People v. Curry

2018 IL App (1st) 152616

100 N.E.3d 482

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jarrod CURRY, Defendant–Appellant.

No. 1–15–2616

Appellate Court of Illinois, First District, SIXTH DIVISION.

FEBRUARY 13, 2018

Michael J. Pelletier, Patricia Mysza, and Meredith N. Baron, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Clare Wesolik Connolly, Mary P. Needham, and Scheagbe Mayumi Grigsby, Assistant State's Attorneys, of counsel), for the People.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, the defendant-appellant, Jarrod Curry, was convicted of armed violence (count I), possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin (count II), and possession of a controlled substance with intent to deliver less than 1 gram of cocaine within 100 feet of a park (count III). He was sentenced to 15 years' imprisonment on count I, 15 years' imprisonment on count II, and 5 years' imprisonment on count III, with all three sentences to run concurrently. The defendant now appeals. For the following reasons, we affirm the judgment of the circuit court of Cook County in part, vacate the judgment in part, order the mittimus to be corrected, and order the fines and fees to be corrected.

¶ 2 BACKGROUND

¶ 3 At the defendant's bench trial, Sergeant David Koenig, Officer Jose Rojas, and Officer Richard Piek of the Chicago Police Department testified on behalf of the State. The officers testified that on October 19, 2013, at 8:40 a.m., 12 police officers executed a search warrant at the second-floor rear apartment at 1444 South Trumbull Avenue, Chicago, Illinois. The search warrant was based on a report that a man named "Tony" was selling drugs out of that apartment. The officers were all in civilian dress, but were readily identifiable as police officers because they wore vests, outer stars, weapons, radios, handcuffs, and duty belts. The police officers approached the apartment from the rear alley and saw the defendant standing on the second-floor landing near the back door of the apartment. They saw the defendant turn, face them, and "pull like his right side, like the waistband area, and proceed to run into the second-floor apartment," closing the door behind him. Within minutes, the police officers knocked on the door, yelled "Chicago Police," and made a forced entry through the back door.

¶ 4 Once inside, Officer Rojas saw the defendant running toward the front door and pursued him into the interior stairwell. Sergeant Koenig and Officer Piek followed a few feet behind Officer Rojas. Once they were inside the interior stairwell, Officer Rojas observed the defendant "go into his right waistband area along with his right hand and his left hand go into the [front sweatshirt pocket]" and discard two items onto the second-floor landing. Sergeant Koenig also saw the defendant retrieve something from the right side of his body and "flee as he was discarding the items." Officer Rojas picked up the discarded items, which consisted of a "plastic baggie containing numerous pink tinted Ziploc baggies of suspect heroin," and a .25–caliber Beretta with six live rounds, including one in the chamber. Sergeant Koenig pursued the defendant down the stairs and out of the building, where the defendant was detained by two officers who had been waiting on the sidewalk.

¶ 5 The police officers searched the apartment. They found two females who lived in the apartment. They also recovered "three rubber band pink tinted Ziploc baggies of suspect heroin, as well as four clear plastic knotted baggies of suspect crack cocaine, and [$37] on top of the kitchen cabinet."

¶ 6 The police officers then took the defendant to the police station, where Officer Rojas and Officer Piek interrogated him. Both officers testified that the defendant told them he was selling heroin and crack for a guy named "Young Money," who dropped drugs off at the apartment every day at 7 a.m. He also told them that he had been living in the apartment for a couple of months and that the drugs and gun belonged to him and "not the girl that was in the apartment." The defendant explained that he had the gun because "he didn't want to be robbed or stuck up by someone or a crew."

¶ 7 The parties stipulated that Daniel Bryant, a forensic scientist with the Illinois State Police, would testify that 38 items found by the police in the apartment tested positive for 15.2 grams of heroin and another item tested positive for 0.1 gram of cocaine.

¶ 8 After the State rested, the trial continued with the defendant's testimony. The defendant testified that, on October 19, 2013, he went to retrieve a bus card from his friend, Charita, who lived at the apartment. He arrived at the apartment at 8 a.m. and was there with Charita and her mother for 15 minutes when the police officers came in with guns drawn and masks on. He put his hands up when told to do so by the police. The police officers then put defendant in handcuffs in the living room while they searched the apartment. Two officers emerged from the kitchen and showed the gun and drugs to the defendant, saying "We found your merch." The defendant told the officers that they could put it back in their pockets as that is where they got it from.

¶ 9 The defendant denied that he ever told the police officers that he had a gun for protection, that he sold drugs, or that he worked for someone named "Young Money." He further denied that he ran, threw a gun, or threw any drugs. The defense rested after his testimony.

¶ 10 At the end of the trial, the court stated that it found the officers to be more credible than the defendant. The trial court then found the defendant guilty of armed violence (count I), possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin (count II), and possession of a controlled substance with intent to deliver less than 1 gram of cocaine within 100 feet of a park (count III). In finding the defendant guilty of armed violence, the court stated: "In this situation, the officers saw the defendant with both the drugs and the gun. So he was armed with a gun at the same time that he had the drugs on his possession."

¶ 11 The trial court sentenced the defendant to 15 years' imprisonment on count I, 15 years' imprisonment on count II, and 5 years' imprisonment on count III, with all three sentences to run concurrently. The defendant subsequently filed this notice of appeal.

¶ 12 ANALYSIS

¶ 13 We note that we have jurisdiction to review the trial court's order, as the defendant filed a timely notice of appeal. Ill. S.Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014).

¶ 14 The defendant now makes four separate arguments: (1) that the State failed to prove him guilty of armed violence beyond a reasonable doubt where there was insufficient evidence that he had immediate access to or timely control over the gun, (2) that, alternatively, this court must vacate his conviction for possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin because it violates the one-act, one-crime rule, (3) that this court should correct the mittimus to clarify that he was sentenced for committing a Class X felony and not, as it currently states, sentenced as a Class X offender, and (4) that his fines and fees order must be corrected to vacate the $5 electronic citation fee and to apply presentence custody credit against the assessed $15 state police operations "fee" and $50 court system "fee," which are actually fines subject to offset. We take each argument in turn.

¶ 15 The defendant first argues that the State failed to prove him guilty of armed violence beyond a reasonable doubt. Relying on People v. Smith , 191 Ill. 2d 408, 247 Ill.Dec. 458, 732 N.E.2d 513 (2000), the defendant claims that in order to be convicted of armed violence, a defendant must have immediate access or timely control over a weapon at the time he is confronted by police. The defendant argues that he discarded the gun "mere moments" into his flight from the police and before his arrest, and thus, his armed violence conviction is contrary to the purpose of the armed violence statute.

¶ 16 We note that the parties disagree over the standard of review. The defendant claims that because the relevant facts are not in dispute, we must review this issue de novo . The State argues that the defendant is challenging the sufficiency of an element of the armed violence conviction, so that we should review the evidence in the light most favorable to the prosecution and ask if any rational trier of fact could have found guilt proven beyond a reasonable doubt. We agree with the State. De novo review applies only when the facts are not in dispute and the defendant's guilt is a question of law. Id. at 411, 247 Ill.Dec. 458, 732 N.E.2d 513. While the defendant's brief refers to the State's evidence that he discarded the gun while fleeing from the police, he does not acknowledge that there were disputed facts at trial. Significantly, at trial, the defendant denied that he possessed a gun, possessed drugs, or ran from the police. The defendant's guilt is not a question of law, as he is challenging the sufficiency of the evidence to prove an element of the armed violence conviction, that is, whether he was "armed." Accordingly, we must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. People v. Beauchamp , 241 Ill. 2d 1, 8, 348 Ill.Dec. 366, 944 N.E.2d 319 (2011).

¶ 17 A person commits armed violence when he commits certain felonies, including possession of drugs with intent to deliver, "while armed with a dangerous weapon." 720 ILCS 5/33A–2(a) (West 2012...