NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except

in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 200244-U

Order filed November 21, 2022

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022 

THE PEOPLE OF THE STATE )

OF ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

JACKIE NUNN JR., ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 21st Judicial Circuit, 

Kankakee County, Illinois

Appeal No. 3-20-0244 

Circuit No. 18-CF-622 

Honorable 

Kathy S. Bradshaw Elliott,

Judge, Presiding 

____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. 

Justices Holdridge and Hettel concurred in the judgment.

____________________________________________________________________________

 ORDER

¶ 1 Held: State did not prove defendant possessed controlled substance with intent to deliver; 

conviction reduced to possession of a controlled substance and cause remanded for 

resentencing. 

¶ 2 Defendant was convicted of unlawful possession of a controlled substance with the intent 

to deliver and unlawful possession of a controlled substance. The trial court merged the possession 

charge with the intent to deliver charge and sentenced defendant to a four-year term of 

imprisonment. He appeals his convictions. We reduce his conviction for unlawful possession of a 
2 

controlled substance with intent to deliver to unlawful possession of a controlled substance and 

remand for resentencing. 

¶ 3 I. BACKGROUND

¶ 4 Defendant Jackie Nunn Jr. was arrested after police officers saw him in a parking lot at a 

housing project in Kankakee. He was charged with possession of a controlled substance with intent 

to deliver (720 ILCS 570/401(c)(2) (West 2018)) (count I) and unlawful possession of a controlled 

substance (id. § 402(c)) (count II). Count I alleged that defendant possessed between 1 and 15 

grams of cocaine with intent to deliver. Count II alleged that defendant possessed less than 15 

grams of cocaine. 

¶ 5 A jury trial took place. Kankakee police officer Brad Latham testified for the State. He was 

involved in the tactical unit which dealt with narcotics investigations and suppression and gun 

crimes, including participation by law enforcement officers and confidential informants in 

“actively purchasing drugs off of the streets.” He had been involved in investigating more than 20 

purchases. His narcotics training including Drug Enforcement Agency (DEA) training, courses in 

street interviews, and narcotics identification classes. He was on patrol on October 17, 2018, 

around 6:40 p.m. near the housing projects with his partner, Thomas Martin, who was driving a 

Dodge Charger with a spotlight, inside emergency lights and municipal license plates. The vehicle 

was an unmarked police car but Latham was in police uniform. The police department had an 

agreement with the city and the housing authority that the police would enforce the rule that only 

residents could be on housing project property and the police would ask nonresidents to leave the 

premises. If the person returned after being told to leave, the police would arrest them. The role of 

the police in monitoring the housing project was known in the community.
3 

¶ 6 Latham noticed defendant and James Williams Jr., standing on housing project property 

near the parking lot. He knew defendant did not live in the housing projects. He did not see the 

men engaged in any transactions and did not see defendant holding anything. Martin pulled into 

the parking lot and they attempted to make contact with defendant and Williams. Defendant began 

walking across the parking lot and passed in front of the officers’ vehicle. Defendant began to run 

when Latham exited the vehicle. Latham pursued him. When defendant rounded the front of a car 

in the parking lot, “he’s leaning down with his left arm and shoulder in a release—you know, in a 

releasing movement, to drop something, put something down, something of that nature; 

completely, you know, goes downward.” Latham saw something fall out of defendant’s hands. At 

that time, it was dark outside and Latham’s ability to see was diminished. 

¶ 7 Defendant continued to run and Latham caught up to him a half block away and arrested 

him. Latham found a cell phone and $746 in cash when he searched defendant. Based on his 

training and on-the-job experience, Latham was familiar with items commonly used to consume 

cocaine. Defendant did not have on his person a crack pipe, needle, spoons with burn marks, 

lighters, hollow metal or glass items with steel wool-type filters or other items Latham knew to be 

common for cocaine use. Latham immediately returned to the parking lot area where he saw 

defendant drop something. No one else was in the area. Under the front bumper of the vehicle 

defendant had rounded, he found two clear plastic bags that contained a white, rock-like substance, 

which he knew to be crack cocaine. He photographed the bags before he removed them from under 

the car and secured them as evidence. The photographs demonstrated the two bags were located 

about two feet apart.

¶ 8 On cross-examination, Latham acknowledged that drug users do not always have 

paraphernalia on them. He did not know whether defendant was a drug addict. It was not illegal to 
4 

carry money and he was unaware of the source of the $746 found on defendant. It could have been 

lottery winnings or defendant’s cashed paycheck. It was dark outside when the events occurred. 

Latham agreed defendant could have been running because he was on housing project property 

and was not a resident. He was not aware of Williams’s actions while Latham chased defendant. 

He did not ask Williams if he bought drugs from or sold drugs to defendant. Williams was not 

arrested. Latham did not find any other contraband under the vehicle but he did not look for any 

nonillegal items. There could have been rocks, sticks and bottles under the car and Latham agreed 

defendant could have dropped any sort of item. He did not submit the recovered bags for DNA or 

fingerprint testing.

¶ 9 Martin testified in accord with Latham regarding their patrol, coming upon defendant and 

Williams in the parking lot, and the agreement to arrest nonresidents. He was aware neither 

defendant nor Williams were residents of the housing project. He did not observe anything in 

defendant’s hands or see him and Williams engage in any transactions. Defendant walked in front 

of the police vehicle “[a]t an aggressive pace.” After defendant began to run, Martin told Williams 

to remain where he was and he joined the chase after defendant. He caught up to Latham after 

defendant was handcuffed. On cross-examination, Martin said he was unaware of Williams’s 

actions during the foot chase but Martin saw Williams walk up the sidewalk to where they were 

standing with defendant after his arrest. He did not know if Williams had drugs, guns, large 

amounts of cash, or a spoon, needle or pipe for cocaine use on his person. Martin did not question 

or arrest Williams. He did not see anything in defendant’s hands or see him throw anything. He 

was unaware why defendant ran.
5 

¶ 10 The parties stipulated that Kankakee police officer Scott Monferdini transported the two 

bags of evidence to the Illinois State Police (ISP) Crime Lab for forensic testing and returned the 

items to the Kankakee Police Department evidence vault when testing was completed. 

¶ 11 Cynthia Koulis, a forensic scientist with the ISP, testified as an expert in forensic science 

in the field of cannabis and controlled substances. She identified State’s exhibit No. 1 as 31 bags 

containing an off-white, rock-like substance and State’s exhibit No. 2 as 17 bags with the same 

substance. She analyzed and weighed 20 bags from exhibit No. 1 but did not do any further analysis 

because the 20 bags weighed 1.3 grams, which was the weight needed for the charged offense. The 

substance in the 20 bags tested positive for the presence of cocaine. On cross-examination, Koulis 

said she did not analyze or weigh the other bags in exhibit No. 1 or any bags in exhibit No. 2. She 

did not perform any purity tests and was unaware if other substances were in the samples. No DNA 

or fingerprint testing had been requested, although the ISP had the ability to do so. 

¶ 12 The State rested and defendant moved for a directed verdict, which the trial court denied. 

The defense rested. Following closing arguments, the jury engaged in deliberations, during which 

it submitted three questions to the trial court. The questions were: 

(1) “Where is the sidewalk that the car is parked on?” 

(2) “Did Williams walk on the sidewalk and walk past the car where the baggies were 

found?” 

(3) “Is there a diagram of the path both Nunn and Williams took in comparison to the 

location of the baggies and the car?”

¶ 13 The trial court provided the following answer to the questions: “You have heard the 

evidence and been instructed as to the applicable law. No other answer can be given to your 

inquiry.” 
6 

¶ 14 The jury ultimately found defendant guilty of unlawful possession of a controlled substance 

with intent to deliver and unlawful possession of a controlled substance. Defendant moved for a 

new trial, which the court denied. The trial court merged the unlawful possession of a controlled 

substance count into the unlawful possession of a controlled substance with intent to deliver count 

and sentenced defendant to a four-year term of imprisonment. After his motion to reconsider his 

sentence, defendant timely appealed.

¶ 15 II. ANALYSIS 

¶ 16 The issue on appeal is whether the State proved defendant guilty beyond a reasonable doubt 

of unlawful possession of a controlled substance with intent to deliver. Defendant argues that the 

State failed to prove he possessed the cocaine found in the parking lot, and further failed to prove 

that the possession was not for personal use but intended for delivery. He points to the fact that 

neither Latham nor Martin saw him holding any drugs or engaging in a drug transaction. Latham 

did not see the item that he testified he saw defendant drop near the car in the parking lot during 

the foot pursuit. In the alternative, defendant points to the testimony that the cocaine amounted to 

1.3 grams as support that it was for personal use and the State failed to prove intent to deliver.

¶ 17 Defendant was convicted of unlawful possession of a controlled substance with intent to 

deliver 1 gram or more but less than 15 grams of a substance containing cocaine and unlawful 

possession of a controlled substance. 720 ILCS 570/401(c)(2), 402 (West 2018). Possession may 

be actual or constructive; to prove constructive possession, the State must establish beyond a 

reasonable doubt that “defendant had knowledge of the presence of the contraband and exercised 

‘immediate and exclusive’ control over the area where the contraband was discovered.” People v. 

Terrell, 2017 IL App (1st) 142726, ¶ 18 (quoting People v. Tates, 2016 IL App (1st) 140619, ¶ 19). 

To establish possession with intent to deliver, the State must establish beyond a reasonable doubt 
7 

that defendant knew of the drugs, they were in his immediate possession or control and he intended 

to deliver them. People v. Robinson, 167 Ill. 2d 397, 407 (1995). 

¶ 18 Knowledge may be demonstrated with evidence of the defendant’s acts, declarations or 

conduct from which it can be fairly inferred that he knew the drugs existed where they were found. 

People v. Maldonado, 2015 IL App (1st) 131874, ¶ 40. Possession may be proven even where 

possession is joint or where other people have access to the area where the drugs were found. Id.

¶ 43. To determine whether possession is with the intent to deliver, the court considers the 

following factors as probative of intent: the quantity of drugs and whether it is too large for 

personal consumption; high purity of the drugs; weapon possession; possession of police scanners, 

beepers or cell phones; possession of large amounts of cash; possession of drug paraphernalia; and 

the manner in which the drugs are packaged. Robinson, 167 Ill. 2d at 408. 

¶ 19 Defendant asserts that the State did not establish that he possessed the cocaine recovered 

from the parking lot. In support of his assertion, defendant points to the following: neither officer 

saw him engaged in a transaction with Williams, they did not identify that he had something in his 

hands, they did not see what he threw under the vehicle, and Williams’s presence was unaccounted 

for during the foot pursuit and defendant’s arrest. Contrary to defendant’s assertion, the State 

proved constructive possession. Defendant attempted to avoid the officers as they pulled into the 

parking lot, walking aggressively in front of their vehicle before beginning to run away from 

Latham as he exited the unmarked police car. See People v. Moore, 2015 IL App (1st) 140051, 

¶ 26 (evidence of flight tends to demonstrate defendant’s consciousness of guilt). While defendant 

submits it is also feasible that he ran from the police to avoid being arrested for trespassing on 

housing project property, it is also a reasonable inference that he ran because he was holding 

cocaine. This inference is supported by him tossing an item later discovered to be cocaine. 
8 

Moreover, he never offered any evidence that he did not live in the housing project and thus fled 

as a trespasser. Id. (“The inference of guilt which may be drawn from flight depends upon the 

knowledge of the suspect that the offense has been committed and that he is or may be suspected.”).

¶ 20 Defendant relies on People v. Boswell, 19 Ill. App. 3d 619 (1974) as support for his claim 

that the State failed to prove possession due to evidentiary gaps. Boswell is distinguished. In that 

case, an officer in a squad car saw a bag thrown from the front passenger side of a vehicle he was 

pursuing. Id. at 620. The package was recovered and determined to contain cannabis. Id. at 621. 

The reviewing court reversed the defendant’s conviction for cannabis possession, finding the State 

did not prove possession. Id. at 622. The court rejected the assumption that the defendant possessed 

the cannabis on account of it being tossed from the front passenger seat of the vehicle where the 

defendant was seated because other individuals were also in the vehicle and could have tossed the 

drugs, noting speculation and conjecture were insufficient to sustain the conviction. Id. Contrary 

to the circumstances in Boswell, defendant was the only person who Latham identified as tossing 

the bags of cocaine.

¶ 21 Latham testified that he saw defendant lean down and release something as he turned in 

front of a parked car during the foot pursuit. Latham could not identify the item defendant released. 

However, immediately after catching and arresting defendant, Latham returned to the area of the 

parking lot where he saw defendant toss something and discovered the two bags of cocaine. 

According to Latham, the time he chased defendant after the toss, through the arrest and including 

Latham’s return to the parking lot was under a minute. No one else was in the parking lot. Although 

Williams was also in the parking lot initially, he was on the other side from where the drugs were 

found and apparently travelled alongside the parking lot to the site of defendant’s arrest rather than 

following defendant’s path through the parking lot. According to Martin, Williams had followed 
9 

the pursuit by walking up the sidewalk parallel to defendant’s route, ending up in the area 

defendant was arrested. Unlike Boswell, defendant was the only person seen tossing an item in the 

area where two bags of cocaine were shortly thereafter discovered.

¶ 22 Defendant’s flight, his attempt to hide the cocaine, the lack of other persons in the parking 

lot and the immediacy of Latham’s discovery of the cocaine after witnessing defendant “release” 

something establish defendant’s constructive possession of the cocaine. The State did not fail to 

prove him guilty of possession. 

¶ 23 The State did, however, fail to establish that defendant possessed the cocaine with an intent 

to deliver. The only factors in support of an intent to deliver that the State proved were quantity 

and packaging. Yet, the State did not present any evidence connecting either the quantity of 

cocaine or its packaging with an intent to deliver. The State did not offer any evidence regarding 

what amount would be considered reasonable for personal use and whether the quantity in 

defendant’s possession exceeded that amount. Neither Latham nor Martin testified as to what is 

considered an amount for personal consumption. People v. Ellison, 2013 IL App (1st) 101261, 

¶ 15 (evidence insufficient to sustain conviction for possession with intent to deliver where State 

did not present testimony regarding whether amount of seized contraband exceeded amount 

reasonable for personal use). Here, the tested cocaine weighed 1.3 grams, an amount found 

consistent with personal use in other cases. See Robinson, 167 Ill. 2d at 413 (2.2 grams of PCP 

and 2.8 grams of cocaine may be consistent with personal use).

¶ 24 In Ellison, 2013 IL App (1st) 101261, ¶¶ 21-22, the reviewing court found that 3.12 grams 

of cocaine and 0.04 grams of heroin were not inconsistent with personal use. The court rejected 

the State’s argument that the quantity of contraband, along with the lack of drug paraphernalia on 

the defendant, established an intent to deliver. Id. As here, “the police officers in this case did not 
10 

testify as ‘experts as to the packaging, cost, and typical personal usage of controlled substances.’ 

” Id. at ¶ 22 (quoting People v. Sherrod, 394 Ill. App. 3d 863, 866 (2009)). In Sherrod, the 1.8 

grams of cocaine in 17 packages recovered from defendant, without more, was insufficient to 

support an intent to deliver. Sherrod, 394 Ill. App. 3d at 866. Defendant had $35 in cash and did 

not possess weapons, scanners, beepers, a cell phone or drug paraphernalia. Id. Defendant was not 

seen engaging in any drug transactions. Id. at 867. Like Ellison and the instant case, the State did 

not offer evidence of the contraband’s purity. Id. at 866. Similarly, in People v. Clinton, 397 Ill. 

App. 3d 215, 226 (2010), the evidence was found insufficient to support a conviction for 

possession with intent to deliver where defendant possessed 13 packets of suspected heroin and 

$40 in cash. He did not have any drug paraphernalia, a cell phone, pager or weapons on his person. 

Id. The State’s witnesses did not testify that the amount of contraband was inconsistent with 

personal use, that it was packaged in a manner typical for sale, that the area was known for drug 

activity, or that particular paraphernalia was required to consume the contraband. Id.

¶ 25 Neither Latham nor Martin testified as to common means of packaging drugs for sale or 

the cost of cocaine. In fact, neither officer testified about the specific packaging of the seized 

cocaine. Nor did the State present any evidence that the packaging was representative of drug 

dealing, not drug use. The only testimony regarding the packaging of the contraband was provided 

by Koulis, the forensic scientist and did not connect the packaging to an intent to deliver. In 

addition, although Koulis testified regarding the cocaine she analyzed, she only tested enough to 

reach the required weight for the offense charged. She did not analyze all the packets in exhibit 

No. 1 or any of the packets in exhibit No. 2. While it is not unreasonable to assume the second bag 

contained packages of cocaine, the combined quantity of the two bags does not definitively support 

intent to deliver. Robinson, 167 Ill. 2d at 410 (quantity in excess of amount needed for statutory 
11 

minimum is one of “many factors” to consider when determining intent to deliver). Similarly, 

Koulis testified that she did not test the purity of the cocaine and, in her opinion, the materials she 

tested was a substance that contained cocaine. Her testimony regarding the purity was not based 

on a forensic determination but on a lack of scientific determination. Thus, the State did not 

establish whether it was “pure” or “cut” as is typical with cocaine for sale. 

¶ 26 Defendant did not possess any weapons or drug paraphernalia. Latham testified to the 

variety of items a drug addict might employ to use cocaine, none of which were discovered on 

defendant. Latham also testified, however, that not all users carry their paraphernalia and that he 

did not know whether defendant suffered from a drug addiction. Defendant was in possession of a 

cell phone, a common item, and $746 in cash. There was no testimony as to the source of the cash 

and Latham said he did not know if defendant had won the money on a lottery ticket or if it was 

earnings from his employer. The amount of cash was not so excessive as to exclude that defendant 

was carrying it in order to grocery shop or purchase a television. Finally, the discovered cocaine 

was packaged in small bags divided among two larger bags. While the multiple small packages 

could suggest drug sales, they could also indicate that defendant purchased the two bags for his 

personal use and had not yet returned home with them. As Martin testified, Williams was not asked 

whether he sold the cocaine to defendant. 

¶ 27 We find the State did not produce the minimum evidence to sustain Nunn’s conviction for 

intent to deliver. Where, as here, a small amount of drugs is seized, the minimum evidence to 

sustain a conviction for intent to deliver is the drugs were packaged for sale and one additional 

factor indicating intent to deliver. Clinton, 397 Ill. App. 3d at 225. The State did not provide any 

testimony connecting the amount of cocaine recovered and the way it was packaged or present any 

other Robinson factors sufficient to establish beyond a reasonable doubt defendant possessed the 
12 

cocaine with the intent to deliver. The State did not demonstrate the quantity could not be for 

personal use. Neither the defendant’s cell phone nor his money could overcome the lack of other 

factors supporting intent to deliver. We reduce defendant’s conviction for unlawful possession of 

a controlled substance with intent to deliver to unlawful possession of a controlled substance and 

remand for resentencing.

¶ 28 III. CONCLUSION

¶ 29 For the foregoing reasons, the judgment of the circuit court of Kankakee County is

reversed, conviction is reduced and case is remanded.

¶ 30 Reversed and remanded.