*1 For stated, reasons judgment the circuit court of La Salle County affirmed. The clerk of this court is directed to enter an order setting Tuesday, March 1990, as the date on which the sentence en tered in the circuit court of La Salle is to County be car ried out. The defendant shall be executed lethal by injec tion in the manner provided by section 119—5 of the Code of Criminal Procedure of 1963 Rev. Stat. A5). certified copy mandate of 119 — this court shall be transmitted the clerk of this court to the Director Corrections, to the warden of State- ville Center, Correctional and to the warden of the insti tution wherein the defendant is confined.
Judgment affirmed. CALVO, JJ., RYAN and took no part the consider- ation or decision of this case.
(No. 67757 . THE ILLINOIS, PEOPLE THE STATE OF OF Appel-
lee, PINTOS, v. OSCAR Appellant.
Opinion December filed *2 MILLER, J., specially concurring. McLeese, of D. Decker and Richard M.
Thomas Associates, Ltd., Chicago, Thomas D. Decker & appellant.
Neil F. General, Hartigan, Attorney Springfield, Partee, Cecil A. State’s Attorney, Chicago (Terence Madsen, M. Assistant General, of Attorney Chi- cago, and Inge Fryklund Grosch, Adam D. Assistant State’s Attorneys, counsel), for the People.
JUSTICE CLARK delivered the opinion the court: Defendant, Oscar was convicted in the circuit court of Cook of intent to deliver more County than 30 grams of a controlled substance Rev. Stat. 56½, 1401(a)(2)). Pintos’ conviction was affirmed by (172 court. Ill. 1096.) We granted defendant’s for leave to petition (107 Ill. 2d R. appeal 315). Pintos’ sole is that argument appeal the evi dence in his case was insufficient convic tion.
These arose proceedings transaction drug which took place October 13 and October *3 The State’s witnesses trial consisted of four special from the agents Northeast Enforcement Metropolitan (MEG), two from the Federal En- Group agents Drug forcement and a forensic scientist (DEA) from Agency the Illinois State Police. Their Department testimony Diaz, that a established October Manuel Florida resident, with an began under- telephone negotiations cover from the MEG for the sale of cocaine. Diaz agent to deliver of cocaine eventually agreed eight kilograms to the agent Chicago. 13, 1984, from the evening
On October agents MEG and the DEA observed Diaz’s arrival from Florida at O’Hare International Airport. followed agents Rosemont, Diaz to the Hotel Illinois. After Westin that Diaz had reserved rooms 808 and 809 of learning for that set surveillance evening, agents up hotel across the and which were directly in rooms 818 hall 808 and 809. from rooms 13, 1984, Diaz met
Later in the October evening restaurant at a agent Chicago undercover MEG that he could of co- eight kilograms and told him deliver take $340,000. for the sale to They arranged caine for he Diaz then told the morning. agent the next place evening had to back at the hotel at 11 “be- p.m. be who were driving cause he had to meet drivers him Florida, coke from had to there to meet up [sic] in his room.” 14, 1984,
At a.m. on agents about 1:40 October observed, DEA a through the MEG and peephole of Diaz’s standing door room two men outside man, room One later identified as Ramon (room 809). Sosa, was a box and a bag. gift-wrapped of the box were could see what flaps open looked like out of the box. crumpled sticking newspapers Defendant, Sosa; Pintos was car- Oscar was with a Pintos knocked on rying garment flight bag. bag and Diaz let the men into his room. one door About later, all minute three men left Diaz’s room. contin- ued to the box now (the “compressed carry down”) bag, and his and Pintos continued to carry unlocked, two Diaz then Sosa and Pintos en- bags. tered, the rest room where Sosa and spent Diaz returned to his alone. The card- night. board box remained in the room with Sosa and Pintos. 14th,
At 8 a.m. on the morning approximately Diaz went into the room where Sosa and Pintos had Room service delivered food to the room spent night. and, thereafter, Diaz left and returned to his shortly *4 then left his room and walked (room 809). Sosa for several minutes before gone down the hall. He was he returned to room 808. a.m.,
At about 9:30 the undercover MEG agent who had met with Diaz at the restaurant the previous night knocked on Diaz’s door. Diaz let the into his room agent and then went to room where he knocked on the door and was admitted into the room. Diaz then left that room, leaving door slightly Diaz to open. returned his room (room 809), gift-wrapped box which Sosa had been holding before; night end box were now open. room,
Back in his own Diaz the box for the opened undercover The agent. box contained nine individually wrapped of cocaine. The kilograms undercover agent tested of one of the part of cocaine and left Diaz that he telling would return shortly left, As he money. undercover agent gave a sig- nal to the agents in rooms 818 and 819 that the drugs were in room undercover then knocked on Diaz’s and, it, door when Diaz opened agents from rooms 818 and 819 Diaz placed under arrest and confiscated the cocaine. The agents subsequently knocked on the door to room which had been shut arrested, while Diaz was being arrested Sosa and Pintos.
Sosa and Pintos were with intent to charged deliver more than 30 of a grams controlled substance Rev. 56V2, Stat. ch. par. and with 1401(a)(2)) calculated criminal 56½, Rev. drug conspiracy (Ill. Stat. 1405). They tried Pintos in a simultaneously, bench trial and trial. Pintos was found jury of intent to deliver and not con guilty guilty criminal to spiracy was sentenced eight years’ imprisonment. court affirmed his conviction. 3d 1096. the evidence was insufficient argues states, his conviction. Pintos and we agree, in his case is circumstantial. Ac- entirely
291 that the should be re- Pintos claims evidence cordingly, of innocence viewed under reasonable hypothesis State, hand, that the argues standard. The on the other reasonable of innocence test is no via-^ hypothesis longer ble in Illinois and this court to the reason- urges apply able doubt test to review the of the evidence. sufficiency true, asserts,
It is this as Pintos court had considered it past proper “unquestioned” standard of review in circumstantial evidence wholly cases was the reasonable of innocence test. hypothesis 68, 79; v. Willson 401 Ill. see also (People (1948), People 241, 249; v. Rhodes 85 Ill. v. (1981), People 2d Lewellen However, in v. (1969), 78.) People Linscott Ill. (1986), 114 2d this court the rea tacitly rejected sonable of innocence standard of hypothesis review by to affirm utilizing reasonable doubt test a conviction that had been based circumstantial evidence. entirely (See Linscott, C.J., (Clark, 2d at 353 dissenting).) This court’s rejection reasonable of in hypothesis nocence standard of in review circumstantial evidence cases was made in v. explicit People Eyler (1989), 133 Ill. 2d 191-92. In light our decisions in Eyler Linscott, we agree the State: the reasonable hy of innocence pothesis standard of review is no vi longer Instead, able Illinois. we find that the reasonable as doubt test set forth in v. People Collins 106 237, 261, Ill. 2d should the suffi applied reviewing in all criminal ciency whether evi dence is direct or circumstantial.
Pintos claims that even under the reasonable doubt test, the evidence in his case is insufficient to conviction. The elements crime of unlawful posses- sion of narcotics with an intent to deliver are: (1) defendant had narcotics; knowledge presence the narcotics (2) the immediate control or pos- the defendant; session of the defendant intended (3) 292 v. (See People Embry
to deliver the narcotics. Ill. 3d 331, 334; Knight (1985), Ill. People 2d fails to estab that the evidence 259.) argues of the co presence he had knowledge lish that caine. do not agree. We case, light this when viewed
The evidence in Collins, 106 Ill. (see to the prosecution most favorable Sosa drove up that Pintos and 261), establishes They ap of cocaine. with nine from Florida a card hotel with Sosa at Diaz’s peared *6 of cocaine. the nine box that contained board then knocked Pintos open. The to the box were flaps allowed into the and Sosa were door and Pintos Diaz’s men exited thereafter, all three Shortly Diaz. by door, Diaz un next where to a room the room and went entered the The three men then the door. locked cardboard box. the now-closed with Sosa carrying morning, room. The next night and Sosa spent hotel room to pur to Diaz’s went an undercover Diaz then of cocaine. him eight kilograms chase from the card got room and to Pintos and Sosa’s went back it brought in it and back with the cocaine board box the cardboard box the undercover agent. open. this time were could infer from trier of fact find that a rational
We the card knowledge that Pintos had this evidence there mere fact that cocaine. board box contained what carried or saw that Pintos evidence was no direct law, a not, preclude as a matter box does was in the court stated As this knowledge. that he had finding knowledge 334, element Ill. 2d at 20 Embry, “[t]he it be may but proof, of direct susceptible ever hardly or conduct acts, declarations proved by may fairly inference which the the accused narcotics at existence he knew of the drawn that added.) (Emphasis were found.” where they the place v. 23 Ill. 2d (See People (1961), also Jackson of existence of narcotics can be (knowledge proven by defendant’s behavior showing suspicious vicinity v. Mack narcotics); People (1957), conduct, 159-61 Pintos’ (same).) accompanying with Diaz and Sosa repeatedly meeting during time Diaz was transaction with the arranging drug undercover the inference that he agent, supports had of the contents of knowledge the box. we Accordingly, affirm the court’s decision Pintos’ affirming conviction. v. Jackson 23 Ill.
People People 2d Boswell cited Pintos in of his claim that support the evidence here is insufficient to establish that he knowledge had of the cocaine’s pres ence, are not inconsistent with our here. determination The issue in case, those unlike the instant not was whether the State had established the requisite knowl edge conviction for possession narcotics. Instead, those cases involve the of whether the question element of had possession been established merely hold that a narcotics possession conviction cannot stand where there has no been the defendant showing *7 ever the narcotics possessed at issue. (Jackson, at 364; Boswell, 19 Ill. 3d at 621.) has not here that the argued evidence failed to show that he pos sessed the cocaine.
For reasons, the the of foregoing judgment the appel- court, late the affirming conviction of Oscar affirmed.
Affirmed. MILLER, JUSTICE specially concurring: I concur in the court’s but write judgment separately make clear basis for my agreement. People Bryant dis 113 Ill. 2d we
In innocence” of theory with the “reasonable pensed on cir instruction jury contained in the pattern charge use in cases which Intended for cumstantial evidence. accused, guilt evidence of there was no direct “You jurors, advised that of the instruction portion the facts or unless guilty find the defendant should not reasonable theory exclude every circumstances proved Instructions, Criminal, Jury Pattern (Illinois innocence.” 1981).) Bryant quoted States United ed. (2d No. 3.02 instruction jury of such disapproval Court’s Supreme v. United States Holland 139-40, 348 U.S. Consistent S. 137-38. 150, 166-67, 75 Ct. 99 L. Ed. Holland, Bryant standard that a single noted in we of evi type all regardless governs proof “reasonable theory adduced, and we criticized dence at misleading as an obscure charge of innocence” standard. We doubt single to define the reasonable tempt innocence” theory “reasonable concluded Bryant, used. longer no should charge 510-12. our decision clear, following
It have been should Bryant, innocence” for- “reasonable theory as ei- process used mulation could not be or a stand- separate of reasonable doubt ther a definition As Bryant no intrinsic indicated, there is ard of review. circumstantial based among prosecutions difference evidence, on direct based evidence, prosecutions By of the two. on a combination based prosecutions re- insufficiency token, evidentiary claims of all same standard, what- a single under decided should be view gained can be Nothing evidence. nature of the ever the standard redefining applicable on appeal rejected we have misleading language obscure use. jury