People v. COMAGE

truth of the Hearsay out-of-court statement offered for the C, In re Keith Ill. 880 N.E.2d 1157 matter asserted. (2007). case, to respondent objected

In this out-of-court statements examiner which both respondent polygraph made to the about However, and Junker these statements were of- Baker testified. asserted, is, respon- matter fered for the truth of the what examiner. The out-of-court state- polygraph dent’s answers were to the surrounding the were offered to show the circumstances ments to and to Junker. Because the respondent’s admissions Baker trial court did testimony question hearsay, was not we hold that the objections. the defendant’s overruling not abuse its discretion above, arguendo, the contested assuming, As we stated inadmissible, was testimony respondent prejudiced granted petition could State’s to admission. trial court have solely on release respondent’s conditional based revoke Baker to Junker. respondent’s admissions

CONCLUSION reasons, the Will judgment affirm the foregoing For the we revoke the petition circuit the State’s County granting release. respondent’s conditional

Affirmed. JJ., WRIGHT, concur.

CARTER ILLINOIS, Plaintiff-Appellee, v. DANNY OF THE PEOPLE OF THE STATE COMAGE, Defendant-Appellant. 4 — 08—0402 District No.

Fourth 17, 2009. filed Opinion November POPE, J., dissenting. Pelletier, Gary Peterson, Michael J. R. Morgan, and Colleen all of State

Appellate Office, Springfield, appellant. Defender’s of for (Patrick Ahola, Attorney, Jack State’s Delfino, of Decatur Robert J. Bider- man, Ambrose, and Attorneys Denise M. of Appellate all State’s Prosecutor’s Office, counsel), of People. for the JUSTICE opinion MYERSCOUGH delivered the court: In February 2008, jury a Danny convicted Comage, of (720 (West 4(a) 2006)). obstructing justice 2008, ILCS In May 5/31— the trial court years sentenced defendant to three in the Illinois (DOC). Department of Corrections appeals, arguing Defendant prove State failed to guilt beyond a reasonable doubt because his act of a crack did not amount to concealment evidence. affirm. We

I. BACKGROUND In 2007, March charged the State obstructing defendant with (720 4(a) (West justice ILCS 2006)), drug unlawful possession 5/31— (720 (West paraphernalia 2006)), ILCS resisting peace a 600/3.5 (720 (West 2006)). ILCS charges These resulted from 5/31—1 place events that part investigation gas took aof station charged theft. Defendant was not gas relation to the station theft. 2007, justice July jury obstructing In a convicted defendant of drug him resisting peace possession officer but found judgment a motion for paraphernalia. Defendant filed notwithstand- or, fact ing alternatively, partly the verdict for a new trial based having that one made reference to defendant State’s witnesses right during questioning. invoked his to remain silent 2007, motion a new September granted the trial court defendant’s for obstructing-justice resisting-a-peace-officer charges. trial on the charge. the resisting-a-peace-officer The State later dismissed jury February following At trial in the second 19, 2007, presented. night investigating On of March Decatur, began looking theft at station in Officer Chad Larner gas man, suspect, who had been described as clean-shaven black built, Officer Larner thinly wearing nice casual dress slacks. Larner was stopped defendant and asked for identification. While radio, over Officer Kath- checking defendant’s information jumping She defendant was leen Romer arrived on scene. noticed appeared Officer Romer testified defendant around and nervous. squad to urinate on the advised he needed to urinate and threatened Thereafter, ran down suddenly away from the officers car. him yards alley. approximately The two officers chased stopped. before defendant officers, the had an unob- chase, according they to

During the only a short distance behind view of defendant. While structed pocket, pull reach into his out two the officers saw him length, in them that five to six inches throw objects rod-like were six-foot-tall, alley. he ran down the wooden fence while over eye Officer Larner’s level. Neither officer just The fence was above threw the items. of the fence defendant saw over what section threw 10 to 15 feet from where he stopped approximately Defendant to use her Taser. after Officer Romer threatened the items in the pipe push and a rod Larner found crack Officer general The area where the the side the fence. lot on other parking along fence under and the landscape had rock and rod were found pipe in but snow. grass the area no three feet wide. Some was about two to his asphalt. According to lot concrete or parking The rest of the was ap- after the items in under 20 seconds testimony, Larner located two Officer Larner Although nighttime, it was defendant. prehending vacant. Larner found parking lot well-lit and testified the two had thrown area where defendant approximate items in the pocket. took from his items he (2000), 734 N.E.2d Ill. In re

Citing he ground that had a directed verdict on defendant moved for since concealed evidence the officers observed defendant toss the the fence and retrieved the promptly over court on grounds evidence. trial denied defendant’s motion that the facts in M.F. were case before the distinguishable court. The court specifically stated follows: July[,]

“I think[,] do I stated back in that there are reasons significant distinguishing factors here that make this scenario think, substantially different, hap- much different or I than what pened ‘rooftop’case, is, in not the least of which this case ac- cording produced, the evidence to the State has defendant was run- legal ning Terry process running after a took [s]top place. In the foot, items, just drop on he discarded the didn’t them but threw adjacent fence[,] them over an which [an] is more of act affirmative amounting So, obstructing justice. enough to I do think there are distinguishing factors here motion that —uh—the should be denied.” jury justice. found defendant of obstructing The trial judgment entered verdict sentenced defendant years’

three imprisonment DOC.

This appeal followed.

II. ANALYSIS On appeal, defendant argues that the prove State failed to him guilty beyond a reasonable Specifically, doubt. argues prove the State failed to defendant “concealed” prevent evidence to prosecution possession drug paraphernalia because the State only demonstrated that defendant “abandoned crack full view of any without ability reasonable to conceal it.” The State argues that its burden of proof agree was met at We trial. with the State. 4(a) (Code)

Section of the Criminal Code of 1961 states: 31— person justice when, “A obstructs to prevent ap- intent prehension or obstruct the prosecution any person, or defenseof he knowingly any following commits acts: (a) alters, conceals[,] Destroys, physical evidence, disguises or plants false [or] information[.]” furnishes false 720 ILCS 4(a) (West2006). 5/31— charged

The State defendant, “with the intent obstruct prosecution of himself for possessing drug paraphernalia, knowingly concealed physical in that he threw a and push- metal rod over a being wooden fence and out of pursued view while by police.”

This court must first determine whether defendant’s actions 4(a) this legally case constitute concealment under section of the 31— 564 2006)). (720 4(a) (West is meaning of “conceal”

Code ILCS 5/31— Ill. law, People Ehley, de v. 381 question which we review novo. (2008). 937, 943, 772, 3d 887 N.E.2d 778 App. does

The Code does not define the term “conceal.” When a statute term, given ordinary term and mean plain not define is to be Morris, 182, 243, 1, 37 Inc., 219 Ill. 2d 848 ing. Philip Price N.E.2d (2005). disclosure or prevent “Conceal” is defined as follows: “1: to of[,] sight[,] Merriam- recognition place syn 2: to out of see HIDE.” (10th 1998). Dictionary 238 ed. Based Collegiate Webster’s case, facts defendant’s actions did conceal specific in this we conclude the evidence.

Further, correctly the Second the trial court determined judice. opinion distinguishable in M.E is from case sub District’s M.F., from alleged knowingly that M.F. concealed evidence State own the intent to obstruct his Phillip Brown with rooftop. containing cocaine off a prosecution by Baggies facts 642, F., App. According 315 Ill. 3d at 734 N.E.2d at 173. M. M.F., securing the front of residence Officer Brown was M.F., App. Ill. execute a 315 upstairs other officers went warrant. 643, heard the at 734 at 173. Officer Brown other 3d N.E.2d M.F., 3d presence. App. their 315 Ill. knock on door announce out a window 643, 734 at 173. He then saw M.F. come at N.E.2d M.F., App. Ill. 3d roof the entrance. 315 building onto the over M.F., not move. 643, at 173. Brown told M.F. at 734 N.E.2d Officer into his 643, at M.F. twice reached App. Ill. at 734 N.E.2d 315 3d street throwing motion toward the time made a pocket each ap Brown, standing on the sidewalk Officer who was behind M.F., 643, at 734 N.E.2d App. from M.F. 315 Ill. 3d proximately 30 feet flashlight on M.F. but could shining Officer Brown was at 173. 643, M.F., 734 App. Ill. 3d at in his hands. 315 what M.F. had see through M.F. the window grabbed at 173. Another officer N. E.2d 643, M.F., at building. App. 315 Ill. 3d him back into pulled M.F. had looked in the direction at Brown then N.E.2d 173. Officer containing a rock-like bags and found three objects thrown 10 feet cocaine, substance, positive approximately which tested 643-44, at 173-74. App. Ill. at 734 N.E.2d him. 3d from aggies [B] “he not conceal the in M.F. did argued The defendant they were person, by throwing away them merely prosecution was so that his by the officer within seconds retrieved at 176. Ill. at 734 N.E.2d M.F, obstructed.” stated: Appellate Court Second District there by the statute and is not defined “Since the term ‘conceal’ addressing the issue of concealment in Illinois point no case on

565 facts, based on this set of we have examined cases from other jurisdictions applied term have this to similar facts. Other evidence-tampering states have similar obstruction or statutes making alter, destroy, mutilate, conceal, it a crime to suppress, or physical verity remove evidence the impair with intent to or availability legal proceeding investiga in an official or a criminal (Emphasis original.)M.F., 646-47, tion.” App. 315 Ill. 3d at 734 N.E.2d at 176.

After thoroughly discussing jurisdictions, decisions from other the Second District stated: that, appears

“It under presented, weight the scenarios the clear authority from other states concludes that where a defendant merely drops, down, drugs throws or vicinity abandons in the the defendant and in presence the police, view of the this conduct does not constitute support concealment that will an evidence-tampering charge, or obstruction or a conviction that is separate additional to and ongoing from the possessoryoffense. jurisdictions, Like other this court criminal construes statutes strictly, expansively. rather than language The used the legislature is the legislative best indication of [Citation.] intent. Where language the plain unambiguous, is a court will not read in exceptions, limitations, or conditions that legislature the did express, nor should a court search any subtle or not readily apparent legislature. intention of the [Citation.] Criminal penal or statutes are to strictly be accused, construed in favor of an nothing should be taken intendment implication beyond or the obvious or literal meaning of the statute. [Citation.] Absent a legislative clearer intent, we conclude that when an individual who suspected committing possessory a offenseabandons evidence by dropping throwing or it ground presence police the of a officer, such conduct does not constitute act of concealment meaning within the of the statute that would sustain a conviction felony additional obstructing justice.” M.F., offense of 315 Ill. App. 3d at 734 N.E.2d at 178.

However, in judice, the case sub defendant merely did not abandon by throwing ground it to the vicinity and view of the police officer who was shining flashlight Here, a on defendant. defendant took the more affirmative act of the evidence over a fence and out of the police view of the while defendant was fleeing from the alley down an at night. (Fla.

In case, Hayes State, similar 634 1994), So. 2d 1153 App. the Florida appellate court upheld the defendant’s conviction for tampering with defendant, evidence where being pursued by officer attempting to defendant, pulled arrest the Baggie containing pants Baggie crack cocaine dropped into drainage Baggie outlet. The wet from the drainage retrieved system. Hayes, 634 So. 2d at 1154. case, Jennings,

In a Florida Court Supreme similar State v. (Fla. 1995), So. court the trial supreme 2d 131 reversed court’s dismissing charge tampering physical order evidence where police, upon approach alleged tossed objects mouth them. the defendant rocks into his and swallowed were never recovered. swallowed State, Jennings disagreed with Boice v. 560 So.

(Fla. 1990). Boice, purchased a small As cocaine from an undercover officer. soon as transaction the vehicle. The completed, police was the surrounded defendant’s bag the defendant throw the cocaine undercover observed the bag out of his of the other officers retrieved the window car. One sitting from near on the driver’s roadway the where it was the door The reversed reviewing side of the defendant’s vehicle. court the evidence, finding with tampering “[t]he defendant’s conviction away from tossing act of the small of cocaine his defendant’s presence arresting in the at the scene of person while the a purchase the not rise to the level of conduct which constitutes [did] something impairing for the purpose concealment or removal of the the criminal trial” since defendant did remove availability for Boice, the area of his 560 So. 2d at the immediate arrest. 1384. Boice extent it can disagreed with “to the be Jennings away in of a presence law[-]

read evidence tossing to mean not, law, does a matter of constitute violation enforcement officer Jennings 2d at 133. The court found: Jennings, 666 So. the statute.” circumstances, upon such an act could amount to “Depending An act concealing evidence. tampering or affirmative away than abandonment. We constitutes more mere evidence overly ruling is in an broad that the trial court’s rooted conclude object clearly swallowing find that reading of Boice and removing ‘thing’ altering, destroying, concealing, or constitutes added.) (Emphasis 918.13.” Jen- meaning of section within So. 2d at nings, 666 narrowly interpret urges us to judice, case sub

In the line “conceal,” that we should do so meaning arguing (1) he the evidence argues since “abandoned” case. Defendant M.F. police of- the fence full view the evidence over when he threw not be that his action would expectation any reasonable ficers without (2) discovered quickly the evidence viewed the police, qualify his actions cannot as “concealment” under the obstruction-of-justice Supreme statute. As did the Florida Court in its decision in Jennings, place this court declines to such a narrow interpretation on statute under the of this case. circumstances Defendant ran from the police alley night. down an at were in pursuit, not shining flashlight every on his move. Defendant did merely drop along flight the evidence but it path, threw over six-foot, wooden reasonably fence. Defendant could have anticipated that the police may not see him throw evidence over the fence. Fortunately police, the area where defendant threw happened well-lit, empty lot, to be a parking making retrieval of the evidence possible. reasons,

For the foregoing defendant’s affirmative act constitutes concealment of the evidence under the obstruction-of-justice statute.

III. CONCLUSION stated, For the reasons we affirm the trial judgment. court’s As part judgment, of our grant we statutory the State its assessment of against $50 defendant as costs of this appeal.

Affirmed.

McCullough, ej., concurs. POPE,

JUSTICE dissenting: I respectfully Although dissent. the majority attempts to distin- guish M.F., this case from my opinion it is virtually indistinguish- able. In executing were a search warrant for narcotics at an upstairs apartment while Officer Brown secured the front of the residence. hearing After the other officers knock at the door of the apartment and announce their presence, Brown saw M.F. come out onto the roof and toss what turned out to be narcotics toward the street behind Brown. M.F. did simply items, not drop the nor did he simply abandon them. He threw them off the clearly to avoid roof— by detection the officers executing the search warrant.

The Second District found M.F.’s conduct did not constitute justice obstructing based on concealment of because he threw drugs from a in rooftop vicinity of a police officer and the drugs were recovered within circumstances, seconds. “Under the it does not appear that likely this act destroy to either the evidence or make recovery likely. Therefore, less even though respondent may have intended to prevent apprehension or obstruct the prosecu- tion of himself for the possession charge, throwing drugs 568 the additional concealment that will sustain

ground was not an act of 650, at 734 N.E.2d App. offense.” 315 Ill. 3d obstructing[-]justice at 178-79. distance only the officers were short judice,

In the case sub same, objects, him throw the and recovered behind saw simply did not area seconds. Defendant open, in an well-lit within anything. conceal Jennings, are by majority, Hayes

The Florida cases cited merely throw the defendant did not clearly distinguishable. Hayes, In into them police of officers—he stuffed presence the items in the Jennings, the defendant 634 So. 2d at 1154. drainage Hayes, outlet. of the cocaine, resulting in the destruction the crack swallowed quite similar to Jennings 666 So. 2d at 132. Jennings, evidence. 464, 465, Brake, App. 336 Ill. People decision in v. Second District’s (2003), the court affirmed a defendant’s 1084, 1085 where 783 N.E.2d in the bag drugs of when he swallowed conviction for obstruction in Jen reasoning Hayes, agree officer. I presence police of amounted to concealment. Brake. The acts in those cases nings, and to the case sub with similar facts However, other out-of-state cases here did not conceal defendant a determination judice support 1999) (Alaska State, 204, App. 205 987 P.2d Vigue evidence. See v. conviction, (overturned tampering-with-evidence the defendant’s ground when a cocaine to the dropping on defendant which was based Pa. him); Delgado, v. 544 Commonwealth approached police (overturned (1996) the defendant’s 223, 224 591, 592-93, A.2d 679 plain police in view of discarding contraband conviction, finding act of (the garage a small cocaine on the roof of threw a defendant (1) throw saw the defendant officers who being pursued (2) object) not constitute recovered the does quickly object evidence); Fuqua, v. 303 N.J. State or concealment destruction (held (1997) Jersey hindering 47, 44, 48 New 40, 696 A.2d Super. completed of a to refer to evidence “sensibly construed statute was apply where crime” and did act, possessory a current criminal socks); Sharpless, 314 State v. concealed his had cocaine defendant (act (1998) discarding 333, 440, 459, A.2d 343 Super. N.J. conduct to a level of does not rise plain view contraband evidence); v. Pat State concealment destruction or that constitutes 1994) (affirmed (Tenn. dismissal App. Crim. ton, S.W.2d 732 defendant abandoned alleged the indictment that evidence-tampering of by police being pursued tossing it aside while cannabis baga 2000) (Tex. State, 15 S.W.3d ficers); Hollingsworth conviction, was based (reversed evidence-tampering in front of mouth he had out cocaine spitting officers, where crack transporting evidence showed defendant was customary cocaine in a trying impair manner and was not to its avail- (held ability evidence); Boice, 560 So. 2d 1384 the defendant’s act of tossing away of crack in the presence only amounted to abandonment and not concealment sufficient to defendant). convict the (Alaska State, 2005), Anderson 123 P.3d M.F.,

which was decided subsequent the defendant was involved a car chase with after he had broken into a house and shot and chase, robbed one of the occupants. During the the defendant tossed car, items out of the including handgun, magazine handgun, and Anderson, ammunition. charged 123 P.3d at 1111-12. The State variety offenses, defendant with a including tampering with Anderson, of which he was convicted. 1112. 123 P.3d at On review, the Alaskan appellate court “conclude[d] [the defendant’s] conduct tossing the articles from the car did not constitute Anderson, crime of evidence tampering.” According 123 P.3d at 1112. to the court: give

“[I]f we were to interpretation ‘remove’, broad to the words ‘conceal’, ‘alter’, and person then a shoplifted candy who bar separate would commit three acts of tampering evidence —three (1) separate they away felonies—when walked from the store with (2) candy, unwrapped candy deposited wrapper in a (3) receptacle, trash candy. then ate implausible It seems legislature that the intended the applied statute to be in this man Anderson, ner.” 123 P.3dat 1118.

However, the Alaskan appellate court stated it not holding “act of tossing away evidence can never constitute tamper ing.” Anderson, court, 123 P.3d at According “[t]he test appears to be whether disposed of the evidence in a manner destroyed it or recovery substantially that made its more difficult impossible.” Anderson, or 123 P.3d at 1119. clearly

While defendant here did not want to have the items in his possession police eventually him, when the apprehended his act of throwing the conceal, alter, items did not destroy or them. The items, officers saw him throw the knew the area where the items were thrown, though even temporarily items were out their sight, easily were able to recover the items within seconds. Defendant’s actions neither destroyed disguised nor push the crack rod recovery nor made the of those either impossible. items difficult or If the items had been destroyed recovery or their substantially made more difficult or impossible, then an obstruction conviction would proper. Anderson, have been See 123 P.3d at 1119. As in evidence of concealment in this case was insufficient sustain justice. conviction for obstruction of defendant’s jury possession I defendant not Lastly, note a found very paraphernalia that forms the basis for his conviction for (obstruc- most, attempt obstruction. At defendant here was justice). tion of KOE, JR., THOMAS, Plaintiff-Appellant, v. FRANK Defendant-

LEON (James THOMAS, Appellee Ginzkey, Contemnor-Appellant). P. — LEON KOE, JR., Plaintiff-Appellant, Defendant-Appellee. v. FRANK 4—08—0705,— 0884 cons.

Fourth District Nos. 4—08 Opinion September filed

Case Details

Case Name: People v. COMAGE

Court Name: Appellate Court of Illinois

Date Published: Nov 17, 2009

Citation: 918 N.E.2d 1211

Docket Number: 4-08-0402

Court Abbreviation: Ill. App. Ct.