People v. Jones

in plaintiffs’ that the trial court was correct its determination that counsel played securing a substantial role in the settlement.

Finally, attorney’s GEICO contends that the award of fees attorneys excessive. Plaintiffs’ equalling were awarded amount one- money paid third GEICO’s interest into GEICO submits court. attorney’s properly depended upon award of fees should have circumstances, including consideration of all the the nature of existing attorneys, contract their plaintiffs between the amount rendered, complexity litigation. nature of the services and the However, the record before us is devoid of information as to how the court arrived at the award. On the record before us we determine cannot its propriety opinion of the award and therefore render no as to excessiveness. reasons, part, foregoing

For the this cause affirmed reversed County the circuit court of St. Clair part and remanded opinion. proceedings consistent with this part, Affirmed in and remanded. reversed KARNS, JJ., concur. JONES ILLINOIS, Plaintiff-Appellee, OF

THE PEOPLE OF THE STATE JONES, Defendant-Appellant. BRAD 77-331 Fifth District No. Opinion July 1979. filed MORAN, J., dissenting. G.

Hogan Jochums, Murphysboro, appellant. for Sutton, Thomas Attorney, (Bruce Raymond H. State’s of Carmi D. Irish and Buckley, Jr., Attorneys Commission, F. Appellate both State’s Service counsel), People. for the Mr. opinion delivered court: JUSTICE JONES defendant,

After a jury trial in the County, circuit court of White Jones, offenses, Brad including found of several calculated 5@%, criminal (Ill. par. 709(b)), cannabis Rev. Stat. ch. possession unlawful grams of more than 500 of cannabis with intent 5@M, deliver to a person years age (Ill. under 18 pars. Rev. Stat. ch. 705(e), 707(a)), unlawful more than 30 not more than 500 grams of person years cannabis to a age (Ill. under Rev. 56½, pars. 705(d), 707(a)), possession of more than 500 unlawful 58*2, 704(e)). par. cannabis Defendant

was thereafter sentenced on named these offenses four concurrent imprisonment terms of all years of which were one except to three possession with intent which was years. deliver one five The defendant raises following (1) issues on appeal: whether procedural irregularities deprived proceed jurisdiction court of case; judgment (2) guilty beyond defendant was proved whether reasonable doubt calculated criminal unlawful of delivery grams of more than 30 but not than 500 grams more Watkins; cannabis (3) refusing to in issues whether the court erred the defendant; instructions in (4) tendered the court erred whether denying charging defendant’s motion to the count him with dismiss possession unlawful of to more "than 500 of cannabis with intent in age; (5) the court erred person years deliver under of whether to possession and entering judgments and sentences on both the of cannabis the possession charges cannabis with intent to deliver and both delivery charges; conspiracy of cannabis and calculated criminal cannabis (6) provision (Ill. Rev. penalty whether elements the enhanced 56/2, par. 707(a)) sufficiently proved were charge; (7) and court its of cannabis whether abused in denying probation. discretion defendant, Vas, alleged co-conspirator as Louis testified serving residing city-county jail follows. At the of trial was in the time he six crime of periodic months confinement because of conviction plea guilty. criminal Involved calculated cannabis after Jones, Jones, Wells. with him Brad Kathi and Keith were supply buy pounds He was six cannabis. He and were *800to Jones this get pound each it as talked about profit. They a half from March, 1977, arrangement again time 6th and first on the supply money and weekend of 12th of March. He Jones 13, 1977, Wells was to the cannabis. On March he talked with Keith sell and were up money and Dennis Odell. Vas was to and Wells put Jones On arrangements. price per pound. the other was set at *135 make Monday, carpet and March he went store Carmi Joneses’ He, He present. *800 in Kathi were delivered cash. Brad and Jones Jones money at this about gave the to Kathi There was no discussion time Jones. what *800 was for. and evening,

That March he went to Brad Kathi house Jones’ 6 a.m. the next with Brad and Kathi until 5:30 or Brownsville waited in. had told him would come morning for the cannabis come Jones night, in that informed evening. The cannabis did not come but Jones in; a.m., day, had come him at 8:30 the next March him He met try and that he would let some. had stashed Jones Jones told cigarette which day gave him a later that Jones Jones objected to shipment. him Defense counsel came from being but the was admitted as relevant testimony, Vas, and Dennis this incident were conspiracy. during Present Jones cigarette. opinion, cigarette In his contained Hite. Vas smoked the texture, marijuana and he composition marijuana. Its color and resembled opinion it. for this “high” smoking from As foundation received He from Vas. following information prosecutor elicited the testimony, the years, and eight since marijuana regularly had smoked it looks smoking it well as how familiar one “high” gets and smells. at 15th March together was on the got time The next Vas Jones were Vas, Jones, Kathi and Keith Wells

Brad house. Brad Jones’ present. There pounds marijuana lying were about six around a chest in living the It in one-pound They room. was bricks. all it. smoked some of it, They it, bagged also cleaned got pounds ready They and two for sale. gram used a scales put bag. and tried to an ounce in each sandwich After they marijuana, smoked some of the Vas that it fair stated was stuff for being Mexican. agreed Defendant with this In Vas’ characterization. opinion, marijuana. the agreed substance was It was that greatest part sale, marijuana, of the kept which was for at would the Jones residence.

On Tuesday, Jones, March Vas received *300 cash from on Brad 23rd, Wednesday, cash, 25th, *150 in day got and on the “we” arrested, he received *300. It agreed was this cannabis would be for sold quarter. *50 a A quarter agreement four ounces. This was made on the 16th of March. present. Dennis Hite was remaining broken down Brad and Vas March 23 put garbage on and in a Jones bag. Hall, Mark County a White deputy sheriff testified that on March participated he in “an investigation trying up buy involving to set a objection one Watkins.” Over p.m. he testified around 5 he told Jim purchase Watkins to some marijuana. Watkins later eight delivered nine packages marijuana to him. He it labeled and turned it over to the custody of the sheriff. The it in put sheriff the evidence security locker for and that was the last he saw of it. Carlton,

Brenda age testified for the that she was in a car defense 24,1977, Watkins on March Mark Hall police when and another Jim picked officer up them police took them to the station. Watkins went with Hall and she went with the questioned, other officer. She was searched, and go. say then let She happened did not what to Watkins.

Dennis marijuana Hite testified for the a State about transaction which 17-year-old involved Brad Watkins. said that Hite Jones Jim Watkins asked about buying half-pound marijuana morning on the 24, 1977, March and that later that same day he and Watkins went to the purchase. residence to make a Hite and Watkins met Brad on Jones Jones way house and Hite informed defendant was with he Jones a “boy” who buy marijuana. go wanted to some Defendant told Hite to his house and wait for his and Kathi’s return from town. When Brad and house, ICathi at arrived pick up Hite went inside to Jones marijuana while Watkins car. gave remained Hite defendant *110 he had half-pound received from Watkins and marijuana took defendant garbage bag living removed from a Watkins room out to who then left. Hite testified that he had made a number of similar purchases from during the week 24. He also preceding March testified that he had been convicted of unlawful of cannabis for serving 24 and that he presently the sale Watkins on March to prison sentence for that offense. defendant,

Hite, substance objection testified over in fact He said that marijuana. he from on March 24 was obtained Jones it; “six to a had smelled he year.” he had used months He it, particular had what it like. This had smoked and he seen looked He it. He marijuana was sandwich-like form. did smell or smoke green testimony that this leafy. described The court held properly testify Hite to substance qualified obtained Jones marijuana. 25, 1977, On and Kathi March warrants for arrest Brad judge a circuit and for a search residence were issued the Jones County. The complaint deputy sheriff of White upon chief delivery of with cannabis. charged arrest warrant defendant unlawful marijuana Watkins delivery on to These warrants were based Jim Harry Kijonka March 1977.On March Illinois State Policeman on Carter, and Mary Vaupel, County Deputies Lloyd and Sheriff’s White Hall execute the warrants. Mark Hall went to the residence to Jones backyard he first testified that encountered Jones bag in hand to large paper appeared a his which residence. had Jones where marijuana. go contain Defendant was asked to inside house immediately read Kijonka both he his were Trooper and wife arrested. form. departmental his from a warnings defendant and wife Miranda 1/2 rights. Approximately his The defendant understood indicated he later, jail and 7:15 had been taken to p.m., hours or after defendant talking trooper willing that he continue to processed, he indicated to willing give he statement Kijonka. He further indicated that would be then after he Attorney. Attorney to the State’s The State’s located and rights, readvised defendant of defendant answered constitutional sale of questions. some testified that defendant admitted the Kijonka sell cannabis cannabis Hite. stated that he was free to Defendant also pound pocket and agreed upon per quarter than the more sold. “pinch top” quantities off the difference as well as to some criminalist, Wist, offered Investigation an Illinois Bureau Andrew on performed of scientific tests which he testimony as to results pursuant which were seized from residence substances procedures He performed search warrant. two on the substances will together when considered indicate whether the substance tested cannabis, microscopic examination and the color Duquenois-Levine holding was bag test. The material in the that defendant was discovered Material containing found to cannabis. grams contain 748.6 a substance residence, weighing a total items at the found several other seized testimony grams, marijuana 117.5 or cannabis. No also found be concerning was offered delivered to Watkins nor was placed into evidence. the trial procedural irregularities deprived

The first issue is whether jurisdiction proceed judgment court of this case. The defendant’s arguments rambling, this and “issue” are incoherent Nevertheless, incomprehensible. independently we have reviewed on Since defects in the manner appeal. record we cannot discern case, brought argument which defendant was to trial in this we find this wholly without merit. proved guilty beyond Defendant’s next that was contention is he a reasonable doubt un- conspiracy of calculated criminal cannabis delivery lawful than of more 30 but not more than 500 of cannabis to Watkins. case,

Under the facts of this closely these two offenses are tied to one 9(b) (Ill. another. Section of the Cannabis Act Control Rev. 56/2,par. 709(b)) provides that: “# * 9 person engages in a calculated criminal cannabis [A]

conspiracy when: Act;

(1) 4(d), 4(e), 5(d) 5(e) he violates Section of this or (2) such violation is or carried undertaken on persons; or more other S50Qfrom, (3) anything greater he obtains of value than or organizes conspiracy.” directs or finances such violation or seen, As can be one element of cannabis is the 56%, 4(d) 5(d) violation of section of the Act pars. 704(d) case, 705(d)). the instant alleged element was to be a violation 5(d) involving of section of between and 500 Thus, charge of cannabis to Watkins. the cannabis could proved beyond not have been doubt unless the reasonable We, therefore, delivery charge proved. was also shall address the arguments delivery charge as to the first. argument proved guilty

Defendant’s first is that he was not of this presented since no scientific evidence was to establish that the substance delivered disagree. to Watkins was cannabis. We

Although it is IBI expert testimony presented by true no was particular criminalist to establish that the to Watkins substance delivered cannabis, was it is well that circumstantial evidence can be established (People used to establish that a v. Park substance contains (1978), 795; (1958), 72 Ill. 2d v. 14 Ill. 2d People N.E.2d Robinson 325, 153 65), if by N.E.2d and that this can be the admission of defendant substantial, independent there is alleged corroboration of the defendant’s Park; corpus (People People admission of the elements of the delicti v. v. (1967), 220). 38 Ill. 2d 230 N.E.2d This Hubbard case meets these requirements. testimony trooper Kijonka

The established that defendant that the through marijuana. admitted substance he sold Watkins Hite was may This admission in itself great weight accorded since there was substantial knowing evidence defendant had a means of in question Park.) substance contained cannabis. v. (People revealed that being defendant smoked some of substance which was sold on several occasions and that after smoking during some of the first sale, night on which it prepared agreed was for Vas’ he Louis marijuana characterization of the as “fair stuff being Mexican.” addition, (cid:127) 2 In corroborating there are numerous other circumstances adequately this record which establish circumstantial evidence that the substance in question (1) was cannabis. These circumstances are: expert testimony establishing of Wist that the substance seized from the cannabis; defendant’s (2) properly qualified opinion home was testimony of Vas that selling marijuana Louis the substance 27, 322 514; (see People Binkley (1975), App. v. N.E.2d v. Robinson; Ewing (9th 1967), 10); (3) v. Cir. United States 386 F.2d substance, high price paid by Watkins for pound one-half suggesting that principals steps had taken to assure themselves of the Park; identity marijuana (People of the substance as v. States v. United (7th 1974), Cir. Lawson 507 F.2d cert. 420 U.S. denied 43 L. 1446); (4) large quantity Ed. 2d 95 S. Ct. sold, supporting identity substance a similar inference as to assurances Park; (People (2d 1963), 916). v. Cir. United States Bentvena 319 F.2d primary importance Of first corroborating to the two of these circumstances is fact that the substance sold to Watkins was greater single amount which was obtained from a source. The evidence one-pound purchased established that six bricks of were on 15, 1977. as that question, March The substance here as well which was arrest, upon shipment. seized defendant’s home came from this fact, testimony pound that the half which was Hite’s would indicate bag him out of a of which through delivered to Watkins came the contents criminalist. Since there is no reason to believe that were later tested any separate portions any appreciable there were differences between greater marijuana, taken from the amount of we find there beyond a rea presented to establish adequate circumstantial evidence was cannabis. to Watkins doubt that the substance delivered sonable Defendant makes two further contentions with that it was that the substance He contends first delivered was cannabis. been testify objection that he had error to allow Dennis Hite to over involving convicted the basis the transaction of cannabis on of himself, Watkins before the State established substance involved that it was error to was cannabis. He also contends allow to that Watkins was testify Hite the substance he obtained for marijuana any since he had not of the substance delivered. smoked Although the testimony concerning conviction admission the Hite’s may may have been error at the time it was have been offered there an testimony insufficient foundation as the opinion laid for Hite’s to substance, identity of the we find the admission both items of evidence to beyond strong be harmless doubt view the reasonable proof circumstantial the identity of the substance. identity argument concerning

Defendant makes an similar that to of the substance delivered to Watkins with amount of the substance argues testimony transferred. He that in expert the absence of as to weight substance, of the there was insufficient that amount weighed delivered than 30 than more not more grams. agree. We cannot

The evidence adequately established that the amount involved fell within weight testimony classification. The Vas demonstrated great place care which was taken one material ounce each bag sandwich prepared for Hite that sale. testified he endeavored obtain pound eight one-half ounces of from defendant Watkins. The defendant sought confirmed the amount was one-half pound weighed before he up eight bags sandwich of material which were transferred to Hite. It is weighing axiomatic that a eight substance ounces pound equals one-half 226.792 grams. Since the substance purportedly delivered here weighed weight one-half its pound, fell well within weight the pertinent classification. solely

Defendant makes several arguments relating other cannabis conspiracy as there was his contention insufficient him charge. Although evidence to of that some of evidence, these arguments strictly sufficiency do not apply to the of the we will discuss them at this time. jury called,

After the impaneled but before witness was defendant moved to dismiss the cannabis on the basis conspiracy charge statutory provision information failed to which had cite allegedly motion, been violated. The the State court denied this allowed statutory amend the count by interlineation so that included the citation objection the trial that he could commenced over defendant’s not be on the being tried amended count without reverified. Defendant now try contends it was him reversible error to so since failure cite statutory provision agree. was a material We cannot defect.

It long has held an information been if amendment may original, change no material in the averments involves original had on the information amended without renewal (People Clarke originally formalities observed. v. People 425; 656, Troutt 370.) 366 (1977), App. Ill. 3d N.E.2d

N.E.2d the in this case not effect a material The amendment of information did prejudiced can it said have the change the averments nor to offense, the named set original defendant. The count of information the forth all of elements calculated criminal cannabis the essential of 1977, as conspiracy provided 9(b) in section of the Act 56½, the as the par. 709(b)), particularized apprise and so far offense to certainty precise defendant with the with which he reasonable of offense (See People 510, v. Gold charged. (1967), 702.) 232 N.E.2d was 2d circumstances, Under these we find omission of the numerical citation the require a statutory of the be a formal defect which did not provision to prior the the trial. See new verification of count commencement of v. denied People 433, 248 cert. Torello (1969), App. Ill. 2d N.E.2d (1970), 397 U.S. 25 L. Ed. 2d 90 S. Ct. 1089. involving persons conspiracy that a two

Defendant contends next there was proved required by other than was as statute since himself wife, Jones, Kathi co- insufficient evidence to establish that conspirator. disagree. We at in order to repeat point

For the of we shall that clarity, sake necessary prove it conspiracy of find defendant conspiracy of of a 5(d) that his violation of the Act was section is this defen- involving persons. requirement two more other It which or a con- proved to be dant contends was not met because his wife was not spirator. It agreement among conspirators. is an

By conspiracy definition action. necessarily undertaking joint in concert some implies acting v. (People Binkley.) However, design is of a while a the essence common by design direct conspiracy, necessary is not such common conspirators, only rather is agreement of an between the evidence tending pursued that a course toward the necessary they to show conspiracy’s object. (People Persinger v. (1977), accomplishment of Binkley; People Perry v. 897; App. Ill. 363 N.E.2d 3d P.ersinger: 147, 177 Ill. 323.) N.E.2d As stated this court 2d “* * and conspiracy of nature clandestine °[B]ecause prosecution’s burden difficulty foreseeable have courts proof, direct establishing * ** drawn broad inferences to be permitted [one’s] acts, conspiratorial agreement intent 116, 121, 363 N.E.2d conduct, App. Ill. and circumstances.” 49 897, 901. record, infer jury properly that examining

After we find could of Kathi from the of this and the acts and conduct circumstances case six plan pounds that she was a in the to deliver five or participant fact marijuana Of is that she public. primary importance agreed actively preparation marijuana assisted for sale and marijuana place as a use her residence as a warehouse for the money illegal conducting sales. The evidence further established that the purchased marijuana any her passed without need of express use, reference its she intended waited Vas defendant for the present during to arrive and she was addition, to Hite. expressly Louis Vas stated she was involved in the conspiracy. argues

Defendant next he there was insufficient directed the within meaning 9(b)(3) section of the Act 56½, (Ill. Rev. par. 709(b)(3)). believes this conclusion He dictated Vas money because received most from the sales and there is no him evidence that gave Kathi orders Jones. We this argument find to be meritless. We would first note that (b) (3) subsection is satisfied if defendant directed either the violation or the conspiracy. There can be 5(d) section question no defendant directed involving violation Hite and Watkins. He price, set the weighed fact, and made the In he transfer. only conspirator Moreover, was the in the involved transaction. is there sufficient evidence to establish that defendant conspiracy directed the well. Although no court has necessary construed what is prove to that one organized statute, has or directed a conspiracy under the Illinois in Court, Appellate District, Lucas Third 3d App. 309, 103, 337 N.E.2d has respect this question answered to the 1977, 56½, calculated criminal drug conspiracy (Ill. statute Rev. Stat. ch. par. 1405), which is substantially provision identical to the in here question. What applies vigor court there stated with equal conspiracy provision: ute

“The stat must read to be to those offenders be confined who be governing determining can said to a or influence exercise over narcotics violations.

$ # organized order to or directed the defendant either v e r shows, a conspiracy which to deli there must be evidence substance, that the defendant either had sufficient influence over systematize his their activities coconspirators position to be a to be give or or that would extent to orders instructions to some Lucas, 309, 314, 103, binding.” Ill. 337 N.E.2d 107. App. that defendant present adequately shows The evidence case his and that determining influence over cannabis violations exercised conspirators. The binding actions and decisions were on the other completely responsible making marijuana. for sales of the It be liberty price. He at to to whom sell and at what would decide to determining imagine power greater which would have difficult binding upon the on the violations more other influence conspirators. argument conspiracy charge

The defendant’s final that it his the State’s issues give objection is was error over his instead of alleged co-conspirators instruction which did not name the tendered instruction did. hampered is somewhat the fact question

Resolution of this calculated Jury Pattern Instructions on offense of there are no Illinois however, We, find that was not error conspiracy. criminal cannabis particularity is not of the fact that such give the State’s instruction view 6.04, required under IPI Criminal No. issues instruction (Ill. ch. of 1961 Rev. Stat. 8—2 of the Criminal Code under section 2). par. 8 — alleges further that it was error to refuse this instruction Defendant instructions, Nos. and five other tendered issues defendant’s instructions that the State must through jury which would have informed prove beyond a doubt the cannabis delivered reasonable possessed nonexempt cannabis. exemptions or is on defendant’s belief premised

This contention 56½, (Ill. Control Act Rev. exceptions the Cannabis under “cannabis” exceptions the definition of seq.), including the par. 701 et (primarily mature plant cannabis sativa relating parts to certain 56%, 703(a)), must (Ill. par. sterilized stalks and seeds as affirmative and that cross-examination be treated defenses Wist, revealing that he did test determine criminalist Andrew seeds, was sufficient maturity germination potential of stalks or the exemption. raise “affirmative defense” the Act interpretation section proper At issue here 1977, 56½, 716) provides part: in par. Rev. Stat. ch. exemption or negate any necessary State to “It is not for the ** * * * * under this Act. any in in

exception this Act upon person is any exception proof exemption burden of it.” claiming 389, 581-82, 353 N.E.2d 576, App. 41 3d (1976), Ill. People

In Biers language of Court, District, if 393-94, held that Third Appellate the Illinois burden ultimate literally place as to this construed so section were 227 upon the nature of the cannabis proof possible as to the innocent that defendant, requirement the constitutional the section would violate proving the defendant the State bear the ultimate burden of alleged crime. a doubt as element of the beyond reasonable to each perceived infirmity, the court construed order to avoid constitutional affirmative being equivalent making exemption as an the section a exemption that is made applicability defense so “once the trial, evidence, by the possibility by or otherwise at either reasonable defendant, proof State its burden of as to the State must meet usual 576, together App. 3d the issue other elements of the crime.” 582, 389, 394. N.E.2d Biers agree interpretation

We do not with the court’s of section in consequently refusing find that the trial commit court did not error proffered instructions. It is intend legislature evident did not exceptions Supreme to treat these as As the affirmative defenses. Illinois v. Smith 95, 472, Court in Ill. in noted 374 N.E.2d determining persuasion who had the exemptions burden of crime of unlawful 24— weapons (Ill. par. use of Rev. Stat. ch. 2(g)), legislature whenever an provision has intended to constitute affirmative defense crime has labeled it as such. That the instant exceptions to the Act are distinct from affirmative defenses under our statutory scheme and never an prove become issue for the State to Code, shown comparing section 3—2 section of the Criminal affirmative (Ill. 2). defense section Rev. Stat. par. 3 — 3—2 provides Section that once the issue involved in an affirmative raised, defense is together the burden is on the State issue with all other beyond elements of the offense To the reasonable doubt. contrary, provides section 16 negate any the State need never exemption or exception places trial and proof the burden of on person Furthermore, claiming it. holding in view of the supreme of our Smith that placing court proof upon the burden of as to the defendant exemptions weapons to the unlawful use of due offense does violate process long as required proof beyond so the State is to exact a reasonable crime, doubt of each element of we find the allocation of the burden contained in constitutionally jury section 16 is sound. The improperly was not instructed. denying

Defendant’s next contention is the court erred motion to dismiss II count of information No. 77-CF-17. The motion alleged that possession of unlawful of cannabis with intent deliver to a person years less than 18 age violation of section 5 and 56½, section 7 707) of the Act pars. 705 and did not state against offense. Section 5 the Act is a general prohibition 228

manufacture, delivery possession with intent to deliver or manufacture penalties depending provides graduated cannabis which on for amount cannabis in a 7 is a particular special involved offense. Section that penalty provision provides pertinent “[a]ny enhanced person years by is at 18 5 this age who least who violates section Act years to a 18 is at 3 delivering person age cannabis under who least years may up junior imprisonment sentenced to for a term to twice (Emphasis the maximum term 5.” otherwise authorized section 1977, 56½, added.) (Ill. par. 707(a).) ch. Defendant contends language plain provision application of this limits its to the delivery. language We a agree. offense of The of the statute manifests purpose drug more punish severely only to those older dealers who that there may deliver cannabis to minors in order be some deterrence marijuana trafficking youngsters. unsophisticated impressionable We, however, proper disposition feel here is to reduce offense grams than 500 of a possession unlawful with intent to deliver more 1977, 56½,par. 705(e)). Stat. containing (Ill. substance Rev. ch. although The this the trial court jury returned a as to offense verdict addition, all impose did a thereon. when references not sentence count, the instant allegations section 7 and related to are deleted from properly charges possession intent to offense of with deliver proscribed by 5(e). judge section imposing Since the believed he was provision setting sentence under the term of enhancement imprisonment possession with intent to years of one five on the deliver offense, resentencing upon we must vacate and remand for the sentence 5(e) section guilty verdict returned on the “lesser” offense described 56½, 1977, par. 705(e). Stat. of the Act. Ill. Rev. ch. 838, 551, Ill. N.E.2d

Citing King (1977), 2d possession stand convicted of both defendant contends he cannot delivery both possession to deliver cannabis and cannabis and with intent agree. We conspiracy. of cannabis and criminal cannabis calculated with King multiple The rule of is that convictions concurrent barred than one from the same sentences are when more offense is carved multiple are physical arising when acts act or some of the offenses (66 Ill. 363 N.E.2d lesser included offenses definition. charges both involved 844-45.) prohibition applicable This is sets possession this has error with case. The State conceded charges are accept possession charges, and we that concession. Both in act, is lesser possession of cannabis physical based on the same Consequent intent to deliver cannabis. possession offense of cluded for posses support is the conviction ly, since the evidence sufficient Stat. (Ill. of cannabis Rev. grams sion deliver with intent to over and sentence 56½, 705(e)), must vacate the conviction par. we possession of more than 500 of cannabis Rev. 56½, 704(e)). par. State, however, delivery not error does concede as to the King charges argues but rather does decision not

apply agree to these offenses. While we State that these offenses act, physical agree were not carved from we the same cannot instant particular is a lesser included offense Illinois, charge. In as one which included offense defined * * * by proof established than all the facts same or less “[i]s than required that which is to establish the commission the offense of * * 9(a); People Lyons v. 1977, 38, *.” charged (Ill. par. Rev. Stat. ch. 2— 193, (1975), App. 677.) way, 26 Ill. 3d 324 N.E.2d Stated another for an another, greater offense to be lesser offense and within included offense must include every element of the plus lesser offense one or more (People Thompson (1977), 795, other elements. 55 Ill. App. 3d 371 N.E.2d 326.) The instant conspiracy proof cannabis required offense of elements, three delivery grams of more than 30 more than 500 not grams Watkins, of cannabis to delivery and others. two Since Jim Watkins offense by proof established less than all of the facts required offense, conspiracy conspiracy to establish the cannabis every delivery offense plus included element of the offense two other elements, delivery was an included and it was to enter offense error judgment both on verdicts. We vacate the therefore conviction delivery grams sentence for than 30 of more but not more than 500 cannabis to Watkins. conviction, Since we have the delivery vacated we need consider whether necessary the elements for application penalty of the enhanced provision 1977, (Ill. 56½, Rev. Stat. ch. par. 707(a)) sufficiently were proved respect with charge. to this final appeal

The issue on is whether abused its court in denying probation. discretion We did not. The defendant find that it reviewing role of a respect court with the denial a sentence of probation may only a narrow one. It whether court determine failed to exercise in arbitrary denying discretion acted in an manner (People v. Rege probation. 473, 537; 2d N.E.2d v. Bolyard (1975), 61 Ill. 168.) remedy The either N.E.2d case, event is to remand In sentencing hearing. new the instant cannot be arbitrarily probation said defendant on court denied since, statute, cannabis by prohibited offense it was sentencing probation. convicted of to sentence of par. 5—3(d)(1).) Nor can it be said 1005 — court in an arbitrary probation possession acted manner in denying on with 6—1(a)(3) intent finding pursuant to deliver offense to section 5— 1005— par. (Ill. Rev. Code of Corrections of the Unified involved, a sentence cannabis 1(a) (3)) that in of the amount of view 6 — offense. the defendant’s seriousness of probation deprecate would court reasons, of the circuit judgment affirm the we foregoing For criminal cannabis the calculated County respect White respect to offense; the court with judgment of we reverse the grams than 500 but not more grams than 30 of more offenses, and grams cannabis than possession of more cannabis the court judgment of affirm as modified the we cannabis offense than 500 intent to deliver more possession with alone. resentencing on that offense this cause for and remand and remanded. part, reversed Affirmed KASSERMAN, J., concurs. MORAN, dissenting: GEORGE

Mr. PRESIDING J. JUSTICE by the State proof offered was insufficient my opinion there Watkins delivered to that the substance beyond a reasonable doubt prove that defendant fact, cannabis, insufficient was, was also and there conspiracy. a calculated criminal adequate circumstantial majority holds there beyond a reasonable doubt introduced the State to was, fact, in cannabis. Watkins substance delivered to circumstantial direct and between “The basic distinction directly testify the witnesses in instance evidence is that the former in while proved, main to be knowledge to the facts as of their own facts and circumstances given is of proof the case latter reasonably facts which connected jury may infer other the ** *. mankind. follow, experience of the common according to open is not evidence circumstantial competency The of nature of the which the evidence it is the best question, provided a material of that evidence disclosed direct admits. When is case that fact existence, evidence in circumstantial probably fact the for the absence accounting to without cannot be resorted (1967).) 2d Evidence §264 (29 Am. direct evidence.” Jur. whether as to direct evidence possessed State In this case the deliberately Watkins was or substance delivered Therefore, by evidence circumstantial it. not introduce did fact was insufficient. case, argued attorney the defense State’s

At of the the close judge trial People had failed to establish the corpus delicti of the crime because jury any there no submission to the substance purporting alleged by to be that was to have been received words, Watkins. In purported by other cannabis obtained Hite from delivered to Watkins was never admitted into evidence. Jones judge if prosecution asked the there was actual test of the tests, Attorney substance and responded the State’s there were the tests had not been “admitted” and State’scase rested on opinion I by Jones, of Hite and the confirmation defendant. emphasize that the State argue majority did not as the now holds substance admissible because it came from the same batch. Since there was direct in State possession of the substance, concerning identity deliberately and since the State evidence, withheld that presumption there arises the that the test would Card, have been unfavorable to the State. Illinois Manual Rule Evidence 22 (1963)and 29Am. seq. (1967), 2d Evidence et where it is said: §178 Jur.

“It is a well-established rule where relevant evidence which properly part party would of a is within case the control of it, whose naturally produce interest would be to and he fails to so, do without satisfactory explanation, jury may draw inference that such evidence would have been unfavorable to him.” reasons,

For the foregoing I prove would hold the State failed to beyond a reasonable doubt that the substance delivered to Watkins was cannabis.

I would also hold that produced there was insufficientevidence State to aof calculated criminal cannabis charged as in the information which reads: Sutton, H. Attorney County,

“Thomas in and for said State’s Court, proper person, again his own comes now here into Illinois, authority the name and State of gives the Court to be informed and understand that BRAD JONES, heretofore, to-wit: day on or about the 15th March A.D. March, and continuing until day the 25th in the County of White and State of Illinois aforesaid did commit the offense of Unlawful Calculated Criminal Conspiracy, Cannabis Statutes, 56/2, violation of Chapter 709(b) Illinois Revised Section defendant, in that the said of a conspiracy undertaken with Vas, persons, two other Kathi and Louis violation Statutes, Illinois Chapter 705(d), Revised 56Mof knowingly Section unlawfully Watkins, and delivered to grams, more than 30 but Jim than grams Cannabis, not more 500 of a substance containing 232 Act, and he than in the Cannabis Control

otherwise as authorized said violation.” directs language prove plain

The of this information mandates the State to that Brad 30 than 500 delivered more than but more Jones grams of and that he did so containing substance cannabis to Watkins as of Kathi and Vas. conspiracy a undertaken with Louis proof

“In a be prosecution conspiracy the should restricted correspond the must properly proof issues made the case. indictment, with, support, the the and and material averments of charge guilty particular must establish that the is the defendant prove therein. It is not to sustain a conviction to made sufficient charge guilty that the defendant is of some other or that L. 11 Ill. guilty generally bad or criminal conduct.” & Conspiracy (1955). Prac. §88

In People (1907), v. 229 Ill. the court said: Lowell charges conspiring “This indictment to cheat defendants defendants, Jackson, defraud who unknown or them, shows, proof policy far as the he took a either of so before * * * It companies. allegations one of their cannot be said cheat are conspiracy a intent to and defraud Jackson cheat proof public sustained intent to and defraud the ** * sufficient, a generally. In criminal it is not sustain cases charge, prove conviction on that the defendant particular guilty charge general some or of bad and criminal other conduct, guilt particular but must proof establish his 237. charge forth in the Ill. set indictment.” (1924), In Ill. said: People v. Mader court be than conspiracy crime of there must more “To constitute the thereof, before a defendant can person guilty one two must are convicted of show there It is not conspiracy. of such persons guilty more [Citation.] particular charge prove on a sufficient sustain conviction generally other that the defendant is of some conduct, guilt of must establish his bad and criminal Ill. People, in the v. particular charge indictment. Lowell Ill. 227.” 313 285. 87, the said:

In court App. People McChristian object conspiracy, sustain conviction for “To laid in the proved has out indictment. to be conspiracy, case, object since the [Citation.] persons, named murder of five according charge, was the in the fired Bailey guns that when defendant State had they did riding, were the five direction automobile knowledge purported so with victims were there. [Citations.] ^[*] * * *. A conspiracy against a number of individuals must be # »

proved by against shows that the charged; all as against single person cannot be by proof against public sustained of a conspiracy generally.” Ill. App. 3d 90-91. proof defendant, this case there was at trial Jones, no Kathi or

Louis Vas knew Watkins personally or even knew existence Jim prior 24,1977. alleged delivery on March Nor was there a scintilla of evidence that defendant conspired with Louis Vas Kathi deliver cannabis to Watkins on March 1977. Jim There was also no that the defendant governing exercised a determining influence on alleged. undisputed the transaction It is plan to have Watkins obtain cannabis from the defendant was planned by the office the Sheriff of County, White rather than alleged Therefore, co-conspirators. the defendant did not exercise a governing determining influence on the alleged required transaction 9(b) 56½, section the Cannabis Act (Ill. Control par. 709(b)). PATE, Pate, Deceased,

BONNIE Indiv. and as Adm’r Estate of John al., Plaintiff-Appellant, v. THE Defendants-Appellees. CITY OF SESSER et Fifth District No. 79-31 Opinion July 1979. filed

Case Details

Case Name: People v. Jones

Court Name: Appellate Court of Illinois

Date Published: Jul 31, 1979

Citation: 393 N.E.2d 1132

Docket Number: 77-331

Court Abbreviation: Ill. App. Ct.