{ "id": 3235268, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFTON EVANS, Defendant-Appellant", "name_abbreviation": "People v. Evans", "decision_date": "1979-12-31", "docket_number": "No. 78-2123", "first_page": "87", "last_page": "94", "citations": [ { "type": "official", "cite": "80 Ill. App. 3d 87" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "390 N.E.2d 1364", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 160", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3260769 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0160-01" ] }, { "cite": "152 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "14 Ill. 2d 385", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2768709 ], "year": 1979, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0385-01" ] }, { "cite": "387 N.E.2d 1096", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578470 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0131-01" ] }, { "cite": "397 N.E.2d 799", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "459 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "331 N.E.2d 169", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2498616 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0536-01" ] }, { "cite": "322 N.E.2d 819", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "60 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414551 ], "year": 1975, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0001-01" ] }, { "cite": "375 N.E.2d 989", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3359749 ], "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0615-01" ] }, { "cite": "374 N.E.2d 200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "71 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5450360 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/71/0132-01" ] }, { "cite": "349 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 472", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379987 ], "weight": 3, "pin_cites": [ { "page": "473" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0472-01" ] }, { "cite": "375 N.E.2d 1001", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3355291 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0521-01" ] }, { "cite": "98 S. Ct. 1250", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "55 L. Ed. 2d 772", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "434 U.S. 1069", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6531778, 6532259, 6532196, 6531909, 6531974, 6532138, 6531854, 6532085, 6532342, 6531708, 6532030 ], "opinion_index": 0, "case_paths": [ "/us/434/1069-02", "/us/434/1069-10", "/us/434/1069-09", "/us/434/1069-04", "/us/434/1069-05", "/us/434/1069-08", "/us/434/1069-03", "/us/434/1069-07", "/us/434/1069-11", "/us/434/1069-01", "/us/434/1069-06" ] }, { "cite": "365 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3369879 ], "year": 1978, "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0708-01" ] }, { "cite": "210 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 Ill. 2d 134", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884925 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/33/0134-01" ] }, { "cite": "192 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "28 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5361754 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0355-01" ] } ], "analysis": { "cardinality": 845, "char_count": 16887, "ocr_confidence": 0.898, "pagerank": { "raw": 8.450417989504364e-08, "percentile": 0.48487324936704806 }, "sha256": "bd129d9d03d059d2927575d72c9d152b3912edc1d3e05a31cffe16e81b89403b", "simhash": "1:33c2f0cc7a967767", "word_count": 2818 }, "last_updated": "2023-07-14T16:24:24.666127+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFTON EVANS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendant Clifton Evans, charged by information with one count of bribery (Ill. Rev. Stat. 1975, ch. 38, par. 33 \u2014 1(a)), two counts of possession of a controlled substance and one count of possession of counterfeit prescription forms, in violation of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56\u00bd, pars. 1402(b), 1406(b)(6)), was found guilty of three counts by the trial court sitting without a jury and sentenced to five years probation, the first two years to be served in a work-release program. From the judgment on that finding defendant appeals.\nThe issues raised on review are whether defendant was proved guilty beyond a reasonable doubt of the charges of unlawful possession of the controlled substances of valium and ritalin and of bribery.\nThe bench trial commenced on September 12,1978. The State\u2019s chief witnesses were Chicago Police Officers Warren Duhig and Robert banning, who testified that on October 11, 1976, they were on midnight watch patrol. At approximately 2 a.m., at 4560 South Indiana, Chicago, they observed a Cadillac automobile with its trunk open double parked and a taxicab double parked behind it. Duhig and banning approached two men standing near the open trunk and inquired as to what they were doing. Defendant and the taxi driver replied that the cab was giving defendant\u2019s car a \u201cjump.\u201d Both officers recognized defendant, having questioned and searched him an hour earlier that evening, recovering a knife and a prescription for ritalin in defendant\u2019s name. During that investigation, a computer name-check made at the police station had elicited no information, and the officers had released him.\nAt this second encounter, as defendant explained why he was parked there, Duhig glanced into the open trunk of the Cadillac and observed a shopping bag containing vials, pills and prescription blank forms. At the trial he identified and read for the court each of the various prescriptions recovered from defendant\u2019s trunk. Each prescription was for 90 pills of 20 mg. of ritalin, signed by a Dr. Louis Coggs, and made out to various people, including defense witness David Barrett. Duhig also identified a calendar book with prescription labels pasted inside which was recovered from defendant\u2019s trunk. When asked by Officer Duhig whose prescriptions and labels were in the shopping bag, defendant replied that some were his and some were not. banning testified that Duhig\u2019s question was whether the pills in the bag belonged to defendant, and that defendant replied that some were his and some belonged to his friends. At this point Duhig arrested defendant and transported him to the police station by squadrol while banning drove there in defendant\u2019s car.\nDefendant was taken to an interrogation room and advised of his constitutional rights, banning testified that defendant was seated at a table with his left wrist handcuffed to a ring in the wall. The contents of the shopping bag were emptied onto the table and separated, with cash found in the bag placed in front of defendant. Defendant asked whether his car would be towed; when banning said yes, defendant requested him to retrieve some money hidden under the floor mat, which he did, placing the money in the pile with the other currency. Defendant inquired about his bond, stating he had to go to work the following day in order to appear before a board regarding a job grievance. He was informed that possession of narcotics was a \u201cjudge\u2019s bond,\u201d and that the officers had no authority to determine the amount. Duhig testified that defendant asked him if he could be released and, upon receiving a negative response, defendant pointed to the money on the table and said, \u201c[h]ere, I got to make it to work tomorrow.\u201d When banning returned, he and Duhig had a conversation in the hallway, following which banning went for the desk sergeant, and Duhig went back into the interrogation room, banning returned to the room with Police Sergeant Edward Boyte, joining Duhig and defendant. All three officers testified that defendant then talked with Boyte concerning whether he understood his rights, and then defendant pushed the money toward the policemen urging them to take it and let him go, while repeating his assertion that he must go to work the next day. At that point defendant was charged with bribery in addition to the violations of the Controlled Substances Act.\nGerald B. Pazin, a forensic chemist employed by the Chicago Police Department, testified for the State that his analysis of the substances recovered from defendant were methylphenidate (ritalin) and diazepam (valium), contained in State\u2019s exhibits Nos. 18 and 19 respectively.\nAt the close of the State\u2019s case, defendant successfully moved to dismiss count IV of the information charging possession of counterfeit prescription forms, based upon the State\u2019s failure to prove the violation charged. It was then stipulated that if the druggist who dispensed the State\u2019s exhibit No. 17, which was ritalin prescribed for defendant, were called as a witness, he would testify that he dispensed 29 tablets of ritalin to defendant pursuant to a prescription.\nDavid L. Barrett testified for the defense that he did maintenance work on a building owned by defendant. He identified the State\u2019s exhibit No. 19, which was a prescription vial in his name containing valium. Barrett testified that a Dr. Coggs had prescribed the pills for pain. They came into defendant\u2019s possession because in October of 1976, while cleaning in a building, Barrett placed them in the bag in defendant\u2019s automobile trunk. Barrett did not request the return of the pills until two or three weeks prior to the time of his testimony on September 14,1978.\nDefendant testified in his own behalf. He stated that David Barrett maintained his building and that a man named LaGrone had also done some maintenance work and had stayed in the building for a day or two or a week or two. Willie Robinson, whose prescription was found in defendant\u2019s trunk, had also been a tenant in one of the buildings. Defendant had washed cars with LaGrone and kept rags in the trunk of his car, and that must have been how LaGrone\u2019s prescription came to be in his trunk. He did not know that David Barrett\u2019s prescription was in the trunk of his car when the police stopped him, nor how it could have gotten there. Defendant denied bribing the police or pushing the money toward the officers because, according to him, his right arm had been handcuffed to the wall, making such a motion impossible, and claimed he was told he would be brought before a judge who was available. The State read into the record defendant\u2019s prior conviction for bribery. Defendant admitted the conviction but maintained his innocence in the matter.\nAt the close of all the evidence, the court found the testimony of defendant and of defense witness Barrett to be # inconsistent, contrary and not credible,\u201d and found defendant guilty as charged of counts I, II and III of the information. Defendant was sentenced to five years probation, with the first two years to be served in the work-release program.\nI.\nDefendant initially contends that the trial court erred in finding him guilty beyond a reasonable doubt of unlawful possession of valium and ritalin, both controlled substances under the Act, because \u201c* I.*******9 * the necessary element of unlawful or unauthorized possession was never proven by the State.\u201d He suggests that if a person brings home a prescription for his friend, wife or child, he commits no crime because he is holding a prescription bottle. Since that is all the record shows he did, defendant concludes he did not violate the statute. Referring to the prescriptions made out to Barrett and LaGrone found in the trunk of his car, he points out as to LaGrone\u2019s prescription that there was no evidence it was \u201cfalse or improper,\u201d and as to Barrett\u2019s that there was no evidence Barrett obtained the prescription unlawfully. He also claims that whether or not he knew that the piUs were in his trunk, it was not a crime to have prescription drugs unless they were obtained fraudulently or by theft. Since there was no showing that defendant so obtained them, he concludes the trial court erred in finding him guilty.\nDefendant\u2019s only citation to statutory or case law in this branch of his argument is to sections 312(g), (h) of the ControUed Substances Act, reading in pertinent part as foUows (Ill. Rev. Stat. 1975, ch. 56\u00bd, pars. 1312(g), (h)):\n\u201c(g) A person to whom or for whose use any controlled substance has been prescribed or dispensed by a practitioner9 9 9 may lawfuUy possess such substance only in the container in which it was delivered to him by the person dispensing such substance.\n(h) The responsibility for the proper prescribing or dispensing of controUed substances is upon the prescriber and the responsib\u00fcity for the proper filling of a prescription for controUed substance drugs rests with the pharmacist. \u201d *\nDefendant implies that because there was no showing that the pills found in his possession were not in appropriate prescription bottles pursuant to the foregoing statutory requirement, there was no proof that defendant did not possess them lawfully. This argument is grounded in a fundamental misapprehension of the nature of the crime charged. Under section 402 of the Act (Ill. Rev. Stat. 1975, ch. 56\u00bd, par. 1402), the violation of which was the basis of counts II and III, it was unlawful for any person knowingly to possess a controUed substance \u201c[e]xcept as otherwise authorized by this Act.\u201d No provision in the Act would allow defendant knowingly to possess a controUed substance which was prescribed for and dispensed to another person to whom he is not related. Subsections 312(g) and 312(h) of the Act, on which defendant rehes, are plainly restrictive in purpose and do not impliedly suggest a person may himself lawfully possess a prescription made out for and dispensed to another as long as it is in the proper container. Compare section 102(ss), which defines \u201cultimate user\u201d (Ill. Rev. Stat. 1975, ch. 56\u00bd, par. 1102(ss) as a person who lawfully possesses a controUed substance for his own use or for the use of a member of his household 9 9 9.\u201d Nowhere in the record, however, is there any evidence that Messrs. Barrett and LaGrone or any other people whose prescriptions were found in defendant\u2019s car trunk were members of his household, nor does defendant make this assertion on appeal.\nThe elements of knowledge and possession, unchallenged by defendant on appeal, were also sufficiently proved. Actual physical possession need not be shown to support a conviction under the Act; constructive possession is satisfactory. Knowledge may be proved by acts, declarations or conduct from which it may fairly be inferred that defendant knew of the existence of the drugs at the place where they were found. (People v. Galloway (1963), 28 Ill. 2d 355,192 N.E.2d 370.) Controlled substances found in a defendant\u2019s automobile in a place where he could or should have been aware of them provide sufficient evidence of his knowledge and control to sustain a conviction. People v. Davis (1965), 33 Ill. 2d 134, 210 N.E.2d 530; People v. Pagliara (1977), 47 Ill. App. 3d 708, 715, 365 N.E.2d 72, cert, denied (1978), 434 U.S. 1069, 55 L. Ed. 2d 772, 98 S. Ct. 1250.\nII.\nDefendant next argues that he was not proved guilty beyond a reasonable doubt of bribery. His position is based upon the fact, testified to by defendant and Officers Duhig, Tanning and Boyte, that shortly before defendant tendered the bribe money to the police he had been asking about having a bond set. According to defendant, his conduct was \u201csubject to [the] interpretation\u201d that he had offered the money in order to make bond. He draws an analogy between the instant case and \u201ca case of circumstantial evidence, where inferences are raised,\u201d citing People v. Meeks (1978), 59 Ill. App. 3d 521, 526, 375 N.E.2d 1001, for the principle that \u201c[w]here * * * proof of [a defendant\u2019s] guilt is circumstantial, the circumstances proved must not only be consistent with [his] guilt but also inconsistent with any reasonable hypothesis of [his] innocence. [Citation.]\u201d Based upon his contention that his conduct in offering the money to the officers was not inconsistent with a reasonable hypothesis of innocence, defendant concludes that the court erred in finding him guilty beyond a reasonable doubt. Under the facts in this case, a hypothesis of innocence would be unreasonable. In his brief defendant interweaves direct and cross-examination testimony of Officer Duhig, apparently in order to suggest that defendant\u2019s inquiries as to setting bond occurred at precisely the same time as he was offering the money. Duhig\u2019s testimony, however, supported by that of Tanning and Boyte, establishes that defendant\u2019s acts constituting the bribe occurred after he had inquired about making bond and after he had been told by Duhig that \u201c\u201d \u00b0 6 any narcotics violations is a judge\u2019s bond and I [Duhig] wouldn\u2019t have any idea what the bond or amount of the bond would be, and it has to be set by a judge.\u201d Defendant was told this repeatedly but persisted in offering the money in exchange for his freedom. At no time were defendant\u2019s offers of money, or his gesture of pushing the money towards the policemen, coupled with any reference to a bond.\nThe recent case of People v. Lugo (1976), 39 Ill. App. 3d 472, 349 N.E.2d 697, involved a similar factual situation. There two officers testified that defendant, while being processed at the police station pursuant to a misdemeanor arrest, told them, \u201c \u2018I\u2019m married. I have a baby. I\u2019ll give you $100. You let me go. You keep the gun and give me a chance.\u2019 \u201d (39 Ill. App. 3d 472, 473.) He then took the money out of his boot and offered it to the policemen. Under these facts, the court found \u201cthat to give effect to the words attributed to the defendant by the police officers\u2019 testimony other than bribery would be stretching an interpretation of words beyond credulity.\u201d 39 Ill. App. 3d 472, 475.\nNotwithstanding the foregoing, the principle that simultaneous possession of more than one type of controlled substance constitutes but a single offense for which there can be only one conviction, although not raised by either party, compels us to conclude that defendant\u2019s conviction on one of the counts under section 402(b) must be vacated. (People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200; People v. Dunlap (1978), 59 Ill. App. 3d 615, 622, 375 N.E.2d 989.) Where a person has been convicted of multiple offenses arising out of the same act or conduct, only the judgment and sentence for the more serious of the offenses may stand. (People v. Williams (1975), 60 Ill. 2d 1, 13, 322 N.E.2d 819; People v. Washington (1975), 29 Ill. App. 3d 536, 331 N.E.2d 169.) Methylphenidate is a Schedule III and diazepam a Schedule IV substance under the Act (Ill. Rev. Stat. 1975, ch. 56\u00bd, pars. 1208(c) (2), 1210(b)(7)). Offenses relating to Schedule III substances are treated as the more serious (Ill. Rev. Stat. 1975, ch. 56\u00bd, par. 1209(1)). Accordingly, we affirm defendant\u2019s conviction under count II, charging possession of methylphenidate, and vacate his conviction under count III, relating to diazepam.\nOur disposition of this case would not ordinarily require remand for resentencing, were the sentence imposed by the trial court clearly intended to run concurrently as to each count on which judgment was entered. On the state of this record, however, we cannot determine whether the sentence was concurrently or consecutively imposed, either as to the counts involving section 402(b) of the Act, or the bribery conviction, or both. (See People v. Snyder (1979), 459 Ill. 2d 77, 397 N.E.2d 799; cf. People v. Natoli (1979), 70 Ill. App. 3d 131, 387 N.E.2d 1096.) We must therefore remand the cause to the trial court for resentencing. People v. Toomer (1958), 14 Ill. 2d 385, 387, 152 N.E.2d 845; People v. Redmond (1979), 73 Ill. App. 3d 160, 390 N.E.2d 1364.\nFor the reasons set forth above, the judgment of the circuit court as to count I, for bribery, and as to count II, for possession of methylphenidate, is affirmed. The judgment as to count III is vacated. The cause is remanded for consideration of sentencing consistent with the views hereinabove expressed.\nAffirmed in part; reversed in part; and remanded for resentencing.\nSTAMOS, P. J., and PERLIN, J., concur.", "type": "majority", "author": "Mr. JUSTICE HARTMAN" } ], "attorneys": [ "Marshall R. Weinberg, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFTON EVANS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 78-2123\nOpinion filed December 31, 1979.\nMarshall R. Weinberg, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0087-01", "first_page_order": 109, "last_page_order": 116 }