{
  "id": 2496781,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Cynthia Grace Howard, Defendant-Appellant",
  "name_abbreviation": "People v. Howard",
  "decision_date": "1975-06-19",
  "docket_number": "No. 12644",
  "first_page": "387",
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    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T17:27:57.823802+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Cynthia Grace Howard, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE SIMKINS\ndelivered the opinion of the court:\nOn January 9, 1974, defendant, Cynthia Howard, was found guilty of possession of more than 30 and less than 500 grams of marijuana in a bench trial. She received a sentence of 18 months conditional discharge.\nOne of the issues on appeal is whether defendant was proven guilty beyond a reasonable doubt. In view of our disposition of this issue, the other issue raised by defendant, a search and seizure issue, need not be discussed. Recital of the facts is limited to those relevant on the issue of reasonable doubt.\nOn May 17,1972, several police officers entered Room 220 in the Regal 8 Motel in Bloomington, Illinois. The testimony of all the officers was consistent. There were three persons in the room. One person, John Fields, was sitting on one of the two beds. He was opposite Ms. Howard, who was sitting on the other bed near the headboard. On the same bed, near the foot, was sitting Donald Burton, to whom the room was registered. A small plastic bag of a substance that was subsequently determined to be marijuana was on the bed between the headboard and Ms. Howard. This bag was approximately 6 inches to 1 foot from her. On the bed, between Ms. Howard and Mr. Burton, was a brass pipe and some papers.\nDefendant contends that tins evidence is insufficient to prove her guilty of possession beyond a reasonable doubt. We agree.\nThe State must establish two elements in order to obtain a conviction for unlawful possession of narcotics. The first is the knowledge of defendant of the presence of narcotics. The second is immediate and exclusive control. People v. Nettles, 23 Ill.2d 306, 178 N.E.2d 361.\nKnowledge of the location of narcotics, although an element, is not the equivalent of possession. People v. Jackson, 23 Ill.2d 360, 178 N.E.2d 320.\nPossession can be either actual or constructive. If the State proves that defendant has control of the premises, it is permissible to infer that defendant has control of the narcotics and this is constructive possession. It is because of the difficulties of proving actual possession, that the doctrine of constructive possession was formulated. (People v. Connie, 52 Ill.App.2d 221, 201 N.E.2d 641.) The State acknowledges that constructive control is not an issue in this case and that the State must prove actual possession.\nAlthough the State argues that personal physical possession need not be shown in order to prove control, they cite cases discussing the constructive possession doctrine.\nActual possession is proved by testimony which shows that defendant has exercised some dominion over the unlawful substance. (People v. Jackson.) The act of dominion may be that defendant had the substance on his body, that he tried to conceal it, that he was seen throwing it away. In the case at bar, the testimony reveals only that three persons were in a room, that there was some marijuana there and that defendant was closest to it. Mere proximity is not sufficient evidence of actual possession. People v. Washington, 17 Ill.App.3d 383, 308 N.E.2d 339; People v. Robinson, 102 Ill.App.2d 171, 243 N.E.2d 594; Annot., 91 A.L.R.2d 810 (1963).\nIn the Robinson case, the police had testified that an informant told them he received narcotics from a man named \u201cPreacher\u201d and that the police could find him in the bathroom of a certain apartment. The police found narcotics and two persons, one the defendant \u201cPreacher\u201d in the bathroom and two other persons in the rest of the apartment. However, they could not testify that defendant in any way exercised control over the narcotics since there was no evidence (other than the hearsay of the informant who did not testify) that would connect defendant with the narcotics rather than any other occupant of the apartment. The court stated:\n\u201cIt is incumbent upon the State to prove beyond a reasonable doubt that the defendant had either actual or constructive possession of the narcotics. [Citations.] The State clearly has not shown actual possession; and mere knowledge of the location of narcotics is not the equivalent of possession but merely a necessary element of criminal possession. [Citations.]\u201d (People v. Robinson, 102 Ill.App.2d 171, 175, 243 N.E.2d 594, 596.)\nSince there was no evidence of actual possession by the defendant, the State did not sustain its burden of proof.\nThe People have filed a motion to assess costs, which was ordered taken with the case. The People had requested and received leave to amend the record with the transcript of the proceedings at the hearing on defendant\u2019s motion to suppress evidence. This testimony was relevant to the second issue defendant had raised on appeal, the issue of unreasonable search and seizure.\nSupreme Court Rule 329 (Ill. Rev. Stat. 1973, ch. 110A, \u00a7 329) provides that, if the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of tire appellant. We have found it unnecessary to discuss this issue, due to our resolution of the first issue. However, the transcript was necessary to fully present the issue defendant raised. For this reason the motion of the People is allowed.\nFor reasons stated above, the judgment of the circuit court of McLean County is reversed.\nReversed.\nGREEN and TRAPP, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE SIMKINS"
      }
    ],
    "attorneys": [
      "Walwyn M. Trezise, of Fairbury, for appellant.",
      "Paul R. Welch, State\u2019s Attorney, of Bloomington (G. Michael Prall and Kai A. Wallis, both of Illinois State\u2019s Attorneys Association, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Cynthia Grace Howard, Defendant-Appellant.\n(No. 12644;\nFourth District\nJune 19, 1975.\nWalwyn M. Trezise, of Fairbury, for appellant.\nPaul R. Welch, State\u2019s Attorney, of Bloomington (G. Michael Prall and Kai A. Wallis, both of Illinois State\u2019s Attorneys Association, of counsel), for the People."
  },
  "file_name": "0387-01",
  "first_page_order": 411,
  "last_page_order": 414
}