THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCO SILVA, Defendant-Appellant.
No. 1-14-0695
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
December 2, 2015
2015 IL App (1st) 140695-U
JUSTICE FITZGERALD SMITH delivered the judgment of the court. Presiding Justice Mason and Justice Pucinski concurred in the judgment.
THIRD DIVISION. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 13 C3 30373. Hоnorable Bridget Jane Hughes, Judge Presiding.
¶ 1 Held: Evidence presented at trial was sufficient to prove that defendant had constructive possession of cannabis where defendant was the sole occupant of the car in which the contraband was found and the car smelled of burnt cannabis.
¶ 2 Following a bench trial, defendant Marco Silva wаs convicted of possession of cannabis and sentenced to two years of probation. On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt because he did not have exclusive control over the car where the cannabis was found. He also arguеs that the State failed to prove that he knew of the cannabis‘s presence. We affirm.
¶ 4 After 10 minutes, a second officer arrived and both officers approached the car. Langendorf told defendant that it was “time to go.” Defendant, who was on the phone at the time, ignored several requests from the officer to exit the car. Langendorf eventually “placed his hands” on defendant to get him out of the car. Defendant indicated that he would get out, but
¶ 5 On cross-examination, Langendorf explained that the smell of cannabis came from the car, not defendant‘s breath or person. He also testified that he found no items for the use of cannabis and did not see defendant make “furtive movement[s]” under the driver‘s seat. During the encounter, defendant repeatedly referred to the stopped car as “my car.”
¶ 6 Following the officer‘s testimony, the State entered a video of the incident from Langendorf‘s dashboard camera into evidence. The video begins shortly before defendant‘s car drove past the stop sign and ends as Langendorf drove away from the stop. When defendant was alone in his car, the video shows his silhouette frequently moving around. He bends downward
¶ 7 It was stipulated that a forensic chemistry expert tested the material within the clear plastic bags and found it to be positive for cannabis, which weighed a total of 107.21 grams.
¶ 8 Defendant testified that he shared the use of his father‘s car with several family members. His brother had the car for the whole morning on March 22, 2013. When defendant began driving the car at 1:30 p.m., he noticed that it smelled like someone had smoked cannabis in it. He did not know that there was cannabis in the car. On crоss-examination, defendant testified that he told the officers to let his mother take the car because his father needed to be picked up from work.
¶ 9 The court found defendant guilty of possession of cannabis. It noted that defendant‘s failure to “immediately stop” for the officer and the odor of cannabis in the car supported a finding that defendant knew about the drugs. It also explained that the drugs’ location “right underneath the driver‘s seat” and defendant‘s references to “my car” supported its finding of guilt. Defendant appeals.
¶ 10 On appeal, defendant solely contends that the State failed to prove beyond a reasonable doubt that he was in possessiоn of cannabis. He argues that the evidence does not support a finding of constructive possession because the drugs were not in sight of the driver‘s seat, other people had access to the car, and there was no indication that he touched or tried to conceal the drugs. The State responds that ample circumstantial evidence supports a finding that defendant knew the drugs were present and had exclusive control over them. It notes that defendant failed to immediately stop his car, acknowledged the car smelled like cannabis, moved suspiciously
¶ 11 Due process requires the State to prove each element of a criminal offense beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004), citing In re Winship, 397 U.S. 358, 364 (1970). When reviewing the sufficiency of evidence, a reviewing court must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 313 (1979); see also Cunningham, 212 Ill. 2d at 278. A reviewing court will not overturn a guilty verdict unless the evidence is “so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant‘s guilt.” People v. Collins, 214 Ill. 2d 206, 217 (2005). On appeal, the reviewing court must resоlve all reasonable inferences in favor of the prosecution. Cunningham, 212 Ill. 2d at 280. This court may not retry a defendant on appeal. People v. Milka, 211 Ill. 2d 150, 178 (2004).
¶ 12 Defendant was found guilty of possession of cannabis.
¶ 13 We find that the State presented sufficient evidence that defendant constructively possessed more than 30 grams of cannabis. Defendant was the driver and sole occupant of the car at the time of the traffic stop, and 107.21 grams of cannabis were found immediately beneath his seat. Thus, he had exclusive and immediate control over the location where the drugs were found. Given the obvious odor of burnt marijuana and defendant‘s suspicious behavior before аnd during the traffic stop, a rational fact-finder could infer that defendant knew of the drugs’ presence.
¶ 14 Defendant first argues that he did not have exclusive control over the car because other family members frequently drove it, including his brother that morning. Initially, we note that the only evidence that someone else drove the car that day came from defendant‘s own testimony. The fact-finder is not required to accept a defendant‘s self-serving testimony as true. See People v. Villarreal, 198 Ill. 2d 209, 231 (2001). While it is undisputed that the car was registered to defendant‘s father, both Langendorf‘s testimony and the video evidence show that defendant initially and repeatedly referred to the car as his own. Taking the evidence in the light most
¶ 15 Defendant analogizes his case to People v. Wolski, 27 Ill. App. 3d 526 (1975). In Wolski, the defendant was convicted of possession of marijuana after police officers found drugs in an apartment he shared with his brother. Id. at 527. The defendant was not present when thе officers searched the apartment and testified that other individuals frequently used the apartment. Id. This court found that the evidence presented was insufficient to support the defendant‘s conviction. Id. at 528. Here, unlike in Wolski, Langendorf found the contraband while defendant was physically present and the sole occupant of the car. Moreovеr, as we discuss below, there was sufficient circumstantial evidence of defendant‘s knowledge of the cannabis. Therefore we find Wolski readily distinguishable.
¶ 17 Defendant next argues that the State failed to prove that he knew the drugs were present; however, we find the State presented sufficient circumstantial evidence of defendant‘s knowledge. First and foremost, both Langendorf and defendant testified that the car smelled of cannabis. While defendant argues that the smell of “burnt cannabis” is not evidence that he knew there was unburned cannabis in the vehicle, we disagree. Defendant admitted that he smelled burnt cannabis and cannabis was found in his immediate proximity. Therefore, a fact-finder could reasonably infer that defendant knew that there was cannabis in the car. Furthermore, defendant‘s suspicious behavior provides additional circumstantial proof of his knowledge. People v. Jones, 2014 IL App (3d) 121016, ¶ 26 (“A trier of fact is, indeed, entitled to draw a commonsense inference that a defendant‘s suspicious behavior resulted from his knowledge that he was committing a crime“). Langendorf testified, and the video showed, that defendant did not immediately stop when the officer attempted to pull him over, but drove away from the officer once the police car stopped behind him. During the stop, defendant moved frequently, including bending downwards several times. While it is unclear from the video where exactly defendant is moving, it is clear that he moves downwards and the drugs were later found directly beneath
¶ 18 Defendant argues that there are other potential inferences to be drawn from the cannabis‘s odor and defendant‘s behavior. While he raises several alternate explanations, the trier of faсt was not required to accept such explanations. Jones, 2014 IL App (3d) 121016, ¶ 33. We are required to resolve all reasonable inferences in favor of the prosecution on appeal. Cunningham, 212 Ill. 2d at 280.
¶ 19 Defendant also argues that People v. Bailey, 333 Ill. App. 3d 888 (2002), is instructive. In that case, the defendant was the passenger in another man‘s car when police officers found a gun beneath the defendant‘s seat. Id. at 890-91. Thе gun was not visible to the defendant and he made no movements when approached by the officers. Id. The appellate court considered four factors in finding that there was insufficient proof that the defendant knew of the firearm‘s presence: “(1) the visibility of the weapon from defendant‘s position in the car, (2) the period of timе in which the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon.” Id. at 891-92.
¶ 20 We find that a rational fact-finder could find beyond a reasonable doubt that defendant maintained immediate and exclusive control over the car where the cannabis was found and had knowledge of the contraband. Consequently, the State provided sufficient proof that defendant maintained constructive possession over the cannabis.
¶ 21 For the foregoing reasons, we find that the State proved beyond a reasonable doubt that defendant was in possession of cannabis. Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 22 Affirmed.