*1 considered, erly release upon from the Department, following the reversal, R.D.S. returned to his criminal activities. Under the circum- stances and given the context of his reference to the prior adjudication, we find no error. This situation is distinct from that in which a sentenc- ing judge considers or relies upon conviction, a prior subsequently re- versed, as a matter in aggravation in sentencing upon subsequent charge. Here, it was not the prior adjudication or its circumstances noted, court but the respondent’s conduct after having been released from commitment following prior adjudication. The mere mention of the prior adjudication, context, this does not mandate reversal.
For the reasons stated, the judgment of the trial court is affirmed. Affirmed. BARRY,
STOUDER JJ., concur. ILLINOIS, THE PEOPLE OF THE STATE Plaintiff-Appellee, OF DEATHERAGE, GARY Defendant-Appellant.
Third District No. 82-813 Opinion filed March 1984.
BARRY, J., specially concurring. Agostinelli
Robert Carusona, and Peter A. of Appellate both State De- Office, Ottawa, fender’s of for appellant. Barra,
John A. State’s Attorney, (John of Peoria X. Breslin and Patricia Hartmann, both of Attorneys Commission, State’s Appellate Service of coun- sel), for the People.
PRESIDING JUSTICE STOUDER delivered the opinion of the court:
Together with Danny Cabage, Gary Deatherage, was indicted for the unlawful delivery less than 30 grams sub stance containing (Ill. 56½, cocaine. Rev. Stat. ch. par. 1401(b).) The defendant tried was before a separately jury and convicted as He charged. was sentenced to years’ three imprisonment.
The State’s case was based on an accountability theory. ap- On peal, (1) contends: that he was not proven guilty be- a yond reasonable doubt because the State’s evidence of his account- ability entirely was circumstantial and his conduct was explainable by a innocence; reasonable hypothesis (2) that the trial judge improp- erly admitted into evidence statements made by Danny Ca- bage; (3) that he prejudiced was prosecutor’s closing argument; (4) that the trial judge erred in the first giving only paragraph Illinois Pattern Jury Criminal, (IPI), (2d Instruction No. 3.02 ed.
1981), on circumstantial evidence. under-
The occurrence witness at the defendant’s trial was only Francis His agent testimony cover Simmons. established at Sports Page approximately defendant was tavern present 11, 1982, (Simmons) 1:45 on when he entered tav- p.m. February a introduced Simmons to Gary DuPoy, agent. DuPoy ern with fellow the entrance to the The defend- Cabage, standing who was near bar. ant in the middle of the bar. sitting was in the
Simmons, Cabage talked for awhile bar and DuPoy conversation, then went outside to the lot. After more Sim- parking to the The Cabage agents mons and left and returned bar. two DuPoy met with officers and then returned to the tavern at about 2:30 police to set for the of cannabis from p.m. up meeting purchase he The Cabage
Simmons saw as entered bar. two went outside then arranged where Simmons for the of cannabis. Simmons purchase Cabage asked if he could a taste of cocaine. Cabage replied obtain The “guy.” agreed that he would have to contact another two did p.m. Simmons would at his home at 5 Simmons telephone not see the defendant at this time. Instead,
The call not Simmons and p.m. telephone made. at the Cabage’s home at 5:30 met them DuPoy p.m. went couch, watching The defendant was seated on the room living door. *3 television. room, the entering pres- the Simmons concern at
Upon expressed ence of someone new. There was some confusion about the exact con- then, it that undisputed Cabage versation that took but is place him not Simmons a of cocaine and told to about sample worry showed knew the Cabage they the defendant’s and both said presence. DuPoy hand, the point, and at some Simmons shook defendant’s him him. telling nothing against he had he him was the Cabage told Simmons that the cocaine showed he sell of it to he had He stated that would some purchased. best ever get asked if he could gram. Simmons for When Simmons per $100 the more, the defendant what the source had said about Cabage asked that the gram, it a but The defendant that was price. replied $200 an “8th” for source had purchased $285. that cannabis, and Cabage replied about the
Simmons then asked the canna- go get about to outside to they it was in the car. As were more cocaine from get if he could bis, Simmons asked the defendant answer, Cabage interrupted but The started to the source. defendant of the cocaine. and quantity Simmons about the quality and talked to re- Cabage’s car and a carton from and Simmons obtained Cabage 623 a bedroom entered Simmons, Cabage and DuPoy house. turned to the the Simmons on bed. of cannabis dumped pounds five Cabage where cocaine, and grams for two $1,930, of which was paid Cabage $200 Cabage replied in the future. him cocaine get then asked who could Sim- guy.” another that through guy plus “go he would have to the to a reference to be guy” reference to “that the mons understood place, took the bedroom in after the transaction Shortly defendant. left the house. DuPoy and Simmons not es- did that the evidence contends the defendant appeal,
On we address Before a doubt. reasonable accountability beyond tablish the issue raised to the second issue, our attention this we turn the admitting in trial court erred defendant; is, whether the Cabage. Danny declarations of hearsay Sim Agent in to statements attributable
Those to co-conspirator exception the admitted under testimony mons’ were which co-conspirator, aby rule. To admit statements hearsay rule, must estab the State barred would otherwise be a evidence. Once nonhearsay conspiracy by lish the existence of a pre aby has established of a venture been prima showing joint facie of a evidence, co-conspirator made aby statements ponderance may be conspiracy in furtherance of the the course and party during 215.) 278, 408 N.E.2d 81 Ill. 2d (1980), admitted. v. Goodman (People and the the declarant illicit association between While of the proof (2d v. Cicale (United circumstantial States totally bemay sufficient, indepen it substantial 1982), 95), Cir. 691 F.2d must be 278, Ill. 2d 81 (1980), v. Goodman (People dent of the declarations. 683, 701 (1974), 418 U.S. 215; v. Nixon 408 N.E.2d United States 3090, n.14.) A n.14, pre n.14, 94 S. Ct. 41 L. Ed. 2d not does in the case at bar evidence nonhearsay ponderance Danny Cabage between support finding conspiracy defendant. meetings two in the first not involved actively
The defendant was occurred meeting, the first which During of Simmons and inside was seated lot, the defendant parking tavern’s Sports Page lot. Sim- parking took in the meeting place The second also bar. this time. The defendant mons did not see the defendant at arrived DuPoy Simmons and at the home when present *4 price the cannabis, and he answered a about question the purchase to es- sufficient hardly evidence is cocaine to him This put by for the deliv- the defendant between conspiracy tablish a be- agreement of an There is no evidence of cocaine to Simmons. ery knowledge Mere conspiracy. two, which is the essence tween 624
or acquiescence of an illegal act does not constitute conspiracy. People
(1981),
Mordick
Ill.
497,
94
3d
App.
Because a conspiracy between Cabage and the defendant was not proven, the trial court erred in all of admitting the statements attrib- utable to Cabage. We need not address the question whether one particular declaration by Cabage was admissible as an implied admis- sion by defendant. Since none of Cabage’s out-of-court statements admissible, were one particular statement cannot serve as the basis of an implied admission defendant.
Turning now to the first issue raised by
defendant,
we
hold that his conviction of unlawful delivery based on an accountabil
ity theory cannot stand. To sustain
conviction,
such a
the State must
beyond
establish
a reasonable doubt
(1)
solicited,
that:
the defendant
ordered, abetted, agreed or attempted to aid another in the planning
or commission of the
(2) the
delivery;
defendant’s participation took
place before or during the commission of the
delivery,
(3)
concurrent,
had the
intent
specific
to promote or facilitate
the commission of the
(Ill.
1981,
offense.
Rev.
38,
2;
Stat.
ch.
par. 5—
People v.
22
Trapps (1974),
1029,
Ill.
3d
App.
318
108.)
N.E.2d
Mere
presence at the scene of a crime and knowledge that a crime is being
committed is insufficient to
guilt. (People
establish
v. Evans (1981), 87
77,
Ill. 2d
520.)
N.E.2d
Where the evidence is
circum
entirely
stantial,
it
bar,
as
is in the case at
guilt must be established so as to
exclude every
hypothesis
reasonable
of innocence. People v. Grizzel
(1943),
11,
382 Ill.
78;
People
N.E.2d
v. Wright (1976), 43 Ill. App.
3d
In the present case, the evidence shows only that the defendant was present and that he may have known about the transaction. The references made to another were too “guy” vague to im- plicate addition, In defendant. it is possible that the while an obviously individual somewhat knowledgeable about the local trade, cocaine an innocent merely Such an bystander. innocent in- is terpretation supported by evidence.
For the foregoing reasons, we find the evidence insufficient sustain the defendant’s conviction of unlawful on an account- delivery ability theory. This is so even with consideration of the improperly ad- mitted hearsay by Cabage. statements, declarations Without those there clearly against is no case the defendant.
For the reasons the foregoing judgment of the circuit court Pe- oria is reversed. County
Reversed.
HEIPLE, J., concurs. BARRY, specially concurring:
JUSTICE all of the I but not majority, with the result reached agree Ca- I declarations reasoning agree therefor. provided there admitted, such declarations bage were and without improperly charged. of the offense insufficient evidence to convict this defendant enough Had the there have been properly may statements been admitted evidence to support conviction. ILLINOIS, Plaintiff-Appellee,
THE PEOPLE THE STATE OF OF OVERTURF,Defendant-Appellant. DAVID Third District No. 3-83-0547 16, 1984.
Opinion filed March STOUDER, J., concurring. specially Lilien, De- Appellate of State Agostinelli
Robert and Thomas A. both Ottawa, Office, appellant. for fender’s Barra, (John X. Breslin and John M. Attorney, State’s of Peoria
John A. Commission, counsel), Wood, Attorneys Appellate Service both of State’s People. for the