by a felon. 

¶ 82 CONCLUSION 

¶ 83 For the foregoing reasons, we affirm defendant’s convictions of unlawful possession of 

900 grams or more of narcotics with intent to deliver, being an armed habitual criminal, and 

unlawful use of a weapon by a felon. First, defendant was not denied effective assistance of 

counsel. Second, when viewed in the light most favorable to the prosecution, the State 

established guilt of possession with intent to deliver beyond a reasonable doubt. Third, the trial 

court did not render inconsistent verdicts because defendant and codefendant were not tried on 

identical facts. Finally, we affirm defendant’s convictions for armed habitual criminal and 

unlawful use of a weapon by a felon, because the trial court found the officer’s eyewitness 

testimony credible, and we will not substitute our judgment for that of the trier of fact with 
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regard to the credibility of the witness. 

¶ 84 Affirmed.