2016 IL App (1st ) 15 1913 No. 1-15-1913 Fifth Division August 26, 2016

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS , ) ) Plaintiff

- Appellee , ) ) v. ) ) TORRAY WILKERSON, ) ) Defendant -Appellant. ) ) ) Appeal from the Circuit Court of Cook County. No. 14 CR 09402 The Honorable Vincent M. Gaughan , Judge Presiding.

______________________________________________________________________________ JUSTICE GORDON delivered the jud gment of the court, with opinion. Presiding Justice Reyes and Justice Burke concu rred in the judgment and opinion.

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 minim um sentence of 15 years for possession of a controlled substance with intent to deliver, and 7 years for b eing an armed habitual criminal with the unlawful use of a weapon count to merge into that count. The court ordered both sentences to run concurrent ly

.No. 1-15-1913

2 ¶ 2 On this appeal, defendant claims (1) that he was denied effective assistance of trial counsel where trial counsel (a) had a co nflict 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 S tate 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 S tate
p res ented more evidence of guilt against codefendant, who was found not guilty, than against defendan t, 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 th e police officer ’ s testimony concerning his view of the gun disposal was incredible. For the following

re asons, we affirm defendant ’s convictions and sentence. ¶ 3 BACKGROUND ¶ 4 Defendant Torray Wilkerson was indicted on six felony counts including armed vio lence, armed habitual criminal , a Class X possession of a controlled substance w ith the intent to deliver , two counts of unlawful u se 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 t rial. ¶ 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 w e ll as drugs that were recovered in the storefront. AtNo. 1-15-1913

3 trial, the State called police o fficers Kyle Mingari, Bill Murphy, and Mark Gutkowski

. Defendant did not testify. The parties stipulated to the findings of forensic chemist Lenetta
Watson. After trial, t he 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 c rime, narcotics division. H e has been a Chicago pol ice officer for eight years; he had been assigned to his unit for 21⁄2 years; and he had executed sea rch warrants in the past and had received t raining for firearms , both with the Chicago police department ( CPD ) and the M arine Corps. ¶ 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 A venue in Chicago. The three

- story building contained three apartments in the rear and a n empty storefront with two apartments above it

. The search warrant was confined to the first

- floor rear apartment. ¶ 10 Office r 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 Offi c er 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 heNo. 1-15-1913

4 believed to be a gun slide being racked 1 and simultaneously heard “ a front door opening to the front. ” At that time O fficer Mi ngari 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 climbin g over the gate and running out from the front. At that point Officer
M ingari 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 identific ation 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 bui lding 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 flo or. Officer Mingari made an
in

- cou rt identification of defendant, who he observed running up the stairs. He pursued defendant through the gangway and into the center hallway. At t h at time , he heard a door slam on the second floor, but he waite d for assista nce until team member , Officer Mat t hews , 2
arrived. ¶ 12 Officer Mingari testified that , after Officer Mat t hews 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

1 A “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.be retta.com/how- to

- rack -yourhandgun- slide

- like -a-boss. 2 Neither Officer Matthews’ nor Sergeant Steck’s first names are available in the record, as neither testified in open court.No. 1-15-1913

5 discard what he believed was a firearm onto an adjacent roof

. During this time , Officer Mingar i remained at the door until d efendant opened it and allowed o fficer s 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 t he roof. ¶ 13 Officer Mingari testified that he went back down to the first floor and observed t he 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 do gs 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 search , Officer Mingari observed packages o f 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 cut ting 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 photogra phs that were admitted into evi dence: (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 photog raph of a blue plastic bin that contains mixers; (5) a photograph of the bundle d packages of drugsNo. 1-15-1913

6 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 th e 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 de fendant 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 c odefendant 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 , whi ch he and his team executed at West Ogden Avenue on May 1, 2014. In the portion of the search warran t 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 -po und, 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 gla ss door is visible in People ’ s e xhibit 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 beingNo. 1-15-1913

7 pr opped 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

. Offincer 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 Chic ago 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. Of ficer Murphy testified that he conducted previo us 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. A fter 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, heNo. 1-15-1913

8 heard a screen opening from ab ove and observed an individual lean out of the window and toss what he believed to b e a handgun on the roof of an adjacent building that was approximately six feet above the the window he observed defendant leaning from . Officer Murphy made an in

- court ide ntification of de fendant as the individual he observed throw the gun. A fter 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

te am members via radio , and Officer Murph y 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 o ffic ers Mingari and Matthews had detained, who m he identified as defendant. Officer Murphy then returned to his previous location to stand with Officer Scharr and wait for the Chicago f ire d epartment 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 dep i cting an overhead view of the

two buildings on West Ogden Avenue. Officer Murphy placed a n “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 vie w of where he had been standing. After he recovered the handgun, he gave it to Officer Gutkowski.No. 1-15-1913

9 ¶ 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 apartment of the building on West Ogden Avenue

. After the team finished exe cuting 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 purs u ed 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 h is person. Codefendant had $3560 in United
States c urrency 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 testi fied that Officer Murphy gave him the hand gun 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 Gut kowski testifiedNo. 1-15-1913

10 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 t hat , if Lenetta Watson, a forens ic chemist at the Illinois State Police crime lab, was called to testify, she would testify th at 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; t hat she received Inventory N o. 13162571, which she opened and found to contain a powdery substance that tested positive fo r the presence of heroin and weighed 89.3 grams ; and th at 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 employe d by the Illinois State Police crime l ab and is qualified to testify as an expert in the area of forensic chemistry; that all the equipm ent used was tested, calibrated, and functioning properly when th ose items were tested; and that she performed tests commonly accepted in the area of forensic c hemistry 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

.No. 1-15-1913

11 ¶ 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 wo uld run. So his testimony was that he didn ’ t live there. That was admitted. And, again, mere presence

— even negative —negative— mere presence right 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 gra ms is the threshold weight that results in a 15

- year minimum sentence. 720 I LC S 570/401(a)(1)(D) (West 201 2). Defendant was sentenced to 15 years with the Illinois Department of Corrections (IDOC) for possession of more th an 900 grams of heroin withNo. 1-15-1913

12 intent to deliver and sentenced to 7 years for b eing an armed habitual crimin al. 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 concurrent ly

. 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 reconside ration of the findings of guilt. In his motion, defenda nt claimed (1) that me re presence in a place from which narcotics are recovered is not sufficient to establish posse ssion 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

. De fendant’ s trial counsel testified at the hearing that he had been an

attorne y 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 co defendant 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 ja il and that the rest o f the ir conversations occurred in the lockup. Defendant ’ s posttrial counsel asked why he did not utilize a defe nse arguing that codefendant w as the person in possession of the drugs , and defendant’ s trial counsel responded that he thought defendant and codefe ndant had very similar defenses and that he and defendant both agreed on a defenseNo. 1-15-1913

13 strategy to question Officer Mingari ’ s vantage point because the officer could not have observed what he said he had observed. ¶ 38 After listening t o 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 ther e was no evidence to support defendant ’s claim of ineffective assistance of counsel. The tri al court denied defendant ’s posttrial motion for a new trial and his supplemental motion for a new trial, as wel l 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 b e 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.No. 1-15-1913

14 ¶ 41 I. Ineffective Assistance of Counsel ¶ 42 First, defendant claims that he received ineffective assistance of c ounsel where his

atto rney 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 sent encing . 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, 5 2 5 (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 defendan t 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 undermine confidence in the outcome

— or put another way, thatNo. 1-15-1913

15 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 determ ine 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 s e conflict of interest arises when certain facts about a defense attorney ’ s status create a disabling conflict , which is grounds for

aut omatic 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)).No. 1-15-1913

16 ¶ 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 re presentation, but it did not have an adverse impact on tr ial counsel ’ s performance. ¶ 50 It was not unreasonable for defendant ’ s trial counsel to argue that defendant was merely present instead of assert ing that codefendant was responsible for the narcotics because it was sound trial strategy to rely on discreditin g 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 N o. 8 , trial counsel knew or should have known that the powder from the bathroom was co mmingled 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 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.No. 1-15-1913

17 ¶ 53 “ When a defendant is charged with possession of a specific amount of an illegal dr ug 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, 4 28- 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 com mingled 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 com m ingled 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 pla ced all t he evidence in a Rubbermaid bin and made no statement about commingling substances. Thus, the appellate record does not supportNo. 1-15-1913

18 defendant’ s claim that exhibit No. 8 depicted three distinct piles of powder that the officer must have commingled. ¶ 55 De fendant 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 tha t 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 state d 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 a nd 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 Off icer Murphy and did not act un reasonably or prejudice defendant.No. 1-15-1913

19 ¶ 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 did not prejudice him. Therefore, it is unnecessa ry to determine whether failing to introduce defendant ’ s alleged employment status as a mitigating factor fell below the objective standard of reasonableness. ¶ 60 I I. 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

nar cotics 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 ev idence 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 , 23 2 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 o r the weight to be given to eachNo. 1-15-1913

20 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 201 2) (“ 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 mai ntain 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 “I ntent 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)

. F actors 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

con sumption, (2) the degree of the cocaine ’s purity, (3) the possession of any weapons, (4) possession and 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)). ¶ 67No. 1-15-1913

21 ¶ 68 B. Evidence Presented Against Defendant ¶ 69 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 apprehende d with over $3000 in cash; defendant attempted to hide a g un 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. ¶ 70 Defendant argues that People ’ s exhibit No. 6 discredit s 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. ¶ 71 The storefront was vacant , and defendant had no reason to be present there unless he was in possession of the drug s; 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, i s sufficient to establish guilt of possession with intent to deliver beyond a reasonable doubt. ¶ 72 III

. Inconsistent Verdicts ¶ 73 D efendant 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 StateNo. 1-15-1913

22 presented more evidence against codefendant , who was found not guilty , than against defendant, who was found guilty. ¶ 74 A. Standard of Review ¶ 75 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. Gonzale s , 67 Ill. App. 3d 215, 22 2 (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). ¶ 76 B. Evidence Presented ¶ 77 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. ¶ 78 However, defendant was in possession of a handgun , and Officer Mingari testified that he heard the slide being racked from inside the s torefront

. Defendant then ran up to his apartment to dispose of the handgun

. Defendant also admitted that he resided in the apartme nt upstairs from the storefront. Living above the storefront positioned defendant to prevent theft of the drugs or to facilit ate sales, fur ther supporting the inference that he had control over the storefront. ¶ 79 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 d rugs, we do not find that the trial court rendered inconsistent verdicts.No. 1-15-1913

23 ¶ 80 IV. Convictions for Counts II and IV ¶ 81 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 b y a felon. ¶ 82 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 t he window open, looked up to observe the defendant throw the gun, and then immediately went to the apartment to identify him after the o ther 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 ’sNo. 1-15-1913

24 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. ¶ 83 CONCLUSION ¶ 84 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, w e affirm defendant ’s convictions for armed habitual criminal and unlawful use of a weapon by a felon , because the trial court found the o fficer ’ s eyewitness testimony credible, and we will not substitute our judgment for that of the trier of fact with regard to the credibility of the witness. ¶ 85 Affirmed.