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Laws-info.com » Cases » Illinois » 2nd District Appellate » 2003 » People v. Brake
People v. Brake
State: Illinois
Court: 2nd District Appellate
Docket No: 2-01-1231 Rel
Case Date: 01/27/2003

No. 2--01--1231


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
           Plaintiff-Appellee, )
)
v. ) No. 00--CF--2302
)
JASON T. BRAKE, ) Honorable
) Mark W. Dwyer,
          Defendant-Appellant. ) Judge, Presiding.

 

JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Jason T. Brake, appeals his conviction forobstructing justice (720 ILCS 5/31--4(a) (West 2000)), contendingthat the State failed to prove him guilty of that offense beyond areasonable doubt. We affirm.

On September 6, 2000, defendant was driving his father's car when he was stopped for driving a car with only one workingheadlight and having a cracked windshield. Upon approachingdefendant, the officer noticed a protrusion in defendant's cheek,as if there were something in defendant's mouth. The officereventually learned that defendant's license was suspended andplaced defendant under arrest for driving while his license wassuspended. Upon arresting defendant, the officer placed defendantin handcuffs. The officer asked defendant to open his mouth, anddefendant complied. The officer observed a tan bag in defendant'smouth. Defendant swallowed the bag despite the officer's attemptto prevent him from doing so. The officer summoned an ambulanceand again looked in defendant's mouth, observing a white chunkysubstance. Defendant was placed in the ambulance and transportedto the hospital. There, the hospital staff introduced charcoal toprevent whatever defendant had swallowed from being absorbed intohis system, and defendant vomited. The tan bag defendant hadswallowed was thereupon recovered by the officer.

Analysis of the contents of the tan bag revealed the presenceof heroin metabolites, morphine, and other controlled substances. Defendant was charged with, among other things, possession of acontrolled substance (720 ILCS 570/402(c) (West 2000)) andobstruction of justice based on concealing evidence.

On December 6, 2000, the trial court heard and denieddefendant's motion to suppress physical evidence and statements;the court determined that no probable cause existed to arrestdefendant for driving under the influence, and it dismissed thatcharge.

On July 20, 2001, the cause proceeded to a jury trial anddefendant entered a plea of guilty to driving with a suspendedlicense, at which time the other minor traffic offenses weredismissed. Prior to trial, defendant moved to dismiss the chargeof obstructing justice. The court denied the motion, finding thereto be a question of fact for the jury. Defendant also asserted thedefense of outrageous conduct by the State in the administration ofthe charcoal substance. The court found that this was a questionof law and found that the use of the charcoal substance was amedical necessity. The trial court granted the State's motion inlimine requesting that defendant be precluded from arguing that theState had engaged in outrageous conduct. Following thepresentation of evidence, the jury found defendant guilty of bothpossession of a controlled substance and obstructing justice.

Defendant filed a motion for a new trial. On October 24,2001, the trial court denied defendant's motion and sentenceddefendant to probation for a term of 24 months and to periodicimprisonment in the Du Page County jail for a period of 160 days. As part of defendant's sentence, he was to be placed into a drugtreatment program, if eligible. Defendant timely appeals.

On appeal, the sole issue is whether defendant was provedguilty beyond a reasonable doubt of the offense of obstructingjustice based on his concealment of the tan bag containing acontrolled substance. When reviewing a challenge to thesufficiency of the evidence, the question we must answer iswhether, after viewing the evidence in the light most favorable tothe prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. Peoplev. Collins, 106 Ill. 2d 237, 261 (1985). We will not reverse acriminal conviction unless the evidence is so unsatisfactory orimprobable that it raises a reasonable doubt of the defendant'sguilt. People v. Frieberg, 147 Ill. 2d 326, 359 (1992).

Defendant argues that the act of swallowing the tan bag whilethe officer was aware of both the presence of the evidence and thefact that defendant had swallowed it was not an act of concealment. Because defendant was charged with concealing evidence and becausedefendant's actions did not actually conceal evidence, defendantargues that the State cannot prove that he obstructed justice byconcealing evidence as charged in the indictment.

Defendant analogizes this case to In re M.F., 315 Ill. App. 3d641 (2000). There, we held that the act of throwing away a Baggiecontaining a controlled substance did not qualify as "concealment"under the obstruction of justice statute. M.F., 315 Ill. App. 3dat 650. We reasoned that throwing "bags of drugs down from thelanding and onto the ground in the vicinity of and in view of thepolice officer who was shining a flashlight on respondent, saw hisconduct, and recovered the drugs within seconds of the act" was not"likely to either destroy the evidence or make recovery lesslikely." M.F., 315 Ill. App. at 650. We held that the State hadnot proved the respondent guilty of obstructing justice based ondiscarding Baggies containing a controlled substance. M.F., 315Ill. App. 3d 650. Defendant argues that the same reasoning shouldapply here because defendant swallowed the tan bag in the plainview of the officer; the officer was aware of the conduct and tooksteps to recover and did recover the evidence. Defendant alsoemphasizes that his actions were taken in relation to a current andongoing possessory crime, and not undertaken to conceal a completedcrime. See State v. Fuqua, 303 N.J. Super. 40, 47, 696 A.2d 44, 48(1997) (to avoid implicating the prohibition against self-incrimination, the term "concealment" must be "construed to referto evidence of a completed criminal act, not a current possessorycrime"). According to defendant, he could not conceal the bagwhere the officer was already aware of it and defendant's actionswere undertaken in the officer's presence. Further, defendantasserts that the reasoning of the New Jersey case, which refused tohold that "concealment" for the purposes of a statute similar toour obstruction of justice statute could occur in a currentpossessory crime, should apply here, where defendant's actionswere undertaken in front of the police. Defendant concludes,therefore, that there is insufficient evidence to support aconviction of obstruction of justice. We disagree.

While defendant correctly notes that M.F. held that the act ofthrowing away a Baggie containing drugs did not support a charge ofobstructing justice by concealment, defendant overlooks the factthat M.F. distinguished its facts from precisely the situation inthis case, where a defendant swallowed the evidence, and noted thatsuch conduct may constitute evidence tampering sufficient tosupport a conviction of obstruction of justice. M.F., 315 Ill.App. 3d at 649-50. While there is no case on point in Illinois,several other jurisdictions have considered whether swallowingevidence will support an obstruction of justice charge. State v.Mendez, 345 N.J. Super. 498, 785 A.2d 945 (2001) (dissipatingsuspected drugs by holding them outside window of moving carsimilar to swallowing evidence in attempt to conceal it and willsupport conviction of evidence tampering); Lewis v. State, 56S.W.3d 617 (Tex. Ct. App. 2001) (swallowing evidence sufficient tosupport evidence tampering conviction); Timberlake v. UnitedStates, 758 A.2d 978 (D.C. App. 2000) (swallowing evidencesufficient to support charge of evidence tampering); State v. Clay,51 Conn. App. 694, 724 A.2d 1134 (1999) (swallowing evidencesufficient to conceal or destroy evidence within meaning ofevidence tampering statute). We are persuaded that there is adistinction between throwing evidence away from the person, as inM.F., and swallowing evidence in the hopes that it will gounrecovered. Such conduct constitutes an attempt to alter,conceal, or destroy the evidence and will support a charge andconviction of obstructing justice.

It is undisputed that defendant swallowed the tan bag in hismouth at the time of the police investigation. That bag containedevidence of his possessory crime. Although defendant was currentlyengaged in a possessory crime, his action was designed to"destroy[], alter[], conceal[] or disguise[] physical evidence" ofthat offense. 720 ILCS 5/31--4(a) (West 2000). Because he engagedin such conduct, we find that there was sufficient evidence in thiscase to support defendant's conviction.

For the foregoing reasons, the judgment of the circuit courtof Du Page County is affirmed.

Affirmed.

McLAREN and GROMETER, JJ., concur.

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