People v. Rivera

THIRD DIVISION
November 26, 1997


No. 1-95-0845)
No. 1-95-1685) consolidated

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

JOSE RIVERA,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Daniel J. Kelly,
Judge Presiding.


JUSTICE LEAVITT delivered the opinion of the court:
Defendant Jose Rivera was charged with possession of a
controlled substance with intent to deliver in violation of
section 401 of the Illinois Controlled Substances Act (720 ILCS
570/401(a)(2)(A) (West 1992)). Following a bench trial,
defendant was convicted and sentenced to eight years'
imprisonment, to run consecutively with another conviction. In
these consolidated cases, defendant appeals from his conviction
and sentence and the denial of his petition for post-conviction
relief.
On appeal, the parties agree as to the relevant facts in
this case. Chicago police officer Dennis O'Shea was working
narcotics surveillance on July 31, 1993. A tip had been received
from a confidential informant, who related that a drug
transaction was to take place in the 400 block of West Dickens in
Chicago. Upon arriving at that location, O'Shea observed
defendant talking with another individual, Reynaldo Moctezuma.
Moctezuma handed defendant a small plastic bag. O'Shea did not
observe money change hands.
When O'Shea approached, defendant threw the bag he had been
given into the gutter. O'Shea recovered a golf ball-sized
object, which he suspected contained cocaine. It was stipulated
at trial that the bag was found to contain 26.8 grams (slightly
less than an ounce) of cocaine. O'Shea estimated an ounce of
cocaine sold for $850 to $1,100 on the street. (We note that
both parties, in their appellate briefs, refer to the recovered
cocaine as having a total weight of 28.6 grams. However, the
stipulation at trial was that the weight of the cocaine was 26.8
grams. We assume the stipulation to be accurate, and we will
refer to the quantity of recovered cocaine as 26.8 grams for
purposes of this appeal.)
The trial judge found defendant guilty of possession with
intent to distribute, though he noted the evidence of intent to
deliver was "not so clear." Addressing the fact that no money
had been exchanged between defendant and Moctezuma, the trial
judge reasoned that "people who are in the higher echelons of
this type of business don't require their mules or their sellers
to pay them in advance for what they take out to sell." He
considered the amount of cocaine involved (slightly less than an
ounce) as proof that defendant did not possess the cocaine for
personal consumption, although he remarked that it has been held
"in some cases that the mere possession of an amount such as that
[in this case] is not sufficient to show intent to deliver."
On appeal, defendant does not challenge the trial court's
finding that he possessed the cocaine recovered by O'Shea.
Rather, he argues the State failed to introduce evidence
sufficient to support a finding that he intended to distribute
the cocaine. We agree.
In reviewing defendant's conviction, we must ask whether,
after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have concluded
beyond a reasonable doubt that defendant intended to deliver the
cocaine given to him by Moctezuma. See People v. Robinson, 167 Ill. 2d 397, 407, 657 N.E.2d 1020 (1995); People v. Nixon, 278
Ill. App. 3d 453, 457, 663 N.E.2d 66 (1996). Since direct
evidence of intent to deliver is rare, such intent is usually
proved by circumstantial evidence. Robinson, 167 Ill. 2d at 408;
People v. Jones, 286 Ill. App. 3d 777, 784, 676 N.E.2d 1335
(1997); People v. Clemons, 277 Ill. App. 3d 911, 923, 661 N.E.2d 476 (1996). A variety of factors are indicative of intent to
deliver, such as: (1) whether the quantity of the controlled
substance possessed is too large to be viewed as being for
personal consumption; (2) the high 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. Robinson, 167 Ill. 2d at 408; Nixon, 278 Ill. App. 3d at 457; People v.
Beverly, 278 Ill. App. 3d 794, 799, 663 N.E.2d 1061 (1996).
None of the above indicia of intent to deliver are present
here. No evidence was introduced that the cocaine possessed by
defendant was of high purity and therefore likely to be "cut" or
diluted for sale on the street (in fact, there was no evidence
whatsoever as to the purity of the cocaine). No weapons were
found in defendant's possession. No amounts of cash were
recovered from defendant and inventoried. He was not found in
possession of a police scanner, beeper, or cellular telephone,
and no paraphernalia associated with the selling of cocaine was
recovered. The packaging of the cocaine in this case (one
package as opposed to many) does not evidence an intent to
deliver.
As evidence of intent to deliver, the State points out "the
trier of fact could consider that police received word of a
potential drug exchange occurring at a particular time and place,
police witnessed a drug exchange, as expected, and no money was
exchanged at the same time." We fail to see how the transaction
observed by police in the present case supports a finding that
defendant possessed the cocaine with the intent to distribute it.
Defendant was observed receiving cocaine, not selling it. The
fact that defendant was observed being handed cocaine supports
only a finding of simple possession, given the absence of other
indicia of an intent to distribute. The trial court's reasoning
that defendant was probably a "mule" who was being "fronted" the
cocaine (which would explain why no cash changed hands here) is
simply too speculative to justify defendant's conviction of
possession with intent to deliver.
The State urges that we uphold the trial court's ruling in
light of our supreme court's decision in People v. Robinson, 167 Ill. 2d 397, 657 N.E.2d 1020 (1995). The Robinson court found
there was sufficient evidence to justify the jury's finding that
the defendant possessed 2.8 grams of cocaine and 2.2 grams of
phencyclidine (PCP) with the intent to deliver. Robinson, 167 Ill. 2d at 414. Yet Robinson is easily distinguished from the
present case. A number of the factors discussed earlier as being
indicative of intent to deliver were present in Robinson. Forty
individual packets, containing two different types of controlled
substances, were recovered in Robinson. Moreover, police
responding to several anonymous complaints of drug sales
occurring at defendant's apartment building observed heavy
traffic moving in and out of defendant's building. Robinson, 167 Ill. 2d at 413-14.
The only factor which arguably supports an inference of
intent to deliver in the present case is the quantity of cocaine
(26.8 grams) defendant possessed. As the State correctly points
out, our supreme court has recognized that quantity alone may,
under certain circumstances, constitute sufficient circumstantial
evidence of intent to deliver. Robinson, 167 Ill. 2d at 410-11.
However, quantity alone will suffice "only where the amount of
controlled substance could not reasonably be viewed as designed
for personal consumption," and, as the Robinson majority further
noted, "[a]s the quantity of controlled substance in the
defendant's possession decreases, the need for additional
circumstantial evidence of intent to deliver to support a
conviction increases." Robinson, 167 Ill. 2d at 411, 413.
The trial judge held that the amount of cocaine possessed by
defendant in this case was sufficient to support a conviction of
possession with an intent to deliver, despite the lack of any
other circumstantial evidence of such intent. We cannot agree.
In United States v. Latham, 874 F.2d 852 (1st. Cir. 1989), the
defendant was charged with possession of an ounce of cocaine with
the intent to distribute. See 21 U.S.C.  841(a)(1) (West 1992)
("it shall be unlawful for any person knowingly or intentionally
*** to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance ***"). One of the government's own witnesses in Latham
testified that a heavy cocaine user could go through an ounce of
cocaine in one and a half to two days. Latham, 874 F.2d at 863.
In light of this testimony, as well as the fact that the
defendant and another individual were found to have jointly
possessed the ounce of cocaine, the Latham court reversed the
defendant's conviction for possession with intent to distribute.
In so doing, the court held that "[b]oth the record and the case
law counsel that an inference of intent to distribute is not
warranted from the possession of one ounce of cocaine." Latham,
874 F.2d at 863. See also United States v. Franklin, 728 F.2d 994, 1000 (8th Cir. 1984) (reducing conviction for possession of
35 grams of 42% pure cocaine with intent to distribute to simple
possession where cocaine was not packaged in a manner consistent
with distribution and no distribution paraphernalia, amounts of
cash, weapons, or other indicia of narcotics distribution were
recovered, noting that "[a] search of authority fails to reveal a
single case in which [35 grams of cocaine], without more,
constitutes sufficient evidence from which intent to distribute
can be inferred").
We agree with the reasoning of the Latham court.
Admittedly, defendant did not offer any evidence in the present
case supporting the view that such a quantity of cocaine was
consistent with personal consumption. Nevertheless, it was the
State's burden to produce sufficient evidence of intent to
deliver. The State offered no expert testimony in the present
case that the amount of cocaine possessed by defendant was
inconsistent with personal consumption. But cf. Nixon, 278 Ill.
App. 3d at 458-59 (reducing defendant's conviction for possession
of 6.6 grams of cocaine with intent to deliver to simple
possession, even though three police officers testified before
the jury that the amount of cocaine defendant possessed was more
than an individual would generally possess for personal use). In
the absence of further circumstantial proof of an intent to
deliver, we believe possession of an ounce of cocaine alone does
not suffice. See generally People v. Campbell, 115 Mich. App.
369, 374-76, 320 N.W.2d 381, 383-84 (1982) (discussing Michigan
law, M.C.L.  333.7403, which essentially creates a conclusive
presumption of intent to deliver when an individual is found to
possess 50 grams or more of cocaine, by equating the sentences of
possession and possession with intent to deliver when such levels
of cocaine are involved); Annotation, Sufficiency of Evidence
That Possessor of Cocaine Had Intent to Distribute It, So As To
Violate 21 USCS  841(a)(1), 80 A.L.R. Fed 397, 403-10 & 20-23
(1986 & 1988 Supp.) (collecting cases in which the quantity of
cocaine alone was sufficient to establish intent to distribute
under 21 U.S.C.  841(a)(1), with the amount of recovered cocaine
in these cases typically being in the kilogram range); Siegel,
Cocaine Smoking, 14 J. Psychoactive Drugs 271, 315-16 (1982)
(relating that individual consumption of cocaine when "free-
basing" may range from one gram to 30 grams per 24-hour period
"although some users have reported smoking up to 150 grams in 72
hours").
The State has not directed us to any case in Illinois where
possession with intent to deliver has been found based solely on
possession of an ounce of cocaine. The only two cases cited by
the supreme court in Robinson regarding the amount of cocaine
which exceeds that which might reasonably be viewed as for
personal consumption, People v. Romero, 189 Ill. App. 3d 749, 546 N.E.2d 7 (1989) and People v. Munoz, 103 Ill. App. 3d 1080, 432 N.E.2d 370 (1982), do not support a finding of intent to deliver
in the instant case. The defendant in Munoz was found in
possession of 250.1 grams of cocaine, far in excess of the 26.8
grams at issue here. Munoz, 103 Ill. App. 3d at 1081. While the
defendant in Romero possessed an amount of cocaine somewhat
closer to the amount in this case (36.9 grams), the cocaine was
packaged in four separate bags. Moreover, other indicia of an
intent to distribute were present in Romero: a large amount of
cash ($2,900), a grinder, a scale, and a bottle of Inositol (an
agent used to "cut" cocaine). Romero, 189 Ill. App. 3d at 756.
In other Illinois cases involving possession of amounts of
cocaine in the range possessed by defendant here, other factors
indicative of intent to deliver were present. See, e.g., People
v. Stone, 244 Ill. App. 3d 881, 614 N.E.2d 293 (1993) (26.2 grams
of cocaine recovered, as well as $10,420 in cash, an automatic
assault rifle fully loaded with thirty rounds of ammunition, an
additional 18 rounds, two clips containing nine rounds each and a
box of "32 special" ammunition); People v. Robinson, 233 Ill.
App. 3d 278, 598 N.E.2d 1348 (1992) (28.2 grams of cocaine
recovered, along with a scale, a large amount of money, guns,
ammunition, pagers and drug records); People v. Tovar, 169 Ill.
App. 3d 986, 523 N.E.2d 1178 (1988) (31.9 grams of cocaine
recovered, but defendant was also found to possess heroin,
marijuana, a scale, a large amount of cash, and a .38-caliber
handgun); People v. Schaefer, 133 Ill. App. 3d 697, 479 N.E.2d 428 (1985) (21.9 grams of cocaine recovered, as well as
marijuana, a battery-powered grinder, a scale, a starter pistol,
a sawed-off shotgun, a .45-caliber pistol with a loaded clip and
an extra .22-caliber barrel with a loaded clip, and two other
shotguns). But cf. People v. Cameron, 189 Ill. App. 3d 998, 546 N.E.2d 259 (1989) (28 grams of cocaine, with only other evidence
of intent being a State's witness' testimony that an average user
would not normally possess such a quantity of cocaine for
personal use). Moreover, in none of these cases did the court
conclude, as a matter of law, the amount of cocaine possessed
exceeded an amount which could reasonably be viewed as being
possessed for personal consumption. And, while some courts have
affirmed delivery convictions where considerably smaller amounts
of cocaine were involved, in each case other evidence of intent
was introduced. See, e.g., People v. Foules, 258 Ill. App. 3d
645, 630 N.E.2d 895 (1993) (18.86 grams of cocaine, but police
observed additional cocaine being thrown from car, two gram
scales, bottle of mannitol ("cutting" agent), large number of $5
bills, and gun also recovered); People v. Green, 256 Ill. App. 3d
496, 628 N.E.2d 586 (1993) (1.16 grams of cocaine, but packaged
in 18 separate packets and recovered with 26 packets of heroin);
People v. Greenleaf, 254 Ill. App. 3d 585, 627 N.E.2d 111 (1993)
(4.36 grams of cocaine, but evidence of multiple transactions
occurring in apartment where defendant was arrested); People v.
Bradford, 239 Ill. App. 3d 796, 607 N.E.2d 625 (1993) (1.3 grams
of crack cocaine, cellular telephone, programmable scanner,
packaging indicative of intent also found); People v. Pavone, 241
Ill. App. 3d 1001, 609 N.E.2d 906 (1993) (14.03 grams of cocaine,
packaged in 38 individual packets, found along with a sifter
instrument and a .357 revolver); People v. McDonald, 227 Ill.
App. 3d 92, 590 N.E.2d 1003 (1992) (10.6 grams of cocaine
recovered, along with four bags of cannabis, a grinder, a catch
basin, inositol, plastic bags, a portable scale, and
pharmaceutical seals, and defendant admitted to officers that he
had been purchasing cocaine for distribution); People v. Jones,
215 Ill. App. 3d 652, 575 N.E.2d 561 (1991) (14.7 grams of
cocaine contained in 50 individual packets, with expert testimony
that the cocaine was packaged for street sale; unlikely defendant
had traveled from Chicago to Peoria to purchase drugs for his own
consumption, and $1,000 in currency was recovered from
defendant); People v. Berry, 198 Ill. App. 3d 24, 555 N.E.2d 434
(1990) (3.9 grams of cocaine, expert testimony that defendant
likely engaged in selling of cocaine due to amount of cocaine,
lack of user paraphernalia, and $3,100 recovered from defendant);
People v. LeCour, 172 Ill. App. 3d 878, 527 N.E.2d 125 (1988)
(3.3 grams of cocaine recovered, but evidence of two transactions
in which defendant sold cocaine through the use of his beeper);
People v. Marshall, 165 Ill. App. 3d 968, 521 N.E.2d 538 (1988)
(13.88 grams of cocaine recovered, along with marijuana, plastic
bags, measuring spoons, a scale, a handgun, and $600 in cash).
In sum, the evidence in the present case was simply
insufficient to sustain a conviction for possession with intent
to deliver. Our legislature has explicitly stated its intention
to punish dealers of controlled substances more severely than
users of these substances. See 720 ILCS 570/100 (West 1992)
(stating "[i]t is not the intent of the General Assembly to treat
the unlawful user or occasional petty distributor of controlled
substances with the same severity as the large-scale, unlawful
purveyors and traffickers of controlled substances"). As a
result, the penalties for possession with intent to deliver are
significantly harsher than those for simple possession. Compare
720 ILCS 570/401(a)(2)(A) (West 1992) (making possession with
intent to deliver "15 grams or more but less than 100 grams of a
substance containing cocaine" a Class X felony punishable by "not
less than 6 years and not more than 30 years" imprisonment) and
730 ILCS 5/5-5-3(c)(2) (West 1992) (making possession with intent
to deliver over 5 grams of cocaine a Class 1 felony requiring a
minimum mandatory sentence of four years' imprisonment) with 720
ILCS 570/402(a) (West 1992) (making simple possession of "15
grams or more but less than 100 grams" of cocaine a probationable
Class 1 felony). Moreover, case law suggests cocaine consumption
varies markedly from individual to individual, at least according
to the various police and expert witnesses that testify about
average user consumption in these cases. Compare Latham, 874 F.2d at 863 (government's own witness testified that a heavy
cocaine user could go through an ounce of cocaine in one and a
half to two days) with Nixon, 278 Ill. App. 3d at 458-59 (where
three police officers testified that the amount of cocaine
defendant possessed-- 6.6 grams --was more than an individual
would generally possess for personal use). See generally 14 J.
Psychoactive Drugs at 316 (noting five patterns or levels of
cocaine use: experimental use, social-recreational use,
circumstantial-situational use, intensified use, and compulsive
use). In light of the foregoing considerations, trial courts
should be hesitant in concluding that an intent to deliver has
been proved in cases such as the present one, where the only
evidence relied upon in support of such a finding is the quantity
of cocaine recovered. Cf. Robinson, 167 Ill. 2d at 416-17
(Heiple, J., dissenting, joined by Bilandic, J.) (criticizing the
majority's finding that there was sufficient evidence of intent
to deliver); People v. Crenshaw, 202 Ill. App. 3d 432, 436, 559 N.E.2d 1051 (1990) (reducing the defendant's conviction to simple
possession where 11.2 grams of cocaine, divided into 22
individual packets, was recovered, due to a lack of sufficient
evidence of intent to deliver). The trial judge in the instant
case was justifiably concerned that the evidence of intent to
deliver was "not so clear" here.
Pursuant to our powers under Supreme Court Rule 615(b)(3)
(134 Ill.2d R. 615(b)(3)), we reduce defendant's conviction to
unlawful possession of 15 grams or more but less than 100 grams
of a substance containing cocaine (720 ILCS 570/402(a)(2)(A)
(West 1992)). Consequently, we vacate defendant's sentence and
remand the cause to the circuit court for a new sentencing
hearing.
Reversed and remanded.
COUSINS, J., and CAHILL, J., concur.