Docket No. 88471-Agenda 9-September 2000.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JENNIFER R. SCHMALZ, Appellee.
Opinion filed November 22, 2000.
CHIEF JUSTICE HARRISON delivered the opinion of thecourt:
As petitioner, the State presents a single issue: whether theState's evidence was sufficient to prove the defendant, Jennifer R.Schmalz, guilty beyond a reasonable doubt of unlawful possessionof cannabis (720 ILCS 550/4(a) (West 1996)) and drugparaphernalia (720 ILCS 600/3.5(a) (West 1996)). In the circuitcourt of Peoria County, following a bench trial the defendant wasfound guilty of both offenses and sentenced to six months ofnonreporting supervision. Defendant appealed, raising the soleissue of whether the State's evidence was insufficient to prove herguilty beyond a reasonable doubt.
On review the parties presented a brief agreed statement offacts, which we set forth in its entirety:
"A bench trial was held on December 18, 1997. Thedefendant-appellant Jennifer Schmalz was the onlydefendant in the trial. At that bench trail [sic], the courtfound the following facts:
Peoria Police Officer Baize, Star 794, testified that on August 28, 1997, he went to the address of 1209 NorthUnderhill, Peoria, Illinois, in response to a call concerninga problem regarding a parked vehicle. While assistingother officers regarding that vehicle, he knocked on thedoor at that address. The building was a residential,single-family style house. After speaking with the youngman who answered the door, Officer Baize asked for andreceived permission to enter that building and search forthe driver of the vehicle.
Officer Baize entered the house and eventually startedup an interior stairway leading to the upstairs portion ofthe house. While going up the stairs, he noticed smokeand smelled what he believed was burning marijuana.
Upon reaching the top of the stairs, Officer Baizenoticed the smell was stronger. He turned into a bedroomto which the door was partially open, knocked andreceived a response of 'come in.' The bedroom was a verysmall room. In that bedroom were four persons (one maleand three females), one of whom was the defendant.There was considerable smoke and haze, and the smell ofburning marijuana, in that bedroom. The defendant wassitting on the floor. Two persons were sitting on a couch.The fourth person was sitting on a bed.
On the floor of that bedroom were items of drugparaphernalia (3 bongs), as well as three clear plastic bagscontaining crushed green plant. The defendant was sittingless than 12 inches from one of the bags; that bag and abong were within the defendant's reach from where shewas sitting. There were also other drug paraphernaliaitems elsewhere in the bedroom. A fourth clear plastic bagwas recovered from the couch in the bedroom after one oftwo persons sitting on the couch attempted to concealsomething from the police. That person was not thedefendant, and the police never saw defendant on thatcouch. The police officer asked 'what are you doing?' andthe defendant stated 'we're having a party'. Officer Baizedid not see any drinks, snacks or food in that bedroom.The officer then placed under arrest all four individuals inthe bedroom, as well as the young man who had answeredthe door. Upon searching the remainder of the residence,the police found additional paraphernalia in other roomsof the residence. All five persons were charged withpossession of drug paraphernalia and with misdemeanorpossession of cannabis. The defendant was charged withpossession of not more than 2.5 grams of marijuana under720 ILCS 550/4(a).
Officer testified that his investigation revealed that thetwo males were the sole residents at that building. Thethree females, one of whom was the defendant, did notreside or stay at that location. The officer did not see anywomen's clothing in the closets of the residence.
Officer Baize testified that no marijuana orparaphernalia was recovered from the person of thedefendant, or from any property, such as a purse or jacket,of the defendant. He did not see the defendant touch anymarijuana or paraphernalia. The only room of theresidence in which he saw the defendant (other than therooms through which he escorted her after her arrest) wasthe bedroom in which he first saw her. He never saw herin, or exiting from, any of the other rooms from whichdrug paraphernalia items were recovered.
Officer Baize did not see who placed any of theparaphernalia or marijuana at the any [sic] of the placesfrom which it was recovered, including the bedroom inwhich he saw the defendant sitting on the floor.
The parties stipulated that if called to testify, Jennie R.Hahn would testify as follows: as to her education,training, experience, credentials and qualifications in thefield of forensic chemistry; that she is employed as aforensic scientist with the Illinois State Police; that onSeptember 11, 1997, she received from the Peoria PoliceDepartment four plastic bags containing crushed greenplant; she weighed the contents of all four bags, and all ofthose contents weighed 6.8 grams; she tested thosecontents, and the contents tested positive for the presenceof cannabis. The parties also stipulated to the chain ofcustody of the paraphernalia and marijuana.
The prosecution then rested. No exhibits were offeredor admitted into evidence. A defense motion for acquittalwas denied. The defense then rested without presentingany evidence. After argument, Judge Stuart P. Bordenfound the defendant guilty of possession of drugparaphernalia and possession of cannabis (not more than2.5 grams) and sentenced her to six (6) months non-reporting supervision, with the only conditions beingpayment of a $750.00 fine and $206 in costs (C. 19, 21).
On January 12, 1998, the defendant filed a Post-TrialMotion for Judgment of Acquittal, or, alternatively,Motion for a New Trial (C. 22, 23, 25). This motion washeard and denied on January 30, 1998 (C. 26). Notice ofAppeal was filed that same day (C. 27)."
In People v. Schmalz, No. 3-98-0097 (1998) (unpublishedorder under Supreme Court Rule 23), the appellate courtdetermined that the evidence was insufficient to prove defendant'sunlawful possession, an essential element of both of the offenses,and accordingly reversed the judgment of the circuit court. In thatdisposition the appellate court concluded that defendant was notin actual possession of any cannabis or drug paraphernalia, havingmerely been seated in close proximity to contraband but nothaving been observed smoking or touching it. The appellate courtconcluded as well that the evidence failed to establish defendant'sconstructive possession of the contraband within her reach, whereshe was not in control of the premises, there being no evidenceindicating that she was more than a mere visitor to the apartmentor that she had ever exercised control over the premises.
This court denied the State's petition for leave to appeal (183Ill. 2d 589 (1999) (order upon denial of leave to appeal)), but inthe exercise of our supervisory authority, directed the appellatecourt to vacate its order reversing the judgment of the trial courtand to review the instant case in accordance with our decision inPeople v. Adams, 161 Ill. 2d 333 (1994).
On remand, the appellate court revisited the cause todetermine whether the circuit court had erred in its conclusion thatthe State had proved beyond a reasonable doubt that the defendantwas guilty of unlawful possession of cannabis and drugparaphernalia. The appellate court answered in the negative thequestion whether the State had met its burden of establishing thatdefendant was guilty of both offenses because she either was inconstructive possession of the contraband or was accountable forthe actions of those in her company. Accordingly, the appellatecourt reversed the judgment of the trial court entered upondefendant's convictions. 307 Ill. App. 3d 699. We allowed theState's petition for leave to appeal pursuant to Supreme CourtRule 315 (177 Ill. 2d R. 315). The State argues that the State'sevidence supports a finding of actual possession and was,therefore, sufficient to prove defendant guilty of both offenses. Weagree.
A criminal conviction will not be set aside unless the evidenceis so improbable or unsatisfactory that it creates a reasonabledoubt of the guilt of the defendant. People v. Collins, 106 Ill. 2d237, 261 (1985). When this court is presented with a challenge tothe sufficiency of the evidence, it is not the function of this courtto retry the defendant. People v. Smith, 185 Ill. 2d 532, 541(1999); Collins, 106 Ill. 2d at 261. " '[T]he relevant question 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' ";" '[o]nce a defendant has been found guilty of the crime charged,the factfinder's role as weigher of the evidence is preservedthrough a legal conclusion that upon judicial review all of theevidence is to be considered in the light most favorable to theprosecution.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261,quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560,573, 99 S. Ct. 2781, 2789 (1979). The requirement that adefendant's guilt be proved beyond a reasonable doubt does notmean that inferences flowing from the evidence should bedisregarded. People v. Frieberg, 147 Ill. 2d 326, 361-62 (1992). The Cannabis Control Act provides in part that "[i]t isunlawful for any person knowingly to possess cannabis" (720ILCS 550/4 (West 1996)); the Drug Paraphernalia Control Actprovides in part that "[a] person who knowingly possesses an itemof drug paraphernalia with the intent to use it in ingesting,inhaling, or otherwise introducing cannabis or a controlledsubstance into the human body, or in preparing cannabis or acontrolled substance for that use, is guilty of a Class Amisdemeanor" (720 ILCS 600/3.5(a) (West 1996)). To sustain acharge of unlawful possession of either cannabis or drugparaphernalia, the State must prove that the defendant hadknowledge of the presence of the cannabis or drug paraphernaliaand that the defendant had the cannabis or drug paraphernalia inhis immediate and exclusive possession or control. See Frieberg,147 Ill. 2d at 360. Whether there is knowledge and whether thereis possession or control are questions of fact to be determined bythe trier of fact. People v. Galloway, 28 Ill. 2d 355, 358 (1963).
Mere proximity is not sufficient evidence of actualpossession (People v. Ray, 232 Ill. App. 3d 459, 462 (1992)), andknowledge of the location of contraband is not the equivalent ofpossession but merely a necessary element of criminal possession(People v. Jackson, 23 Ill. 2d 360, 363-64 (1961)). Actualpossession is the exercise by the defendant of present personaldominion over the illicit material (People v. Brookhouse, 289 Ill.App. 3d 1079, 1082 (1997)) and exists when an individualexercises immediate and exclusive dominion or control over theillicit material (see People v. Gonzalez, 313 Ill. App. 3d 607, 616(2000)). Actual possession does not require present personaltouching of the illicit material but, rather, present personaldominion over it. People v. Clark, 173 Ill. App. 3d 443, 451(1988). The rule that possession must be exclusive does not meanthat the possession may not be joint (People v. Embry, 20 Ill. 2d331, 335-36 (1960)); if two or more persons share immediate andexclusive control or share the intention and power to exercisecontrol, then each has possession (People v. Scott, 152 Ill. App. 3d868, 871 (1987)). Where possession has been shown, an inferenceof guilty knowledge can be drawn from the surrounding facts andcircumstances. Jackson, 23 Ill. 2d at 365. The fact of possessionmust be shown beyond a reasonable doubt. Jackson, 23 Ill. 2d at365.
In the instant case, according to the parties' agreed statementof facts, a young man admitted Officer Baize to the single-familyresidence so that the officer could search for the driver of a parkedvehicle. While ascending an interior stairway, he noticed smoke,smelled what he believed was burning marijuana, and noticed thatthe smell was stronger when he reached the top of the stairs. Whenhe turned into an upstairs bedroom, the door to which was partiallyopen, he knocked and received a response to "come in." In thatvery small room there was considerable smoke and haze, the smellof burning marijuana, and four persons, one of whom was thedefendant, the only person sitting on the floor. The others wereseated on a couch and on a bed in the room. On the floor of thebedroom were items of drug paraphernalia, namely, three bongs,i.e., pipes, as well as three clear plastic bags containing crushedgreen plant. A fourth clear plastic bag was recovered from thecouch after one of the two persons sitting on it attempted toconceal something from the police. Elsewhere in the room wereother items of drug paraphernalia. Defendant was sitting less than12 inches from one of the plastic bags, which together with abong, was within her reach as she sat there. Officer Baize saw nodrinks, snacks, or food in the room, but when he asked, "[W]hatare you doing?" defendant responded, "[W]e're having a party."She did not say, "They're having a party."
We conclude that, after viewing the evidence in the light mostfavorable to the prosecution, a rational trier of fact could havefound the essential elements of the crime beyond a reasonabledoubt. As the trier of fact, the trial court could well have foundthat defendant had knowledge of the presence of the cannabis andof the drug paraphernalia and that she had the cannabis and drugparaphernalia in her immediate and exclusive possession orcontrol. Given the evidence here, the trial court could properlyhave determined that defendant exercised present personaldominion over the illicit material, so that she was in actualpossession of it. The evidence not being so improbable orunsatisfactory that it creates a reasonable doubt of the guilt of thedefendant, we will not set the conviction aside.
For the foregoing reasons the judgment of the appellate courtis reversed and the judgment of the circuit court is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.