ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Johnson, 2013 IL App (4th) 120162

Appellate Court

Caption

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

KENNETH JOHNSON, Defendant-Appellant.

 District & No. Fourth District

Docket No. 4-12-0162

Filed April 5, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In the absence of proof beyond a reasonable doubt that defendant

possessed heroin with the intent to deliver it, defendant’s convictions on

two counts of unlawful possession of a controlled substance with intent

to deliver were reduced to the lesser-included offenses of unlawful

possession of a controlled substance, his sentence was vacated and the

cause was remanded for a new sentencing hearing.

Decision Under 

Review

Appeal from the Circuit Court of McLean County, No. 11-CF-56; the

Hon. James E. Souk, Judge, presiding.

Judgment Affirmed in part as modified and vacated in part; cause remanded with

directions.
Counsel on

Appeal

Michael J. Pelletier, Karen Munoz, and Michael H. Vonnahmen, all of

State Appellate Defender’s Office, of Springfield, for appellant.

Ronald C. Dozier, State’s Attorney, of Bloomington (Patrick Delfino,

Robert J. Biderman, and Kathy Shepard, all of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the

court, with opinion. 

Justice Knecht concurred in the judgment and opinion.

Justice Appleton concurred in part and dissented in part, with opinion.

OPINION

¶ 1 Following a July2011 trial, a juryconvicted defendant, Kenneth Johnson, of (1) unlawful

possession with intent to deliver a controlled substance (more than 100 grams but less than

400 grams of a substance containing heroin) (720 ILCS 570/401(a)(1)(B) (West 2008)) and

(2) unlawful possession of a controlled substance (more than 15 grams but less than 100

grams of a substance containing heroin) (720 ILCS 570/401(a)(1)(A)(West 2008)). The trial

court thereafter sentenced defendant to 10 years in prison.

¶ 2 Defendant appeals, arguing that the State failed to prove him guilty beyond a reasonable

doubt. Because we conclude that the State failed to present evidence that defendant intended

to deliver the heroin under the theory the State presented to the jury, we affirm in part as

modified, vacate in part, and remand with directions.

¶ 3 I. BACKGROUND

¶ 4 In January 2011, the State charged defendant with (1) unlawful possession with intent

to deliver a controlled substance (more than 100 grams but less than 400 grams of a

substance containing heroin) (720 ILCS 570/401(a)(1)(B) (West 2008)) (count I) and (2)

unlawful possession of a controlled substance (more than 15 grams but less than 100 grams

of a substance containing heroin) (720 ILCS 570/401(a)(1)(A) (West 2008)) (count III).

Defendant’s case proceeded to a July 2011 jury trial, at which the State presented the

following evidence and argument.

¶ 5 In his opening statement, the prosecutor outlined for the jury the State’s charges and the

evidence that it planned to offer to satisfy its burden of proof. In that pursuit, the prosecutor

explained that the issues before the jury were as follows: “whose [heroin] was it and who

knew about it.” The prosecutor concluded his opening remarks bynoting that the State would

be asking the jury to return a guilty verdict on both charges based on the fact that defendant

was “guiltyof constructivelypossessing this heroin.” Defendant’s opening statement focused

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primarilyon explaining that theState’s keywitness, upon whom the State’s case “depend[ed]

entirely,” did not support the charges against defendant.

¶ 6 The State called Illinois State Trooper Scott Ahrens, who testified that at approximately

1:20 a.m., he initiated a traffic stop for a speeding violation on Interstate 55. Ahrens found

three people in the vehicle, Stephen McCrady, Rhonda Simmons, and defendant. McCrady

was in the driver’s seat, Simmons was in the front passenger seat, and defendant was in the

backseat of the vehicle. Ahrens ordered McCrady to exit the vehicle because he had parked

partially on the interstate highway and it was “obvious from the get-go” that McCrady did

not have a driver’s license. Ahrens thereafter ordered defendant to move the vehicle onto a

nearby exit ramp.

¶ 7 Illinois State Trooper Shadd Gordon testified that he assisted Ahrens in the traffic stop.

When he arrived on the scene, McCrady was inside Ahrens’ vehicle and Ahrens was

handcuffing defendant. Ahrens asked Simmons to exit the vehicle, and she did so, carrying

her purse and a McDonald’s bag. Ahrens told Simmons that she could leave her things in the

vehicle. Simmons responded by placing her purse in the vehicle but tossing the McDonald’s

bag on the ground beside the vehicle. She thereafter picked the bag up off the ground but left

a cup that she had previously thrown out the window of the vehicle. Gordon retrieved the cup

and found a black metal canister inside of it, which contained what would later be identified

as heroin. Gordon later found an additional amount of heroin in a pill bottle inside Simmons’

purse. (Defendant stipulated to the fact that the substances recovered were heroin.)

¶ 8 Ahrens asked Simmons whether “everything” was hers, and she responded by nodding

her head to indicate, “yes.” Simmons later said that she knew about the black metal container

and the pill bottle, but did not know about the cup; she explained to Ahrens that McCrady

had ordered her to hold the heroin when they left Chicago because McCrady and defendant

believed that women were less likely to be searched if confronted by the police. Simmons

stated that she was concerned when Ahrens stopped them for speeding, and she wanted to

get rid of the heroin. However, when defendant moved the vehicle on to the exit ramp,

defendant ordered her to hold onto the heroin. Ahrens then interviewed defendant, who gave

inconsistent accounts of why the three were traveling from Chicago.

¶ 9 Simmons testified that she left St. Louis with McCrady and defendant to get heroin from

someone McCrady knew in Chicago. She said that the reason defendant came along was to

be the driver, given that neither she nor McCrady had a driver’s license. The group passed

around a small bottle of heroin for their personal use on the way to Chicago and on the return

trip. All three knew whytheywere traveling to Chicago; McCradywanted to purchase heroin

from his source. As to why they traveled to Chicago and who intended to keep the heroin to

distribute, Simmons testified on cross-examination as follows:

“[SIMMONS:] First of all, I knew exactly what [McCrady] was doing.

***

[DEFENSE COUNSEL:] He told you to hold [the heroin]?

[SIMMONS:] Yes.

[DEFENSE COUNSEL:] And when you testified earlier, you said you took it and

held it because [McCrady] told you to?

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[SIMMONS:] Yes. 

[DEFENSE COUNSEL:] Right? You’re kind of in a position where you’re expected

to do what he tells you to do?

[SIMMONS:] Well first of all, that’s my kid’s father. He supported my habit.

[DEFENSE COUNSEL:] Okay. *** I guess we should explain; maybe the jury

knows, maybe they don’t. But when you say he [‘]supported your habit,[’] means he

bought the heroin for you and let you use it, right?

[SIMMONS:] He didn’t buy the heroin for me, he–

[DEFENSE COUNSEL:] No, when you say–

[SIMMONS:] He supplied me to make sure I wasn’t sick every day. That’s what he

did.

[DEFENSE COUNSEL:] Okay. But that means he gave you heroin every day so that

you could use it, right?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] That’s what you mean? All right. But [McCrady] was the

one giving you heroin before, and you indicated you were clean for a while, and when

you started dating him, you started using again; is that right?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] And so–but [McCrady] made the purchase, [he] owned the

heroin, right?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] He just had you hold it?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] He wasn’t saying, take it home, do whatever you want with

it, was he?

[SIMMONS:] No.

[DEFENSE COUNSEL:] It was still his?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] And you said you passed it around, but you said [McCrady]

told you to?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] Okay. What did [you do] with that heroin, you did what

[McCrady] told you to do?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] Okay. And you’re upset today because [McCrady] got you

into this and he’s leaving you hanging, right?

[SIMMONS:] Both of them are, for real. Because they still lying about they was

[sic]–it wasn’t theirs. So whose was it?

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[DEFENSE COUNSEL:] Okay. But [McCrady] planned the trip, right?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] And [McCrady] talked to the dealer, right?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] And [McCrady] *** was the one who said [‘]let’s go to

Chicago and get the stuff[’]?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] And when you got back to St. Louis, [McCrady] was going

to take it, wasn’t he?

[SIMMONS:] Right.

[DEFENSE COUNSEL:] Do you know what he was going to do with it?

[SIMMONS:] I guess he was–well, I know what he was going to do with it.

[DEFENSE COUNSEL:] What was he–

[SIMMONS:] He was going to sell it.”

¶ 10 Simmons concluded by noting that McCrady had indeed purchased the heroin from his

source in Chicago, and the group immediately began the return trip to St. Louis. On that

return trip, Ahrens stopped them for speeding.

¶ 11 Defendant did not testify or call any witnesses in his defense.

¶ 12 In his closing argument, the prosecutor focused his argument on possession–namely, how

possession can be both constructive and joint–positing, as follows:

“Now the evidence in this case is that *** McCrady was kind of the lead guy here.

He was the one directing traffic on this trip. There’s no question that *** McCrady

intended to deliver this when they got back to St. Louis.

Did [defendant] have a part in that? To tell you the truth, I don’t know. Imean I know

he was in the car, he intended to deliver it to St. Louis with the rest of them. That’s intent

to deliver. We don’t have to show you that he had someone in mind in St. Louis – hey,

I’m going to go take this to Bob. This is Bob’s heroin. But when he was in the car on that

trip, absolutely. He knew exactly where it was going, and he intended to deliver that with

the other three to St. Louis from Chicago.”

¶ 13 During its deliberations, the jury sent a note to the trial court, stating as follows:

“We are 10-2 guilty with Count 1. The question in dispute is the definition of ‘intent

to deliver.’ Help us with information to explain what constitutes intent [and] what is

meant by ‘deliver.’ ”

Following a hearing on the jury question, the court further instructed the jury on intent to

deliver, as follows:

“A person intends to accomplish a result or engage in conduct when his conscious

objective or purpose is to accomplish that result or engage in that conduct.

The word ‘deliver’ means to transfer possession or to attempt to transfer possession.

And delivery may *** occur with or without the transfer or exchange or money, or with

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or without the transfer or exchange of other consideration.”

¶ 14 The jury was not instructed at any point, nor did the State ever specifically argue, that

defendant was guilty based on an accountability theory. However, the jury did receive an

instruction on the lesser-included offenses of (1) unlawful possession of a controlled

substance (more than 100 grams but less than 400 grams of a substance containing heroin)

and (2) unlawful possession of a controlled substance (more than 15 grams but less than 100

grams of a substance containing heroin).

¶ 15 Shortly thereafter, the jury convicted defendant of unlawful possession with intent to

deliver a controlled substance (more than 100 grams but less than 400 grams of a substance

containing heroin) and (2) unlawful possession of a controlled substance (more than 15

grams but less than 100 grams of a substance containing heroin). Following an August 2011

sentencing hearing, the trial court sentenced defendant to 10 years in prison on count I,

unlawful possession (more than 100 grams but less than 400 grams of a substance containing

heroin).

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt.

Specifically, defendant contends that the State’s evidence was insufficient to prove him

guilty of possession with intent to deliver the heroin because the State failed to show that he

possessed the heroin, constructivelyor otherwise, and that he intended to deliver it. The State

responds that allowing all reasonable inferences in favor of the prosecution, it sufficiently

proved that defendant jointly and constructively possessed the heroin with the intent to

deliver it when the group returned to St. Louis. For the reasons that follow, we reverse

defendant’s conviction and remand for a new sentencing hearing.

¶ 19 A. The Standard of Review

¶ 20 When reviewing the sufficiency of the evidence, we view the evidence in the light most

favorable to the prosecution to decide whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. People v. Price, 2011 IL App

(4th) 100311, ¶ 16, 958 N.E.2d 341. In so doing, we are mindful that we must draw all

reasonable inferences from the record in favor of the prosecution. Id. In short, we will not

overturn a criminal conviction “ ‘unless the evidence is so improbable or unsatisfactory that

it creates a reasonable doubt of the defendant’s guilt.’ ” Id. (quoting People v. Givens, 237

Ill. 2d 311, 334, 934 N.E.2d 470, 484 (2010)). Nevertheless, the State must prove each

element of the crimes charged beyond a reasonable doubt. People v. Tilley, 2011 IL App

(4th) 100105, ¶ 13, 958 N.E.2d 1123.

¶ 21 B. The Offenses in This Case

¶ 22 In this case, the juryconvicted defendant of (1) unlawful possession with intent to deliver

a controlled substance (more than 100 grams but less than 400 grams of a substance

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containing heroin) (720 ILCS 570/401(a)(1)(B) (West 2008)) and (2) unlawful possession

of a controlled substance (more than 15 grams but less than 100 grams of a substance

containing heroin) (720 ILCS 570/401(a)(1)(A) (West 2008)).

¶ 23 1. Possession of a Controlled Substance

¶ 24 In People v. Scott, 2012 IL App (4th) 100304, ¶ 20, 966 N.E.2d 340, this court concluded

that sufficient evidence existed to support a finding that the defendant had constructive

possession of methamphetamine. In so concluding, we noted that “[a] reasonable juror could

have inferred that defendant exhibited an intent and opportunity to continue exercising

dominion over the methamphetamine by concealing it and attempting to destroy related

paraphernalia and trace evidence before he answered the door.” Id. In Scott, we outlined the

standard for proving possession in a case involving controlled substances, as follows:

“In drug-related cases in general, the element of possession requires ‘[the] defendant’s

knowledge of the presence of the narcotics and his immediate and exclusive control over

them.’ People v. Morrison, 178 Ill. App. 3d 76, 90, 532 N.E.2d 1077, 1086 (1988).

‘Possession can be actual or constructive.’ Id. Actual possession exists where the

defendant exhibits ‘some form of dominion over the unlawful substance, such as trying

to conceal it or throw it away.’ Id. Constructive possession is shown where the defendant

exercises ‘no actual personal present dominion over the narcotics, but there is an intent

and a capability to maintain control *** over them.’ Id. For example, ‘[w]here narcotics

are found on the premises rather than on a defendant, constructive possession may be

inferred from facts showing that he once had physical control with intent to exercise

control in his own behalf, he has not abandoned the drugs and no other person has

obtained possession.’ People v. McLaurin, 331 Ill. App. 3d 498, 502, 772 N.E.2d 296,

300 (2002). ‘[E]vidence establishing constructive possession is often wholly

circumstantial.’ (Internal quotation marks omitted.) People v. Minniweather, 301 Ill.

App. 3d 574, 580, 703 N.E.2d 912, 916 (1998).” Scott, 2012 IL App (4th) 100304, ¶ 19,

966 N.E.2d 340.

¶ 25 2. Possession of Heroin in This Case

¶ 26 Here, the State presented sufficient evidence that defendant had constructive possession

of the heroin as a principal, in that he exercised dominion over the heroin by (1) traveling to

Chicago, knowing that the trip was for the purpose of purchasing heroin, (2) actually

possessing a small amount of the heroin when he was using it, and (3) acting to conceal the

heroin by ordering Simmons to hold it because he believed that the police were less likely

to search a woman. This does not end our inquiry however, given that the jury convicted

defendant of possession with intent to deliver. Accordingly, we turn our analysis to whether

the State presented sufficient evidence that defendant possessed the heroin with intent to

deliver.

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¶ 27 3. Intent To Deliver

¶ 28 Initially, we note that direct evidence of the intent to deliver a controlled substance is

rare; thus, intent must usually be proved by circumstantial evidence. People v. Bond, 405 Ill.

App. 3d 499, 512, 942 N.E.2d 585, 596 (2010). Therefore, we examine the nature and

quantity of the circumstantial evidence presented in support of the inference of intent to

deliver. People v. Robinson, 167 Ill. 2d 397, 408, 657 N.E.2d 1020, 1026 (1995); see People

v. Clark, 349 Ill. App. 3d 701, 704, 812 N.E.2d 584, 587 (2004) (noting that circumstantial

evidence of intent to deliver “must be made on a case-by-case basis pursuant to a careful

review of the circumstances surrounding defendant’s arrest”). Generally, we look to a variety

of factors as indicative of intent to deliver, including, among other things, (1) whether the

quantity is too large to be viewed as being solely for personal use, (2) the purity of the drug

confiscated, (3) possession of weapons, (4) possession of large amounts of cash, (5)

possession of police scanners, beepers, or cellular telephones, (6) possession of drug

paraphernalia, and (7) the manner in which the substance is packaged. People v. Rivera, 293

Ill. App. 3d 574, 576, 688 N.E.2d 752, 753 (1997) (citing Robinson, 167 Ill. 2d at 408, 657

N.E.2d at 1026-27). However, given the numerous types of controlled substances and the

infinite number of potential scenarios, no “hard and fast” rule exists when determining

whether the facts of a case support a finding of intent to deliver. Robinson, 167 Ill. 2d at 414,

657 N.E.2d at 1030.

¶ 29 4. Intent To Deliver in This Case

¶ 30 Here, the evidence presented clearly showed that McCrady possessed the heroin with

intent to deliver. Indeed, Simmons testified that the entire trip was McCrady’s idea, that he

exercised significant control over the heroin, and that he planned to sell the heroin when he

returned to St. Louis. It appears from the transcript of proceedings that the State’s theory of

the case was that defendant either (1) shared McCrady’s intent in that regard or (2), as the

prosecutor argued in closing, that defendant “intended to deliver [the heroin] *** to St. Louis

from Chicago.” We address each theory in turn.

¶ 31 First, the State’s primary theory of the case appears to be that defendant shared

McCrady’s intent to deliver. The State’s evidence, however, does not support that theory.

Viewed in the light most favorable to the State, drawing all reasonable inferences from the

record in favor of the prosecution, the State’s evidence showed that (1) defendant agreed to

drive McCrady and Simmons to Chicago, knowing that McCrady needed him to drive him

there to purchase heroin, and (2) defendant exerted control over some of that heroin–indeed,

actually possessing it when he was using some of it for personal use. However, the State’s

key witness, Simmons, also testified that when they returned to St. Louis, McCrady was

going to take the heroin and sell it. That evidence went totally uncontradicted.

¶ 32 In asserting on appeal that by drawing all reasonable inferences from this evidence to

conclude that defendant intended to deliver the heroin in this case, the State is essentially

asking this court to imputeMcCrady’s intent–that is, his mental state–to defendant. However,

intent to deliver as a mental state can be imputed only where the State’s theory of the case

is one of accountability. People v. McCoy, 337 Ill. App. 3d 518, 524, 786 N.E.2d 1052, 1057

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(2003) (“because an accomplice is legally accountable for the conduct of the person he aids,

the mental state of the person he aids may, in essence, be imputed to a defendant convicted

under an accountability theory”). The State did not pursue that theory at trial, the jury was

not instructed on that theory, and for this court to uphold his conviction on that theory now

on appeal would deprive defendant of his due process right to argue in opposition to that

theory. See People v. Millsap, 189 Ill. 2d 155, 166, 724 N.E.2d 942, 948 (2000) (holding that

the defendant was deprived of his due process right to make an argument in opposition to an

accountability theory where the trial judge instructed the jury on accountability in response

to a jury question after the jury had begun deliberations).

¶ 33 The State’s apparent second theory, that defendant possessed the heroin with intent to

deliver because he intended to “deliverit” from Chicago to St. Louis, fails for much the same

reason. “Deliver” in this context means more than simply transporting a controlled substance

from one place to another. At the very least, it requires an attempt to transfer possession. See

720 ILCS 570/102(h) (West 2008) (“ ‘Deliver’ or ‘delivery’ means the actual, constructive

or attempted transfer of possession of a controlled substance, with or without consideration,

whether or not there is an agency relationship.”). Under the State’s apparent second theory,

“transfer” from one place to another is sufficient. It is not.

¶ 34 More likely, what the prosecutor was alluding to in closing was that defendant could be

accountable for McCrady’s intent to deliver the heroin when he returned to St. Louis, as the

following statements from the prosecutor–which we have previously quoted–demonstrate:

“Now the evidence in this case is that *** McCrady was kind of the lead guy here. He

was the one directing traffic on this trip. There’s no question that *** McCrady intended

to deliver this when they got back to St. Louis.

Did [defendant] have a part in that? To tell you the truth, I don’t know. I mean I know

he was in the car, he intended to deliver it to St. Louis with the rest of them. That’s intent

to deliver. We don’t have to show you that he had someone in mind in St. Louis–[‘]hey,

I’m going to go take this to Bob. This is Bob’s heroin[’]. But when he was in the car on

that trip, absolutely. He knew exactly where it was going and he intended to deliver that

with the other three to St. Louis from Chicago.”

Unfortunately, the State did not argue an accountability theory to the jury or ask to have the

jury so instructed. As a result, for the reasons the supreme court explained in Millsap–which

we have previously outlined–we cannot affirm defendant’s conviction on that basis.

¶ 35 In closing, we note that we have advisedly characterized the State’s failure to pursue an

accountability theory as unfortunate. We have done so because the evidence presented in this

case would have unequivocally supported a conviction based upon that theory. That is,

defendant, both before and during McCrady’s commission of the offense of unlawful

possession of a controlled substance with intent to deliver, and with intent to promote or

facilitate McCrady’s commission of that offense, aided and abetted McCradyin the planning

or commission of that offense. See 720 ILCS 5/5-2(c) (West 2010).

¶ 36 Although the evidence in this case is insufficient to prove defendant guilty of possession

with intent to deliver, we find it sufficient to support convictions on the lesser-included

offenses of (1) unlawful possession of a controlled substance (more than 100 grams but less

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than 400 grams of a substance containing heroin) and (2) unlawful possession of a controlled

substance (more than 15 grams but less than 100 grams of a substance containing heroin).

See People v. Nixon, 278 Ill. App. 3d 453, 459, 663 N.E.2d 66, 70 (1996). Accordingly, we

reduce defendant’s convictions, pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan.

1, 1967), to (1) unlawful possession of a controlled substance (more than 100 grams but less

than 400 grams of a substance containing heroin) and (2) unlawful possession of a controlled

substance (more than 15 grams but less than 100 grams of a substance containing heroin)

(720 ILCS 570/402(a)(1)(A), (B) (West 2008)). Consequently, we vacate defendant’s

sentence and remand the cause to the trial court for a new sentencing hearing.

¶ 37 III. CONCLUSION

¶ 38 Forthe reasons stated, we reduce defendant’s convictions to the lesser-included offenses

of (1) unlawful possession of a controlled substance (more than 100 grams but less than 400

grams of a substance containing heroin) and (2) unlawful possession of a controlled

substance (more than 15 grams but less than 100 grams of a substance containing heroin).

Accordingly, we affirm in part as modified, vacate the sentence imposed, and remand to the

trial court for a new sentencing hearing. Because the State successfully defended a portion

of the criminal judgment, we grant the State its $50 statutory assessment against defendant

as costs of this appeal. See People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333

(1985) (citing People v. Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194, 199 (1978)).

¶ 39 Affirmed in part as modified and vacated in part; cause remanded with directions.

¶ 40 JUSTICE APPLETON, concurring in part and dissenting in part.

¶ 41 Irespectfullydissent in part and would onlysustain defendant’s conviction for possession

of a controlled substance of more than 15 grams but less than 100 grams of a substance

containing heroin. I would do so because I believe defendant did not exert possession of the

greater amount by telling Simmons to keep the heroin then in her possession given to her by

McCrady.

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