People v. McCurdy

2018 IL App (4th) 160137-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROI M. McCURDY, Defendant-Appellant.

NO. 4-16-0137

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

September 27, 2018

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County

No. 15CF553

Honorable John W. Belz, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices Steigmann and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court (1) modified the trial court's judgment by reducing defendant's conviction to a Class C misdemeanor for possession of not more than 2.5 grams of cannabis; (2) concluded it lacked jurisdiction to consider the propriety of certain assessments imposed by the circuit clerk; and (3) directed any presentence incarceration credit be applied to all eligible fines.

¶ 2 In July 2015, the State charged defendant, Troi M. McCurdy, with (1) manufacture or delivery of more than 500 grams but not more than 2000 grams of a substance containing cannabis (720 ILCS 550/5(e) (West 2014)) (count I), and (2) possession of more than 500 grams but not more than 2000 grams of a substance containing cannabis (720 ILCS 550/4(e) (West 2014)) (count II). In November 2015, a jury found defendant guilty of possession of more than 500 grams but not more than 2000 grams of cannabis, that is, count II. In February 2016, the trial court sentenced defendant to a term of three years and six months' imprisonment.

¶ 3 Defendant appeals, arguing (1) the State failed to prove him guilty beyond a reasonable doubt of a felony charge of possession of cannabis, (2) the circuit clerk improperly imposed certain fines, and (3) he was entitled to a $5 per day presentence incarceration credit toward all properly assessed fines and fees. For the following we reasons, we affirm the trial court's judgment as modified and direct any available presentence incarceration credit be applied to all eligible fines.

¶ 4 I. BACKGROUND

¶ 5 In July 2015, the State charged defendant with one count of manufacture or delivery of more than 500 grams but not more than 2000 grams of a substance containing cannabis (720 ILCS 550/5(e) (West 2014)), and one count of possession of more than 500 grams but not more than 2000 grams of a substance containing cannabis (720 ILCS 550/4(e) (West 2014)).

¶ 6 A. Jury Trial

¶ 7 In November 2015, the matter proceeded to a jury trial. We summarize only the evidence necessary to resolve this appeal.

¶ 8 1. Evan Delude

¶ 9 On February 27, 2015, Evan Delude, an officer with the Springfield police department, was on neighborhood patrol duty. Shortly after 6 p.m., Officer Delude observed an orange Dodge CLT parked on the side of the road near the corner of north 11th Street and Phillips Street. Although the vehicle was parked, the engine was running, and Officer Delude could see the illuminated taillights as he passed the vehicle. Officer Delude testified he knew the occupants of the vehicle from prior interactions, and he knew the driver, Daran Williams, and the passenger, defendant, had suspended driver's licenses.

¶ 10 Officer Delude testified he made a U-turn, stopped his marked squad car behind the orange Dodge, and activated his emergency lights. As Delude started to get out of his squad car, the driver exited the orange Dodge and rapidly approached the officer. As he approached Officer Delude, Williams said, "what the fuck is up," and raised his hands. Officer Delude advised Williams to return to his vehicle and informed him that he should not be driving on a suspended license.

¶ 11 During Officer Delude's exchange with the driver, defendant stepped out of the passenger side of the vehicle. Delude addressed defendant, stating, "Troi, get back in the vehicle." At that point, defendant began to "fast-walk eastbound across 11th Street." Officer Delude ordered defendant to stop, and defendant immediately began to sprint southeast. At the same time, the driver took off running in the opposite direction. Officer Delude decided to chase defendant rather than Williams. In explaining his decision, Officer Delude testified, "Because my belief, if someone was concealing contraband, possibly drugs or weapons, that they would probably not approach the officer. So as Troi began to run from me, I believed he was probably the one in some sort of possession of contraband."

¶ 12 According to Officer Delude, he apprehended defendant in the back yard of a house on 12th Street. As Delude rounded the corner of the house, he observed defendant emptying money from his pockets and attempting to conceal the money by kicking snow over it. Officer Delude testified he ordered defendant to get on the ground, and defendant again began to run. Defendant attempted to jump over a fence, but he tripped and landed on his stomach, concealing his right hand. Officer Delude pulled his firearm, held defendant at gunpoint, and ordered defendant to put his hands behind his back. Defendant complied, and Officer Delude placed him under arrest and escorted him to another responding officer's vehicle.

¶ 13 After placing defendant in the other officer's vehicle, Delude recovered the items defendant threw in the snow. According to Delude, he recovered defendant's wallet and $660 in cash. Officer Delude testified an additional $200 was recovered from defendant's person.

¶ 14 Following defendant's arrest, Delude returned to the orange Dodge and began his search by looking around the vehicle to see if there was any contraband in plain view. In the backseat of the vehicle, Delude saw a shopping bag with two large, clear Ziploc bags containing what he believed to be marijuana. On the passenger seat floorboard, Delude saw another shopping bag with a Ziploc bag filled with raw cannabis. According to Delude, this bag would have been between defendant's legs when he was seated in the vehicle. Delude did not find rolling papers, other means of smoking marijuana, or devices used to prepare cannabis for smoking, such as a grinder. According to Delude, one cellular telephone was recovered from defendant's person, and no scales or firearms were recovered from defendant or the vehicle.

¶ 15 The three Ziploc bags of suspected cannabis were booked into evidence, combined, and sent to the State Police for testing. Delude testified he did not weigh the individual bags before he combined the contents. According to Delude, the combined contents weighed approximately 2 pounds, 10 ounces. The State introduced into evidence People's exhibit No. 4, which was a photograph Delude took of the combined marijuana. The photograph depicted some loose marijuana as well as two compressed bricks of marijuana. The State introduced People's exhibit No. 1 into evidence, which Delude identified as an evidence bag containing the combined marijuana recovered from the vehicle.

¶ 16 2. Peter Anzalone

¶ 17 Peter Anzalone, a forensic scientist specializing in drug chemistry, testified he worked for the Illinois State Police analyzing evidence for the presence of controlled substancesand cannabis. Anzalone identified People's exhibit No. 1 as plant material he analyzed. Anzalone testified he first removed the plant material from the evidence bag and determined the material weighed 1053 grams. According to Anzalone, he took a small, representative sample approximately the size of a quarter and performed a microscopic examination. The microscopic examination was positive for cystolithic hairs and fine covering hairs, indicating the presence of cannabis. Anzalone then performed the Duquenois-Levine test, a chemical color test, which was positive for cannabis.

¶ 18 B. Verdict and Sentence

¶ 19 Following deliberation, the jury found defendant guilty of possession of more than 500 grams but not more than 2000 grams of cannabis and acquitted him of the manufacture or delivery count.

¶ 20 In February 2016, the trial court sentenced defendant to a term of three years and six months' imprisonment on count II, possession. The court properly imposed various fines, as reflected in a written order regarding fines and fees. The circuit clerk imposed the following additional assessments: (1) a $50 court-systems assessment, (2) a $10 child-advocacy assessment, (3) a $15 "ISP OP" assistance fund assessment, (4) $5 drug-court fee, and (5) a $100 victims-assistance assessment.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 On appeal, defendant argues (1) the State failed to prove him guilty beyond a reasonable doubt of a felony charge of possession of cannabis, (2) the circuit clerk improperly imposed certain fines, and (3) he was entitled to a $5-per-day presentence-incarceration credit toward all properly assessed creditable fines and fees. We address these arguments in turn.

¶ 24 A. Sufficiency of the Evidence

¶ 25 Defendant contends the State failed to prove he knowingly possessed more than 500 grams of marijuana because Officer Delude combined the contents of the three bags before they were separately weighed or tested. Accordingly, defendant asks this court to reverse his Class 3 felony conviction (720 ILCS 550/4(e) (West 2014)) and reduce his conviction to Class C misdemeanor for possession of not more than 2.5 grams of cannabis (720 ILCS 550/4(a) (West 2014)). The State appears to concede the commingling of the three bags prevented the State from proving beyond a reasonable doubt that defendant possessed more than 500 grams of cannabis. Instead, the State argues it proved defendant possessed at least 30 grams of marijuana. According to the State, the testing showed that at least one of the three bags contained marijuana, and the testimony established the three bags had roughly the same amount of marijuana. Because the total weight of the three bags was 1053 grams, the State argues it proved defendant possessed at least 30 grams of marijuana. Defendant had a...