NO. 4-99-0632

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

JACQUELINE K. SMITH,				)	No. 98CF1493

		Defendant-Appellant.		)

								)	Honorable

								)	Thomas J. Difanis,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		On January 6, 1999, defendant, Jacqueline K. Smith,

pleaded guilty to obstruction of justice (720 ILCS 5/31-4(a)

(West 1998)) and the trial court sentenced her to 12 months'

conditional discharge, with 180 days in jail.  One of the condi

tions of her conditional discharge was that she not violate the

criminal statutes of any jurisdiction.  In February 1999, the

State filed a petition to revoke defendant's conditional dis

charge, alleging that she violated the terms of her conditional

discharge by again committing the offense of obstructing justice. 

720 ILCS 5/31-4(a) (West 1998).  The trial court found the State

proved the grounds alleged, revoked her conditional discharge,

and resentenced defendant to an extended six-year prison term for

the underlying obstruction -of -justice conviction.  Defendant

appeals.  We affirm.

		Defendant was a passenger in a vehicle that police

stopped in the early morning hours in a high drug-crime area in

Champaign.  Police officer Brian Gallagher asked defendant to step out of the vehicle.  Defendant stepped out and Gallagher

asked her if she had anything in her purse.  She responded that

she did not and asked Gallagher if he wanted to search her purse. 

Gallagher searched her purse and found no contraband.  Gallagher

then asked defendant to open her mouth.  He testified that he did

so because, in his experience, narcotics buyers will often hide

drugs in their mouths so that they may be easily destroyed to

prevent their discovery by police.  Gallagher testified that in

response to his request defendant "closed her mouth very tightly

and made two exaggerated swallowing motions."  Gallagher was

approximately six inches from her and could "see that her throat

was making a swallowing[-]type movement."  Gallagher again asked

defendant to open her mouth.  She did so and he looked inside her

mouth with a flashlight, observing a white substance on the tip

of her tongue.  Gallagher described the substance he observed as

"consistent with how crack cocaine" appeared to him.  Specifi

cally, he described the object as "small, white, had, like a

rock[-]like shape to it, jagged edges."  

		Gallagher asked defendant to stick out her tongue.  He

observed the substance for approximately 45 seconds, while he was

trying to put on a rubber glove so that he could remove the

substance.  Before Gallagher could put on the glove, defendant

put her tongue back inside her mouth.  He asked her again to put

her tongue out, but when she did, the substance was gone. 

Gallagher testified that after he first saw the substance on

defendant's tongue he had probable cause to believe she had narcotics in her mouth, and he then ordered her to stick her

tongue out.  Defendant was arrested for obstructing justice.    

		Defendant denied that she had any controlled substance

or anything else on her tongue.  The trial court found that the

State had proved that defendant had violated a condition of her

conditional discharge, that defendant "didn't keep her tongue in

an area where Officer Gallagher could retrieve what he suspected

was crack cocaine that he saw on her tongue," and "whether it was

crack cocaine or not, doesn't make any difference."        	

		In a hearing to revoke conditional discharge, the State

has the burden of going forward and proving a violation by a

preponderance of the evidence.  People v. Whitfield, 147 Ill. App. 3d 675, 679, 498 N.E.2d 262, 265 (1986).  In the appellate

court, a revocation of conditional discharge will be overturned

only when it is contrary to the manifest weight of the evidence. 

Whitfield, 147 Ill. App. 3d at 679, 498 N.E.2d at 265.  De novo review is only appropriate when neither the facts nor the credi

bility of witnesses is disputed.  People v. Anthony , 198 Ill. 2d 194, 201, 761 N.E.2d 1188, 1191 (2001).  Even when the facsts are

undisputed, where reasonalbeble rpersons could draw divergent

inferences from those facts, any question of fact should be

resolved by the trier of fact.  Jacskkson v. TLC Assosciates, Inc.,, 185 Ill. 2d 418, 424, 706 NE..E.2d 460, 463 (1998).   

		The State's amended petition to revoke alleged:

		"[Defendant] wilfully violated the conditions 

		of her conditional discharge in that on Feb-

		ruary 9, 1999[,] she committed the offense of 

		[o]bstructing [j]ustice in that she knowingly 

		and with the intent to prevent her own appre-

		hension destroyed evidence, in violation of 

		720 ILCS 5/31-4."

The argument is made that defendant had already been apprehended

when she destroyed evidence and that the State accordingly failed

to prove an essential element of the offense as charged.

		The statute that proscribes obstructing justice states:

			"A person obstructs justice when, with 

		intent to prevent the apprehension or obstruct 

		the prosecution or defense of any person, he 

		knowingly commits any of the following acts:

			(a) Destroys, alters, conceals or dis-

		guises physical evidence ***[.]"  720 ILCS 

		5/31-4(a) (West 1998).

	    In People v. Miller, 253 Ill. App. 3d 1032, 1036, 628 N.E.2d 893, 897 (1993), a conviction of obstructing justice was

reversed because "[t]he State failed to prove beyond a reasonable

doubt an essential element of the offense as charged."  Defen-

dant, who had been arrested for possession of alcohol by a minor,

gave two false names while in custody at the police station.  The

complaint charged defendant with intent to prevent his own

"apprehension" and did not charge him with intent to obstruct his

prosecution.  Miller, 253 Ill. App. 3d at 1035, 628 N.E.2d at 896.  "Since the evidence shows that the defendant was already under arrest when he gave purportedly false names to the officer,

he could not have offered such information with the intent to

prevent his apprehension or arrest--an event that had already

taken place."  Miller, 253 Ill. App. 3d at 1036, 628 N.E.2d at 897.  

		In Miller, the defendant had already been arrested at the time the obstruction of justice occurred.  The argument is

made that even though the defendant in the present case had not

been arrested, she had been "apprehended" in the sense that she

would not have felt that she was free to leave.  Defendant was

not apprehended for possession of narcotics, however, when she

was first asked to open her mouth.  We reject any implication in

Miller that it is impossible for a person who has been appre hended on one charge to destroy evidence in an attempt to prevent

his apprehension on another charge.  Defendant here had not been

apprehended on any charge when she was first asked to open her

mouth.

		When an information is attacked before trial, the

information must strictly comply with the pleading requirements

set out in section 111-3(a) of the Code of Criminal Procedure of

1963 (Code) (725 ILCS 5/111-3(a) (West 1998)).  People v. Hughes, 229 Ill. App. 3d 469, 471, 592 N.E.2d 668, 669 (1992).  When

attacked for the first time on appeal, however, the sufficiency

of an information is not determined by whether its form precisely

follows the provisions of section 111-3(a) of the Code.  People v. Gilmore, 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460 (1976).  Rather, it is sufficient that the information "apprised the

accused of the precise offense charged with sufficient specific

ity to prepare his defense and allow pleading a resulting convic

tion as a bar to future prosecution arising out of the same

conduct."  People v. Pujoue, 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440 (1975); see also People v. Thingvold, 145 Ill. 2d 441, 448, 584 N.E.2d 89, 91 (1991).  Failure to allege an element of the

offense in the complaint does not necessarily violate the appel

late sufficiency standard.  Pujoue, 61 Ill. 2d at 339, 335 N.E.2d at 440.   

		It does not appear that defendant was hindered in any

way from preparing her defense, whether she was "apprehended"

moments before she swallowed the substance or moments after. 

Defendant knew exactly what she was charged with doing.  Nor is

there any problem with pleading the conviction in this case as a

bar to future prosecution arising out of the same conduct.  "A

complaint for a statutory offense must either set out the offense in the language of the statute or specifically set forth the facts which constitute the crime and must notify the accused with

reasonable certainty of the precise offense charged."  (Emphases

added.)  Miller, 253 Ill. App. 3d at 1035, 628 N.E.2d at 896.  A prior prosecution on the same facts may be proved by resort to

the record, not just by looking at the charging document. 

Gilmore, 63 Ill. 2d at 30, 344 N.E.2d at 461.  The charge here was that defendant committed the offense of "[o]bstructing

[j]ustice" in that she "destroyed evidence" on February 9, 1999.  Defendant knew exactly what she was alleged to have done, whether

that was labeled preventing "apprehension" or obstructing "prose

cution."  

		The difference between preventing "apprehension" and

obstructing "prosecution" appears to be a matter of timing. 

Destroying evidence would appear to prevent apprehension up until

the time of apprehension; after that time, destroying evidence

would appear to obstruct prosecution.  The precise moment at

which apprehension occurs, however, is not relevant to any issue,

at least not in this case.  The same intent that would prevent

apprehension would obstruct prosecution.  The State is generally

not required to prove that a crime was committed at a particular

time, unless the allegation of a particular time is an essential

ingredient of the offense or a statute-of-limitations question is

involved.  People v. Suter, 292 Ill. App. 3d 358, 363, 685 N.E.2d 1023, 1027 (1997).  

		The date alleged in the charging instrument ordinalrily

need not ordinarily be proved precisely and any irregularity between the

indictment and proof establishing the offense was committed on a

date other than that precisely alleged is not a fatal variance. 

People v. Pecoraro, 144 Ill. 2d 1, 19, 578 N.E.2d 942, 950 (1991) (defendant sufficiently apprised of precise offense and not shown

to have been prejudiced by error in date of offense).  To be

fatal, a variance between the charging document and the proof at

trial "'must be material and be of such a character as may mislead

the accused in making his defense or expose him to double jeop ardy.'  [Citations.}] ["  People v. Davis, 82 Ill. 2d 534, 539, 413 N.E.2d 413, 416 (1980); People v. Santiago, 279 Ill. App. 3d 749, 753, 665 N.E.2d 380, 382 (1996) (misnaming the victim did not

surprise or mislead defendant; no risk of double jeopardy because

a prior prosecution on the same facts may be proved by resort to

the record).  Even if defendant was really convicted of obstruc

tion of prosecution, there was no fatal variance on the facts of

this case.  

		Defendant next argues that the State did not prove that

the substance she swallowed was a controlled substance.  A

defendant's state of mind, however, can be inferred from proof of

the surrounding circumstances.  People v. Morgan, 169 Ill. App. 3d 368, 371, 523 N.E.2d 560, 562 (1988) (documents concealed

after service of subpoena and never found could reasonably be

inferred to have supported State's case in underlying investiga

tion).  It is not necessary that defendant actually be charged

with the underlying offense.  See People v. Hollingsead, 210 Ill. App. 3d 750, 762, 569 N.E.2d 216, 224 (1991).  "The intent to

obstruct an individual's defense is not negated by the fact that

the suspect is subsequently not charged with a corresponding

crime."  Hollingsead, 210 Ill. App. 3d at 762, 569 N.E.2d at 224 (police officer obstructed justice by planting false evidence). 

The fact that an obstruction of justice is successful, the fact

that it prevents the prosecution of the underlying offense, does

not prevent the prosecution of the obstruction charge.

		Defendant finally argues that her extended-term sen tence must be reduced in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63

(2000), because the State did not allege in the charging instru

ment or prove beyond a reasonable doubt that her prior record

justified an extended term pursuant to section 5-5-3.2(b)(1) of

the Unified Code of Corrections.  730 ILCS 5/5-5-3.2(b)(1) (West

1998).  This court has previously addressed this argument and

rejected it in People v. Dillard, 319 Ill. App. 3d 102, 109, 745 N.E.2d 185, 191 (2001).  In any event, defendant's voluntary

guilty plea to the underlying obstruction -of -justice charge

forfeits any Apprendi claim.  People v. Jackson, 319 Ill. App. 3d 110, 113, 744 N.E.2d 1275, 1278 (2001); see also People v. Peeples, 155 Ill. 2d 422, 491, 616 N.E.2d 294, 326 (1993) (volun tary guilty plea waives all errors that are not jurisdictional,

including constitutional errors).        

		For the foregoing reasons, we affirm the trial court's

judgment.

		Affirmed.

		TURNER, J., specially concurs.

		MYERSCOUGH, P.J., dissents.

		JUSTICE TURNER, specially concurring:

		I fully concur in the majority opinion and add the

following.  "[I]n the context of the criminal statute involved,

the established, plain[,] and ordinary meaning of 'apprehension'

is a 'seizure, taking, or arrest of a person on a criminal charge.'"  (Emphasis added.)  Miller, 253 Ill. App. 3d at 1036, 628 N.E.2d at 897, quoting Black's Law Dictionary 101 (6th ed.

1990).  Here, defendant had been seized when she swallowed the

substance but the officer had not placed her under arrest.  In

fact, by swallowing the substance, she destroyed evidence that

may have led to her arrest for possession of a controlled or

look-alike substance.  Accordingly, the State proved defendant

swallowed the substance with the intent to prevent her arrest. 

		PRESIDING JUSTICE MYERSCOUGH, dissenting:

		I respectfully dissent.  I agree with the majority's

finding that "[d]efendant was not apprehended for possession of

narcotics *** when she was first asked to open her mouth."  (Emphasis added.)  Slip op. at 5.  However, the reason she was

asked to open her mouth was because the officer suspected she may

be hiding drugs.  Brian Gallagher, a police officer with the City

of Champaign, testified that he asked defendant to open her mouth

because, in his experience, narcotics buyers will often hide

drugs in their mouths so that they may be easily destroyed to

prevent their discovery by police.  Gallagher testified that he

did not "command" defendant to open her mouth.  He "asked" her. 

He testified, however, that after defendant swallowed, opened her

mouth, and he observed the substance, he had probable cause to

believe there were narcotics in her mouth.  He then "ordered" her

to stick her tongue out and, at that point, she was apprehended.  

Miller, 253 Ill. App. 3d at 1036, 628 N.E.2d at 897 (in the context of the obstruction-of-justice statute, the established,

plain, and ordinary meaning of apprehension is a seizure, taking,

or arrest of a person on a criminal charge).  A seizure occurs

when, by means of physical force or show of authority, a person's

freedom of movement is restrained.  People v. Brownlee, 186 Ill. 2d 501, 517, 713 N.E.2d 556, 564 (1999).  When considering

whether a reasonable person would have believed that he was not

free to leave, the court will look at the totality of the circum

stances surrounding the incident.  United State v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877

(1980).  When defendant stuck out her tongue, Gallagher observed

the substance on her tongue.  She then swallowed, and the sub

stance was gone.  

		I find that, under the circumstances here, defendant

would not have felt that she was free to leave and, therefore,

she had been apprehended at the time she swallowed the substance

in her mouth.  She, therefore, could not have swallowed the

substance to prevent her apprehension because that event had already taken place.  Accordingly, I conclude that the State

failed to prove an essential element of the offense as charged. 

Because defendant was not proved guilty of the offense as

charged, I would reverse.