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People v. Hensley
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0651 Rel
Case Date: 12/10/2004

NO. 4-03-0651

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

 
THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee
,
                         v.

RICHARD R. HENSLEY,
                         Defendant-Appellant
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Appeal from
Circuit Court of
Livingston County
No. 01CF227

Honorable
Harold J. Frobish,
Judge Presiding.


JUSTICE STEIGMANN delivered the opinion of the court: In January 2002, the State charged defendant, RichardR. Hensley, with (1) delivery of a controlled substance (5 gramsor more but less than 15 grams of a substance containing methamphetamine) (720 ILCS 570/401(c)(6.5) (West 2000)) (count I), (2)delivery of a controlled substance (less than 5 grams of asubstance containing methamphetamine) (720 ILCS 570/401(d)(iii)(West 2000)) (count II), and (3) calculated criminal drug conspiracy (delivery of 5 grams or more but less than 15 grams of asubstance containing methamphetamine as part of a conspiracyundertaken with two other persons) (720 ILCS 570/405(a) (West2000)) (count III).

In April 2002, defendant pleaded guilty to count II. Following a trial that same month, a jury convicted him of countsI and III. In May 2002, the trial court sentenced defendant toseven years in prison on count II and eight years in prison oncount III, with those sentences to be served concurrently. (Thecourt found that count I was a lesser-included offense of countIII and imposed no sentence upon count I.)

Defendant appeals, arguing that (1) the State failed toprove him guilty beyond a reasonable doubt of calculated criminaldrug conspiracy and (2) the trial court (a) erred by admittingother-crimes evidence and (b) abused its discretion by sentencinghim to seven years in prison on count II. We disagree andaffirm.

I. BACKGROUND

In January 2002, the State charged defendant with (1)delivery of a controlled substance on October 31, 2001 (5 gramsor more but less than 15 grams of a substance containing methamphetamine) (720 ILCS 570/401(c)(6.5) (West 2000)) (count I); (2)delivery of a controlled substance on November 2, 2001 (less than5 grams of a substance containing methamphetamine) (720 ILCS570/401(d)(iii) (West 2000)) (count II); and (3) calculatedcriminal drug conspiracy on October 30, 2001, through November 2,2001 (delivery of 5 grams or more but less than 15 grams of asubstance containing methamphetamine as part of a conspiracyundertaken with two other persons) (720 ILCS 570/405(a) (West2000)) (count III).

In April 2002, defendant pleaded guilty to count II,and the case proceeded to a jury trial on the remaining counts.Connie Best, defendant's sister, and Sarah Hensley, Connie'sdaughter and defendant's niece, testified, in pertinent part, asfollows. In March 2001, defendant began supplying methamphetamine to Connie, who lived with Sarah. In the summer of 2001,Sarah began using and selling the methamphetamine that defendantwas supplying to Connie. In August 2001, after Connie learnedthat Sarah had been using and selling the methamphetamine, Connieand Sarah, together, began selling methamphetamine that defendantdelivered to them. Connie and Sarah both testified that defendant (1) was the only person that supplied them with methamphetamine and (2) knew that they were selling the methamphetamine hedelivered to them.

In August and September 2001, Connie and Sarah engagedin a series of methamphetamine deliveries to Bloomington undercover police officer Troy Doza. Sara testified that her lastdirect involvement with a methamphetamine delivery was a September 26, 2001, delivery of methamphetamine to Doza. On October30, 2001, Doza telephoned Connie and ordered 10 grams of methamphetamine from her, to be delivered to him on October 31, 2001. On October 31, 2001, Officer Doza arrived at Connie's residenceand saw Connie standing outside. Connie entered her residence"briefly" and then walked outside again and delivered methamphetamine to Doza, who was sitting in his car. Shortly after Connie's October 31, 2001, delivery, police arrested Connie andSarah (who testified that she was inside Connie's residence whenConnie delivered the methamphetamine to Doza).

Following their arrest, Connie and Sarah agreed tocooperate with the police to obtain leniency. As part of theagreement, Connie allowed the police to install video surveillance equipment in her kitchen. On November 2, 2001, policevideotaped defendant's delivery of methamphetamine to Connie inher kitchen in exchange for $700 that had been provided to her byofficers. Sarah was present at the November 2, 2001, deliveryand placed the methamphetamine that defendant delivered in abasket. She also told defendant that she had gotten the $700 forthe methamphetamine from a bank.

Based on this evidence, the jury found defendant guiltyof count I (delivery of a controlled substance on October 31,2001) and count III (calculated criminal drug conspiracy onOctober 31, 2001, through November 2, 2001). The trial courtsentenced defendant as earlier stated.

This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant first argues that the State failed to provehim guilty beyond a reasonable doubt of calculated criminal drugconspiracy on October 30, 2001, through November 2, 2001, becausethe State failed to prove that at least two other individualswere involved in the conspiracy with him from October 30, 2001,through November 2, 2001, as required under the calculated-criminal-drug-conspiracy statute (720 ILCS 570/405(b)(2) (West2000)). Specifically, he contends that the State failed to provethat Sarah was involved in the conspiracy during (1) the October31, 2001, transaction because (a) the State presented no evidencethat Sarah knew that a delivery occurred on October 31, 2001, and(b) she had stopped selling methamphetamine as of September 26,2001; and (2) the November 2, 2001, transaction because herinvolvement was orchestrated by the police. We disagree withdefendant's contention as to the October 31, 2001, transactionbut agree with his contention as to the November 2, 2001, transaction.

The relevant question when considering a challenge tothe sufficiency of the evidence is "'whether, after viewing theevidence in the light most favorable to the [S]tate, any rationaltrier of fact could have found the essential elements of thecrime beyond a reasonable doubt.'" People v. Milka, 211 Ill. 2d150, 178, 810 N.E.2d 33, 49 (2004), quoting People v. Perez, 189Ill. 2d 254, 265-66, 725 N.E.2d 1258, 1264 (2000). The weight tobe given witnesses' testimony, the witnesses' credibility, andthe reasonable inferences to be drawn from the evidence are allthe responsibility of the fact finder. People v. Steidl, 142Ill. 2d 204, 226, 568 N.E.2d 837, 845 (1991).

The Supreme Court of Illinois has adopted the bilateraltheory of conspiracy, which requires the actual agreement betweenat least two participants of the conspiracy to the commission ofan offense, as opposed to the unilateral theory of conspiracy,which requires that only one of the participants actually agreedto the commission of an offense. People v. Foster, 99 Ill. 2d48, 51-55, 457 N.E.2d 405, 406-409 (1983). Our supreme court hasapplied the bilateral theory of conspiracy to the calculated-criminal-drug-conspiracy statute. That statute provides, inpertinent part, as follows, "a person engages in a calculatedcriminal drug conspiracy when *** [the delivery of a controlledsubstance] is a part of a conspiracy undertaken or carried onwith two or more other persons." 720 ILCS 570/405(b)(2) (West2000)). "A principal distinguishing feature of a calculatedcriminal drug conspiracy is that it requires a minimum of threeconspirators while a simple conspiracy requires only two." People v. Caballero, 237 Ill. App. 3d 797, 804, 604 N.E.2d 1028,1034 (1992). Thus, to prove that a defendant committed theoffense of calculated criminal drug conspiracy, the State mustprove that an actual agreement existed between the defendant andtwo or more other persons. People v. Harmison, 108 Ill. 2d 197,203-04, 483 N.E.2d 508, 511 (1985). Accordingly, in this case,the State had to prove that defendant, Connie, and Sarah agreedto deliver methamphetamine between October 30, 2001, throughNovember 2, 2001.

1. The October 31, 2001, Transaction

Defendant first contends that the State failed to provethat Sarah was involved in a conspiracy to sell methamphetaminewhen the October 31, 2001, transaction took place because (1) theState presented no evidence that Sarah knew that a deliveryoccurred that day and (2) she had stopped selling methamphetamineas of September 26, 2001. We disagree.

a. Sarah's Knowledge of Connie's Delivery of
Methamphetamine to Doza on October 31, 2001

Defendant first contends that Sarah was not involved inthe conspiracy on October 31, 2001, because she was not activelyinvolved in Connie's delivery of methamphetamine to Doza onOctober 31, 2001. We disagree.

Once a conspiracy is proved, any further illegal actscommitted by any one of the parties in furtherance of the commoncriminal purpose imposes criminal liability on all of the parties, whether or not they participated in the illegal act. People v. Vettese, 61 Ill. App. 3d 279, 282, 377 N.E.2d 1168,1170 (1978).

At defendant's trial, Connie and Sarah both testifiedthat (1) they sold methamphetamine and (2) defendant (a) suppliedthem with methamphetamine, (b) knew they were selling the methamphetamine he supplied them with, and (c) was the only person thatsupplied them with methamphetamine. Viewing this testimony inthe light most favorable to the State, we conclude that a juryreasonably could have found the existence of an on-going conspiracy between defendant, Connie, and Sarah to sell methamphetamine. Indeed, defendant does not appear to suggest otherwise.

Thus, the mere fact that Sarah did not activelyparticipate in the October 31, 2001, transaction does not negateher criminal liability. At the time of the October 31, 2001, sheremained a coconspirator in the ongoing conspiracy and wastherefore criminally liable for the illegal acts committed byConnie in furtherance of the common criminal purpose of defendant, Connie, and Sarah.

Moreover, the evidence showed that (contrary to defendant's contention) Sarah did know about and was actively involvedin the October 31, 2001, transaction. In particular, the evidence showed that (1) Connie delivered methamphetamine to Dozaoutside of her residence and (2) Sarah acknowledged that she (a)was inside Connie's residence during the delivery, (b) knew thatDoza was coming that day to get methamphetamine from Connie, (c)watched Doza arrive at the residence that day, and (d) watchedConnie walk to Doza's car.

Viewing the record under the appropriate standard ofreview, we conclude that a jury reasonably could have found thatSarah was a coconspirator on October 31, 2001, and defendant wasthus guilty of calculated criminal drug conspiracy based on theOctober 31, 2001, transaction.

b. Whether Sarah Stopped Selling Methamphetamine
as of September 26, 2001

Defendant also contends that the evidence showed thatSarah had stopped selling methamphetamine as of September 26,2001. Defendant thus seems to suggest that Sarah had withdrawnfrom the conspiracy. The State responds that even if Sarah didnot actively participate in the methamphetamine sales afterSeptember 26, 2001, she remained a coconspirator. We agree withthe State.

An individual's membership in a conspiracy is presumedto continue unless the individual withdraws from the conspiracyby the affirmative act of confessing to the police or by clearlycommunicating to her coconspirators that she is withdrawing. United States v. Wren, 363 F.3d 654, 663 (7th Cir. 2004). (Although not directly on point, we find support for this conclusion in section 5-2(c)(3) of the Criminal Code of 1961, whichprovides that a person otherwise accountable under that statutemay undo his accountability if "[b]efore the commission of theoffense, he terminates his effort to promote or facilitate suchcommission, and does one of the following: wholly deprives hisprior efforts of effectiveness in such commission, or givestimely warning to the proper law enforcement authorities, orotherwise makes proper effort to prevent the commission of theoffense." 720 ILCS 5/5-2(c)(3) (West 2000).)

In this case, regardless of whether Sarah activelyparticipated in the selling of methamphetamine after September26, 2001, she took no affirmative action to withdraw from theexisting conspiracy between defendant, Connie, and herself priorto the October 31, 2001, transaction. Accordingly, she remaineda coconspirator in the ongoing conspiracy. See Wren, 363 F.3d at663 (noting that "simply ceasing to participate [in the conspiracy] even for extended periods of time is not sufficient to showwithdrawal"). Viewing the evidence in the light most favorableto the State, we conclude that a jury reasonably could have foundthat Sarah was a coconspirator at the time of the October 31,2001, transaction because she had not withdrawn from the ongoingconspiracy.

3. The November 2, 2001, Transaction

Defendant next contends that the State failed to provethat Sarah was involved in the conspiracy to sell methamphetamineduring the November 2, 2001, transaction because she was actingas an agent of the State on that date. We agree.

Because Connie and Sarah were cooperating with thepolice and acting on the officers' behalf during the November 2,2001, transaction, they could not be considered defendant'scoconspirators under the bilateral theory of conspiracy. InPeople v. Breton, 237 Ill. App. 3d 355, 360, 603 N.E.2d 1290,1294-95 (1992), the appellate court stated, in pertinent part, asfollows:

"Under the bilateral theory of conspiracy, apurported agreement between a defendant and agovernment agent only feigning agreement willnot support a conspiracy conviction becausethere is no actual agreement and actualagreement is a necessary element ofconspiracy. [Citation.]

An agreement between a defendant and agovernmental agent only feigning agreement isan agreement based on the unilateral theory."

On November 2, 2001, neither Connie nor Sarah intended to engagein a calculated criminal drug conspiracy, as both were theninvolved at the request of the police. Thus, during thattransaction, no actual agreement existed between defendant,Connie, and Sarah to deliver methamphetamine.

However, the State's charging instrument did not limitthe calculated-criminal-drug-conspiracy charge to November 2,2001. Instead, as earlier noted, the State charged defendantwith calculated criminal drug conspiracy based on his actionsfrom "October 30, 2001, through November 2, 2001." As weconcluded above, a jury reasonably could have found that aconspiracy existed between defendant, Connie, and Sarah todeliver methamphetamine on October 31, 2001. Thus, the jurycould have found beyond a reasonable doubt that defendantcommitted the offense of calculated criminal drug conspiracy fromOctober 30, 2001, through November 2, 2001.

B. Other-Crimes Evidence

Defendant next argues that the trial court erred byadmitting other-crimes evidence--namely, evidence of Sarah's andConnie's September 6 and 25, 2001, deliveries of methamphetamineto Doza that they had acquired from defendant. Specifically, hecontends that the court failed to properly balance the probativevalue of the evidence against its potential for prejudice. Alternatively, defendant argues that even if this other-crimesevidence was admissible, the court erred by failing to sua sponteinstruct the jury of the limited use of the evidence. Wedisagree.

1. Admission of Other-Crimes Evidence

Evidence of other crimes in which a defendant may haveparticipated is not admissible to show a defendant's propensityto commit crime. People v. Illgen, 145 Ill. 2d 353, 364, 583N.E.2d 515, 519 (1991). This general rule is premised on thebelief that "[s]uch evidence overpersuades the jury, which mightconvict the defendant only because it feels he or she is a badperson deserving punishment." People v. Lindgren, 79 Ill. 2d129, 137, 402 N.E.2d 238, 242 (1980). However, evidence of othercrimes is admissible when relevant for any purpose other than thepropensity to commit crime, such as intent, modus operandi,identity, motive, or absence of mistake. Illgen, 145 Ill. 2d at364-65, 583 N.E.2d at 519; People v. Richardson, 123 Ill. 2d 322,339, 528 N.E.2d 612, 617 (1988). "Evidence is considered 'relevant' if it has any tendency to make the existence of any factthat is of consequence to the determination of an action more orless probable than it would be without the evidence." Illgen,145 Ill. 2d at 365-66, 583 N.E.2d at 520.

Even when relevant for a permissible purpose, the trialcourt must weigh the prejudicial effect of admitting the other-crimes evidence against its probative value. People v. Robinson,167 Ill. 2d 53, 63, 656 N.E.2d 1090, 1094 (1995). The courtshould exclude the other-crimes evidence if the probative valueof the evidence is substantially outweighed by the prejudicialeffect on the defendant's right to a fair trial. Illgen, 145Ill. 2d at 365, 583 N.E.2d at 519. The admissibility of other-crimes evidence lies within the trial court's sound discretion,and we will not reverse that court's decision absent a clearabuse of discretion. People v. Heard, 187 Ill. 2d 36, 58, 718N.E.2d 58, 71 (1999). An abuse of discretion will be found onlywhere the trial court's decision is arbitrary, fanciful, orunreasonable or where no reasonable person would take the viewadopted by the trial court. Illgen, 145 Ill. 2d at 364, 583N.E.2d at 519.

An essential element of the calculated-criminal-drug-conspiracy charge against defendant was proof of an agreementbetween defendant, Connie, and Sarah to deliver methamphetamine. The State introduced the other-crimes evidence to prove (1)defendant's intent that methamphetamine be sold and (2) that anagreement existed between defendant, Connie, and Sarah to sellit. After considering counsel's arguments, the trial court (1)noted that the State should be allowed to introduce evidence thatwas probative as to the existence of an agreement betweendefendant, Connie, and Sarah; (2) found that the State couldattempt to prove the conspiracy existed between defendant,Connie, and Sarah by showing how the three of them had previouslyinteracted regarding the delivery of methamphetamine; (3) foundthat the other-crimes evidence was "relevant when the charge isconspiracy"; and (4) overruled defendant's objection regardingthe admission of the other-crimes evidence.

We agree with the State that the evidence of theSeptember 6 and 25, 2001, methamphetamine deliveries served apurpose other than demonstrating defendant's propensity to committhe crime. Specifically, the other-crimes evidence was probativeof the existence of a conspiracy between defendant, Connie, andSarah to deliver methamphetamine. Although the trial courtagreed with defendant that the other-crimes evidence was "veryprejudicial," the court ultimately determined that the relevanceof the other-crimes evidence to the calculated-criminal-drug-conspiracy charge outweighed its prejudicial effect. We agreewith the court's determination and thus conclude that the courtdid not abuse its discretion by admitting the other-crimesevidence.

2. The Trial Court's Failure To Sua Sponte Instruct
the Jury Regarding the Other-Crimes Evidence

Defendant next argues that even if the other-crimesevidence was admissible, the trial court erred by failing to suasponte instruct the jury. We disagree.

Initially, we note that defendant did not request alimiting instruction at trial and the trial court did not providethe jury with the pattern jury instruction. See Illinois PatternJury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafterIPI Criminal 4th). In People v. Denny, 241 Ill. App. 3d 345,360-61, 608 N.E.2d 1313, 1324 (1993), this court held, inpertinent part, as follows:

"Because of the significant prejudice toa defendant's case that the admission ofother[-]crimes evidence usually risks, wehold that trial courts should not onlyinstruct the jury in accordance with IPICriminal 2d No. 3.14 at the close of thecase, but also orally from the bench (unless[the] defendant objects) at the time theevidence is first presented to the jury."

Nonetheless, we concluded in Denny that the trial court's failure to sua sponte give IPI Criminal 2d No. 3.14 did notconstitute plain error. Denny, 241 Ill. App. 3d at 360, 608N.E.2d at 1323; see also People v. Tolbert, 323 Ill. App. 3d 793,800, 753 N.E.2d 1193, 1200 (2001) ("it is not always plain errorfor a court to fail to instruct the jury regarding the limitedpurpose for other-crimes evidence").

"'[A] reviewing court [may] consider plainerrors or defects which affect substantialrights even though the errors were notbrought to the trial court's attention.[Citation.] This plain[-]error rule applieswhere the evidence in a case is closelybalanced or where an error is of suchmagnitude that the defendant has been denieda fair and impartial trial.'" City ofChampaign v. Sides, 349 Ill. App. 3d 293,308, 810 N.E.2d 287, 307 (2004), quotingPeople v. Flax, 255 Ill. App. 3d 103, 108,627 N.E.2d 359, 363-64 (1993).

We agree with the State that a review of the record reveals thatthe evidence was not closely balanced nor was defendant deprivedof a fair trial by the court's failure to sua sponte give thelimiting instruction. We thus conclude that the court did notcommit plain error by failing to sua sponte give IPI Criminal 4thNo. 3.14 to the jury.

Although we have so concluded, we nonetheless reaffirmDenny and urge trial courts to not only instruct the jury inaccordance with IPI Criminal 4th No. 3.14 at the close of thecase but to also do so orally from the bench when the other-crimes evidence is first presented to the jury (unless thedefendant objects).

C. Defendant's Claim That the Trial Court Abused Its Discretionby Sentencing Him to Seven Years in Prison

Last, defendant argues that the trial court abused itsdiscretion by sentencing him to seven years in prison for countII (delivery of a controlled substance on November 2, 2001). Specifically, he contends that if we reverse his conviction oncount III (calculated criminal drug conspiracy), on which thecourt imposed an eight-year, concurrent sentence, we shouldremand for resentencing or reduce the seven-year sentence to fiveyears because (1) the seven-year sentence was not justified bythe nature of the offense and (2) the court overlooked mitigatingfactors that defendant (a) had only one prior conviction, (b)suffered "a severe emotional setback" prior to engaging incriminal activity, (c) had a stable work history, and (d) had ahistory of substance abuse. We are unpersuaded.

Because defendant bases his argument regardingmodification of his sentence on his expectation that we wouldreverse his calculated-criminal-drug-conspiracy conviction, hisargument is rendered moot by our declining to do so. Nonetheless, we choose to address defendant's argument on themerits.

In People v. Kennedy, 336 Ill. App. 3d 425, 433, 782N.E.2d 864, 871 (2002), the appellate court discussed sentencingas follows:

"A trial court's sentencingdetermination must be based on the particularcircumstances of each case, including factorssuch as the defendant's credibility,demeanor, general moral character, mentality,social environment, habits, and age. [Citations.] Generally, the trial court isin a better position than a court of reviewto determine an appropriate sentence basedupon the particular facts and circumstancesof each individual case. [Citation.] Thus,the trial court is the proper forum for thedetermination of a defendant's sentence, andthe trial court's decisions in regard tosentencing are entitled to great deferenceand weight. [Citation.] Absent an abuse ofdiscretion by the trial court, a sentence maynot be altered upon review. [Citation.] Ifthe sentence imposed is within the statutoryrange, it will not be deemed excessive unlessit is greatly at variance with the spirit andpurpose of the law or is manifestlydisproportionate to the nature of theoffense."

Delivery of a controlled substance is a Class 2 offense(720 ILCS 570/401(d)(iii) (West 2000)) and has a sentencing rangeof three to seven years in prison (730 ILCS 5/5-8-1(a)(5) (West2000)).

In sentencing defendant, the trial court stated, inpertinent part, as follows:

"We have in [defendant] someone who's 55years of age. He does have a felonyconviction of burglary. It's a long timeago, but he is not without a criminalhistory. He has been employed at the samejob since 1996. So he has shown somestability in that respect.

* * *

*** I've looked at the mitigatingfactors that the statute calls for me toconsider and the aggravating factors. AndI've looked at the nature of this offense.

We have in [defendant's] deliveries anevil that is very serious. There is harm tosociety because of deliveries of such drugs. There is I believe a deterrent factor the[c]ourt has to weigh. People need tounderstand if they get involved in veryserious matters such as delivery that theycould pay a heavy price.

I'm particularly troubled with[defendant's] willingness to supply his youngniece with drugs. There was some evidencethat his sister was an alcoholic, and hethought perhaps methamphetamine would bebetter for her than all the alcohol she wasdrinking. Regardless of where that's at, itis true that [defendant] did not do well byhis niece.

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*** I find under these circumstances,[defendant], that eight years is theappropriate sentence [for count III].

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*** With respect to [count II], there isa seven[-]year sentence imposed that will runconcurrently with [count III]."

The record shows that the trial court considered thenature of the crime and the aggravating and mitigating factors,including defendant's single prior conviction and work history. The mere fact that the court did not specifically recite each ofthe mitigating factors does not call into question the court'sconsideration of those factors. See People v. Beasley, 314 Ill.App. 3d 840, 847, 732 N.E.2d 1122, 1128 (2000) (the trial court"is not obliged to recite or assign a value to each factorpresented at the sentencing hearing"). Judged in accordance withthe appropriate standard of review, we conclude that the court'ssentencing decision did not constitute an abuse of discretion.

 

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

APPLETON and McCULLOUGH, JJ., concur.

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