People v. Anderson (364 Ill. App. 3d 528, 2006)

JUSTICE O’MALLEY

delivered the opinion of the court:

Defendant, Antonio L. Anderson, appeals his conviction of armed violence predicated on possession with intent to distribute a look-alike substance (720 ILCS 5/33A — 2(a) (West 2002); 720 ILCS 570/404(b) (West 2002)). Defendant argues: (1) the predicate felony was not proved because the substance he possessed could not reasonably be mistaken for crack cocaine as was charged in the indictment; and (2) armed violence was not proved because he discarded his gun before the police arrested him. We reject defendant’s arguments and affirm.

BACKGROUND

Defendant’s case was tried to the bench. Many of the facts are undisputed. On November 13, 2003, Officers Jeffrey Koehn and Randy Berke drove to the Jane Addams Housing Project in Rockford in response to a report that a black man wearing all black clothing had been seen discharging a firearm. The officers were wearing plainclothes and driving an unmarked car. When they arrived at the scene, the officers saw a black man, dressed entirely in black, duck down behind a wooden fence. The man was later identified as defendant. Upon seeing defendant, the officers stopped their car, stepped out, and identified themselves to defendant as police officers, at which point defendant fled into the courtyard of the housing development. The officers pursued. As defendant ran, he threw a gun down near a fence. The officers had not seen the gun in defendant’s possession before this time. After throwing the gun, defendant ran about 25 feet farther before he stopped and surrendered to the officers. Officer Koehn restrained defendant while Officer Berke immediately ran back and found the gun that defendant had thrown down. Officer Berke remained with the gun, a semiautomatic pistol, until additional officers arrived, one of whom retrieved the gun and processed it as evidence. No ammunition was found with the gun nor were any shell casings found in the area where defendant was arrested. The gun was dusted for fingerprints but none were found.

While Officer Berke was guarding the gun, Officer Koehn arrested defendant. A search of defendant’s person revealed several baggies. Some of the baggies contained a plant-like substance that later tested positive for the presence of cannabis. The eight remaining baggies contained an off-white, chunky substance. When Officer Koehn discovered these baggies, defendant said, “That’s just peanuts, man.” The material did not test positive for any illegal substance. The lab technician who tested the material described it as a “loose chunky substance.”

Defendant was taken into custody and interviewed. He repeatedly denied “[knowing] anything about a handgun” and suggested that the gun found by the officers might have been related to the many shootings that had recently occurred in the housing development. Defendant stated that the off-white, chunky substance found in his possession was actually peanut pieces that he had taken from his aunt’s bag of trail mix with the design of selling them as crack cocaine at the housing development. Defendant said that he began his attempts to sell the substance earlier on the day of his arrest and that his attempts were unsuccessful.

Officer Koehn testified that he has experience in drug interdiction. He testified that, upon first seeing the off-white, chunky substance, he “immediately formed an assumption that it was crack cocaine.” When shown the substance at trial, Officer Koehn continued to opine that it resembled crack cocaine. Officer Koehn explained that his opinion was based on both the “appearance” of the substance and its “packaging,” which were consistent with how crack cocaine is packaged.

Over defendant’s objection, the trial court recognized Officer Berke as an expert in the field of narcotics trafficking. Officer Berke testified that the number of baggies in defendant’s possession containing the off-white, chunky substance was inconsistent with personal use of crack cocaine because “a user will not purchase eight individual bags [of crack cocaine] at a time.”

After the State rested, defendant testified. He stated that he was at his aunt’s house in the afternoon on the day of his arrest. He took peanuts from his aunt’s trail mix and placed them into eight individual baggies. Defendant identified the baggies in evidence as the ones he packed the day of his arrest. Defendant testified that he went from his aunt’s house to the Jane Addams Housing Project, where he attempted to sell the peanuts as crack cocaine. Defendant testified that “[d]ue to the color [of the peanuts], no one would buy from me.” After about an hour of failed solicitation, defendant went to a friend’s house. On the way home, he passed through the Jane Addams development again. As he was walking, he saw a car approach with two men inside. Defendant did not recognize the men and did not know they were police officers. When the men shouted at him, he ran because the car the men were driving was similar to cars owned by people with whom he was not on good terms. The men chased him. Defendant did not hear them identify themselves as police officers. As defendant ran, he encountered uniformed police officers who ordered him to lie down on the ground, and he complied. Defendant testified that he had already given up any intention of selling the fake crack cocaine when the police encountered him. Defendant denied that he carried any type of firearm on the day of his arrest.

In rebuttal, the State called Officer Koehn, who testified that the first thing he and Officer Berke did as they exited their car upon encountering defendant was to identify themselves as police officers. Officer Koehn testified that he and Officer Berke used clearly audible voices. When they called out to defendant, he began to run.

The trial court convicted defendant of armed violence predicated on possession with intent to deliver a look-alike substance. Defendant was sentenced to 15 years’ imprisonment. The trial court denied his motion for a new trial, and defendant filed this timely appeal.

ANALYSIS

On appeal, defendant argues that he was not proved guilty of possessing a look-alike substance or of armed violence. Defendant argues that the facts relevant to both issues are undisputed and therefore we should review the trial court’s determinations de novo. We initially agreed with defendant, which prompted the State to file a petition for rehearing asking us to reevaluate our position. We had the parties address whether and when a criminal conviction is reviewable de novo. The State claims that de novo review of a criminal conviction is restricted to questions of statutory interpretation. Defendant argues that de novo review extends as well to the application of criminal statutes to undisputed facts. Defendant’s view finds vindication in the decisions of our supreme court, where de novo review has been applied not just to the question of whether a statute was properly construed but also to whether the statutory elements were satisfied by the undisputed facts. See In re Ryan B., 212 Ill. 2d 226, 231 (2004); People v. Smith, 191 Ill. 2d 408, 411-13 (2000); People v. Lamborn, 185 Ill. 2d 585, 590 (1999).

For example, in Lamborn, the defendant argued that the photographs found in his possession did not meet the definition of child pornography under the Illinois statutes. The court framed the issue as purely a question of law, involving the meaning of “lewd exhibition” in the applicable statute. Lamborn, 185 Ill. 2d at 590, quoting 720 ILCS 5/11 — 20.1(a)(l)(vii), (a)(6) (West 1996). The court explained:

“We must review the photographs themselves and determine whether those photographs are lewd under the child pornography statute. We are not faced with reviewing the sufficiency of the evidence. Therefore, the de novo standard of review is the correct standard of review for this appeal.” Lamborn, 185 Ill. 2d at 590.

The supreme court proceeded to define “lewd exhibition” and to determine whether the photographs met that definition. The court reviewed both issues de novo. Justice Heiple dissented, accusing the majority of confusing the standards of review:

“The majority is undoubtedly correct that this court will review questions of statutory construction, such as the meaning of the term ‘lewd exhibition’ in the child pornography statute, under a de novo standard of review. [Citation.] The de novo standard of review, however, is completely inappropriate when this court reviews the sufficiency of the evidence in a child pornography case. No statute has been cited which requires interpretation by this court. Once the trier of fact makes a factual determination that the photographs in question depict the victims in poses which focus on their breasts and buttocks and are obviously intended to excite sexual desire,' this court has no authority to substitute its own judgment for that of the trier of fact. [Citation.] Rather, this court, as a court of review, must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.].” Lamborn, 185 Ill. 2d at 599-600 (Heiple, J., dissenting).

Later, in People v. Smith, 191 Ill. 2d 408 (2000), the supreme court was asked to determine whether the defendant committed armed violence based on simultaneous possession of a gun and drugs even though he threw the gun out of his apartment window as the police approached on the street to execute a search warrant at his apartment. Observing that the facts were not in dispute, the court characterized the defendant’s guilt as “a question of law, which we review de novo.” Smith, 191 Ill. 2d at 411. The court’s subsequent analysis consisted of determining whether the defendant’s conduct met the statutory elements of armed violence. Smith, 191 Ill. 2d at 412-13; see also In re Ryan B., 212 Ill. 2d 226, 231 (2004) (“Because respondent’s challenge to the sufficiency of the evidence against him does not question the credibility of the witnesses, but instead questions whether the uncontested facts were sufficient to prove the elements of sexual exploitation of a child, our review is de novo”).

According to the supreme court, where there is no dispute in the underlying facts, a criminal conviction may be reviewed de novo-, otherwise, the conviction should not be reversed unless no rational trier of fact could find the elements of the crime proved beyond a reasonable doubt. This approach raises some interesting questions. The first concerns what difference, if any, there should be in the degree of deference between a case where the conviction is based on a particular set of stipulated facts and a case where, though the facts are contested, the trial court adopts the same set of facts after resolving conflicts in the testimony. Say, for example, that the conviction in' Case One is based on a set of stipulated facts called Set A. On appeal, the defendant argues that the undisputed facts in Set A do not establish his guilt. In Case Two, the trial court is presented with Set A again but, as this is a contested trial, Set B, a conflicting set of facts, is presented as well. The trial court weighs the testimony, resolves the conflicts, and accepts Set A. On appeal from the conviction in Case Two, the defendant argues that the trial court should have accepted Set B. The reviewing court defers to the trial court’s resolution of the conflict and takes Set A as the underlying facts. It seems, then, that the reviewing court is in the same posture in both Case One and Case Two, and de novo review would be as appropriate in Case Two as in Case One despite the fact that the evidence in Case Two was in conflict.

Second, the supreme court’s approach raises the question of just what manner of factual conflict triggers deferential review. If the only factual conflict in the evidence has no consequence for the ultimate question of guilt or innocence, must that conflict dictate deferential review? For example, in Smith, the undisputed facts were as follows:

“[P]olice officers testified that they executed a search warrant at defendant’s apartment on June 22, 1994. As police approached the apartment building, they saw defendant drop a handgun out of the apartment window. The gun slid down the roof of the building’s porch and onto the ground, where police recovered it. The gun was not loaded. In the living room of the apartment, police found 2.5 grams of cocaine behind a couch and 2.1 grams of cannabis on a coffee table. Defendant was found in the bedroom near a window, the screen of which had been pushed outward. No other persons were found in the apartment, and no ammunition was discovered.” Smith, 191 Ill. 2d at 410.

The supreme court reversed the defendant’s conviction of armed violence “because he dropped the gun out of the window as soon as he became aware that police were approaching,” and thus “exhibited no propensity to violence.” Smith, 191 Ill. 2d at 412-13. If the defendant had testified and, contrary to the police’s account, claimed that he discarded the gun before he saw the police approach, there would have been a factual conflict over the timing of his disarming. Would that conflict have required the court to adopt the deferential “rational trier of fact” standard rather than the de novo standard? If so, would the result have been different, thus giving criminal defendants an incentive in some cases to abandon their versions of the facts in order to obtain less deferential review of their convictions?

These are questions for another case. Here, the parties raise no issue about the standard of review applicable to the armed violence conviction; both agree that de novo review is appropriate. They do disagree, however, over whether the conviction of possession of a lookalike substance should be reviewed de novo. We agree with the State that the evidence underlying that conviction presents a factual dispute about the likeness to crack cocaine of the substance found in defendant’s possession. The officers testified that the appearance of the substance was consistent with crack cocaine. The State asserts that this testimony was at odds with defendant’s claim that he had no success in selling the substance at the housing development because of the “color” of the substance. (Defendant, we note, did not himself opine about the similarity of the substance to crack cocaine.) Thus, the State concludes, the trial court had to weigh the officers’ testimony that the appearance of the substance was like crack cocaine against defendant’s claim that certain individuals at the housing project had rejected that substance because it did not have the color of crack cocaine. We agree with the State that the trial court was called on to weigh conflicting opinions about the substance’s similarity to crack cocaine. On appeal, defendant does not concede the truth of the officers’ testimony about the appearance