Petition for Writ of Certiorari — Gordon v. Illinois

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990-1658

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

NIGEL GORDON,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF THE STATE OF

ILLINOIS, FIRST JUDICIAL DISTRICT

FREDERICK F. COHN

205 W. Wacker Drive

Chicago, Illinois 60606

(312) 641-0692

Attorney for Petitioner

(la) QUESTIONS PRESENTED

1. Whether due process is denied

where defendant is convicted of

possession of controlled substance under

a constructive possession theory, where

the sole evidence against defendant is

his being a co-lessee with another in a

two bedroom apartment, and where the

contraband was found hidden in the

insulation of a refrigerator, and

defendant was not present when the

contraband was found, and there is no

evidence of when he was last in the

apartment?

2. Whether due process was denied

when the Appellate Court created evidence

that did not exist, and then relies on

that evidence?

(1b) PARTIES INVOLVED [per Rule 21.1(b)]

Petitioner, Nigel Gordon, was the

defendant in the Circuit Court of Cook

County, Illinois, appellant in the

Appellate Court of Illinois, and

petitioner in Petition for Leave to

Appeal filed in the Supreme Court of

Illinois. Respondent, People of the

State of Illinois, was plaintiff in the

Circuit Court of Cook County, Illinois,

appellee in the Appellate Court of

Illinois, and respondent in the Supreme

Court of Illinois,

iii

(lc) TABLE OF CONTENTS

Questions Presented

Parties Involved

Judgment, Opinion and Order Below

Jurisdictional Statement

Constitutional Provision

Statement of the Case

Raising the Federal Question

Reasons for Granting Certiorari

1. Due process is denied where

defendant is convicted of possession

of controlled substance under a

constructive possession theory, where

the sole evidence against defendant

is his being a co-lessee with another

in a two bedroom apartment, and where

the contraband was found hidden in

the insulation of a refrigerator, and

defendant was not present when the

contraband was found, and there is no

evidence of when he was last in the

apartment.

PAGE

Page

2. Due process was denied when

the Appellate Court created evidence

that did not exist, and then relies

on that evidence, 21

Conclusion

Appendices:

A. Illinois Appellate Court

Order dated October 16, 1990.

B. Illinois Appellate Court

Order denying Petition for

Rehearing, dated November 8,

1990.

C. Illinois Supreme Court

Order denying Petition

for Leave to Appeal, dated

February 6, 1991.

D. Testimony at Trial,

Tr. 61, 62, 63, 64, 82.

E. State's Statement of

Facts in State's Appellate

Court Brief.

(ld) Opinion Below

The lLllinois Appellate Court's Order

App.

affirming this cause is People v. Gordon,

and is not published and is attached as

Appendix A to this Petition.

TABLE OF AUTHORITIES

Cases

Bentley v. Cox, 508 F.Supp. 870

(1981)

Clark v. Florida, 359 So.2d 458

Commonwealth v. Duffy, 357 N.E.2d

330 (Mass. App. 19764)

Commonwealth v. Hicks, 364 A.24d

505 (Pa. Super.)

Commonwealth v. Luddy, 422 A.2d 601

Delgado v. United States, 327

F.2d 641 (9 Cir. 1964)

Edwards v. State, 385 N.E.2d 496

(19739, Ind. App.)

Embry v. Arkansas, 792 S.W.2d 318

(1990)

Flores v. State, 756 S.W.2d 86

(1988, Tex. App. San Antonio)

Franklin v. Commonwealth of

Kentucky, 490 S.W.2d 148

(Court of Appeals of Kentucky, 1973)

Gable v. Florida, 324 So.2d 97

(1975, Fla. App.)

vii

PAGE

Garrison v. Maryland, 321 A.2d 767

(1974, Ct.Appeals) 17

Giddens v. State, 443 So.2d 1087

(1984, Fla. App. D2) 16

Joshua v. State, 696 S.W.2d 451

(1985, Tex. App. Houston 14th Dist.) 18

McCray v. State, 501 So.2d 532

(1986, Ala. App.) 15

Nations v. State, 177 Ga.App. 801,

341 S.E.2d 482 (1986) 16

Neuroth v. Wyoming, 524 P.2d 590

(1974) 19

New Mexico v. Bowers, 87 N.M. 74,

529 P.2d 300 (1974) 17

People v. Antista, 276 P.2d 177

(District Court of Appeal, 1954) 15

People v. Davenport, 39 Mich.App.

252, 197 N.W.2d 251 (1972) 17

People v. Harris, 366 N.Y.S.2d

697, 47 A.D.2d 385 (Sup. Ct. 1975) 17

People v. Stead, 54 P.2d 323

(Colo. Sup. Ct.) L5

People v. Taggart, 380 N.Y.S.2d

168, 51 A.D.2d 863 (Sup. Ct. 1976) 18

viii

Pier v. State, 400 N.E.2d 209

(1980, Ind. App.)

Ravellette v. Arkansas, 571

S.W.2da 433 (1978, Sup.Ct. Ark.)

Reser v. State, 488 P.2d 929

(Crim. Appeals of Okla.)

Roth v. Oklahoma, 532 P.2d 1397

(1975, Okla. Cr.)

Smith v. Florida, 279 So.2d 27

(1973)

Smith v. State, 514 S.W.2d 749

(Tex. Crim.)

State v. Alfonso, 490 A.2d 75

(Sup.Ct. 1985)

State v. Fossett, 399 A.2d 966

(1979, NH)

State v. Fox, 709 P.2d 316

(Utah 1985)

State v. Garza, 735 P.2d 1089

(1987, Idaho App.)

State v. Harris, 451 P.2d 646

(Court of Appeals of Arizona, 1969)

State v. Harvey, 463 So.2d 706

(1985, La. App. 4 Cir.)

PAGE

State v. Haynes, 25 Ohio 2d 264,

267 N.F.2 7 (1971)

State v. McLaurin, 357 S.E.2d

636 (1987, Sup. Ct.)

State v. Reynolds, 669 S.W.2d 582

(1984, Mo. App.)

Temple v. State, 366 So.2d 740

(1978, Ala. App.)

Thompson v. United States, 293

A.2d 275 (D.C. Cir. 1972)

Townsend v. Burke, 334 U.S. 736,

92 L.Ed. 1690 (1947)

United States v. Bonhan, 477 F.2d

1137 (3 Cir. 1973)

United States v. Green, 652

F.Supp. 1312 (1987)

United States v. Larson, 760 F.2d

852 (1985, CA8 Minn.)

United States v. Tucker, 404 U.S.

443, 30 L.Ed.2d 592 (1972)

Uphaus v. Wyman, 360 U.S. 72,

3 L.Ed.2d 1090 (1957)

PAGE

Williams v. State, 498 S.W.2d 340

(Tex. Crim.)

Young v. Guste, 849 F.2d 970

(1988, CA5 La.)

Constitutional Provision

Fourteenth Amendment to the United

States Constitution

Statutes

26 U.8.C. 1257 (3)

Supreme Court Rule 20.1

Supreme Court Rule 29

PAGE

IN THE

SUPREME COURT OF THE UWITED STATES

OCTOBER TERM, 1990

No.

NIGEL GORDON,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF THE STATE OF

ILLINOIS, FIRST JUDICIAL DISTRICT

Petitioner, Nigel Gordon (hereafter,

defendant), prays that a writ of

certiorari issue to review the Illinois

Appellate Court for the First District,

affirming his conviction and sentence for

possession of a controlled substance, in

violation of Ill. Rev. Stat. 1985, Chap.

56 1/2, Sec. 1402(B), leave to appeal

having been denied by the Illinois

Supreme Court.

Judgment, Opinion and Order Below

The Order of the Appellate Court of

Iilinois, First Judicial District,

affirming the trial court judgment, is

set out as Appendix A. The Order of the

Appellate Court of Illinois, First

Judicial District, denying Petition for

Rehearing, is set out as Appendix B. The

Order of the Illinois Supreme Court

denying Petition for Leave to Appeal, is

set out as Appendix C.

Jurisdictional Statement

On October 16, 1990, the Illinois

Appellate Court, First Judicial District,

filed its Order affirming the judgment of

the Circuit Court of Cook County,

Illinois. (App. A) A Petition for

Rehearing, timely filed, was denied on

November 8, 1990. (App. B) Defendant's

Petition for Leave to Appeal, timely

filed, was denied by the Illinois Supreme

Court on February 6, 1991. (App. C)

This Petition is timely filed within 60

days thereafter. Jurisdiction is invoked

under 28 U.S.C. 1257(3) and Rules 20.1

and 29 of this Court.

Constitutional Provision

AMENDMENT [XIV]

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall ... deprive

any person of ... liberty, without due

process of law....

STATEMENT OF THE CASE

On December 8, 1987 at 8:45 o.m., John

Howard, Evanston Police Officer, entered

a residence at 7621 N. Greenview. He was

executing a search warrant. He entered

the apartment and found co-lessee,

Baldwin Phillips, and his girlfriend.

Cocaine was found hidden within the

insulation of the refrigerator. Officer

Howard testified:

"During the search of the

apartment found underneath the

ice box hidden in some

insulation there was a clear

plastic haggie, inside this

baggie there were 8 balls of tin

foil, inside each one of these

tin foil balls there was packets

that contained a white powder;

as much as 7 packets as I recall

there was 1 in each of these tin

foil packets, and as little as 3

or 4 in some of the others.

There was a total of 38

individually wrapped clear

packets." (Tr. 61)

It was stipulated that the items found

hidden were 8.8 grams of cocaine.

Found on the counter top was a box of

baggies, several cut corners of these

baggies and a portable hand scale. (Tr.

64) On the counter top in the kitchen

(Tr. 63), he found a prescription bottle

for penicillin pills prescribed to Nigel

Gordon four years earlier, August 24,

1983. There was no testimony as to the

proximity of the prescription bottle to

the drug paraphernalia. (Tr. 63)

Further evidence was presented that

Nigel. Gordon had signed the lease with

Baldwin Phillips for the apartment six

months earlier in June of 1987. (Tr.

106)

There was no evidence as to when Nigel

Gordon had last been in the apartment.

There was no evidence that Nigel Gordon

had any dealings with narcotics.

The court, based solely upon Nigel

Gordon's position as co-lessee, found the

defendant guilty of possession and

sentenced the defendant to four years.

RAISING THE FEDERAL QUESTION

In the trial court, the State

Appellate Court and the Petition for

Leave to Appeal to the State Supreme

Court, it was asserted that to find

defendant guilty based solely upon his

position as a co-lessee of the premises

denies due process. The Illinois

Appellate Court held due process was not

violated. (App. A, pp. 6-25) Raised in

the State Supreme Court (Petition for

Leave to Appeal) in addition to the

argument that to convict defendant based

On mere co-occupancy violated due

process, was that due process was denied

when the Appellate Court created evidence

that did not exist. The Petition for

Leave to Appeal was denied without

Opinion.

REASONS FOR GRANTING CERTIORARI

Due process is denied where defendant is

convicted of possession of controlled

substance under a constructive possession

theory, where the sole evidence against

defendant is his being a co-lessee with

another in a two bedroom apartment, and

where the contraband was found hidden in

the insulation of a refrigerator, and

defendant was not present when the

contraband was found, and there is no

evidence of when he was last in the

apartment.

This Court should grant a petition for

writ of certiorari because the issue is

of national importance. In present

society, many persons who are unrelated,

for financial convenience, share

apartments. One may possess

contraband. At issue is whether, with no

proof other than joint occupancy, can a

co-tenant, who is not present when police

find the contraband, be convicted of such

possession without violating due process.

The undisputed facts are that at 8:45

p.m. On December 8, 1987, Evanston Police

Officers executed a search warrant on a

second floor apartment to which the

defendant and Baldwin Phillips were co-

lessees, They had separate bedrooms.

Only co-lessee, Baldwin Phillips, and his

girlfriend were in the apartment.

Defendant was not present. (App. A, pod.

2, 5)

"A search of the kitchen

revealed a clear plastic bag

hidden in some of the insulation

underneath the refrigerator."

(App. A, pp. 2-3)

In the bag was 8.8 grams of cocaine.

Te . 86) 2 Found on a kitchen counter

1. Co-defendant was charged, as was

defendant. A severance was granted.

2. The Appellate Court misstated the

facts, asserting there was 8.8 ounces of

cocaine. This was a substantial error.

The stipulation was that there was 8.8

grams which is about one-third of an

Ounce. (Tr. 63)

were bags similar to those found with the

cocaine. (Tr. 63) Also found ate

kitchen counter was a prescription bottle

that had the defendant's name on it dated

four and one-half years earlier--August

24, 1983. (Tr. 64) There was no

testimony as to the size of the counter,

Or how close the bottle was to the other

items. (Tr. 63)2 There was no testimony

whether that prescription bottle had

anything in it. Defendant was not

present in the apartment when the

contraband was found, and there is no

3. The Appellate Court misstated that

fact by stating:

"On a counter next to the

refrigerator, the police found a

roll of plastic bags....

Resting on ton of the bags were

a prescription bottle, a bottle

of Superior Mannitol and a

portable hand scale, (App. A,

pp. 3-4)

evidence when he was last in the

apartment, i.e., no evidence that he was

in the apartment when the "drug

paraphernalia" was visible. There is no

evidence that defendant had prior

dealings with narcotics. There is no

action of defendant that demonstrates

guilty knowledge. There is no evidence

of furtive action when the police

arrived. There is no evidence of flight.

Hence, the sole evidence of

defendant's guilt was his position as co-

lessee. .

The Appellate Court held that

defendant, being a co-lessee, by itself,

justifies a finding that defendant had

knowing constructive control of the

contraband hidden in the kitchen. (App.

A, p. 10) The Appellate Court stated:

“Where a controlled substance is

found on premises under the

control of a defendant, an

inference of knowledge and

possession arises which may be

sufficient to sustain a

conviction of possession absent

other facts and cikcumstances

which leave a reasonable doubt

of defendant's guilt. (People

v. Nettles (1961), 23 Ill. 2

306, 178 N.E.2d 361.)" (App. A,

p. 10)

The Opinion of the Appellate Court

violates due process, because there is no

basis for a rational trier of fact to

find beyond reasonable doubt that

defendant's mere co-occupancy proves that

defendant with knowledge had constructive

possession. Finding constructive

possession by mere co-occupancy is

equivalent to finding “guilt by

association ... a thoroughly discredited

doctrine." Uphaus v. Wyman, 360 U.S. 72,

at 79, 3 L.Ed.2d 1090 (1957).

Although some State courts permit

constructive possession convictions based

On mere co-occupancy, the opinion of the

Illinois Appellate Court is contrary to

the prevaient holding of both State and

Federal reviewing courts.4

FEDERAL:

Delgado v. United States, 327 F.2d 641 (9

Cir. 1964)

United States v. Bonhan, 477 F.2d 1137 (3

Cir. 1973)

United States v. Larson, 760 F.2d 852

(1985, CA8 Mian.)

Young v. Guste, 849 F.2d 970 (1988, CA5

La.)

Thompson v. United States, 293 A.2d 275

(Uo... Cie. Lvval

Bentley v. Cox, 508 F.Supp. 870 (1981)

United States v. Green, 652 F.Supp. 1312

(1987)

—— _

4. Counsel for petitioner cannot find

cases in agreement or disagreement in the

following States: Alaska, Hawaii, Iowa,

Kansas, Maine, New Jersey, North Dakota,

Rhode Island, South Carolina, West

Virginia, and Wisconsin.

In accordance are many State reviewing

courts.

ALABAMA:

McCray v. State, 501 So.2d 532 (1986,

Ala. App.)

Temple v. State, 366 So.2d 740 (1978,

Ala. App.)

ARIZONA:

State v. Harris, 451 P.2d 646 (Court of

Appeals of Arizona, 1969)

ARKANSAS:

Embry v. Arkansas, 792 S.W.2d 318 (1990)

Ravellette v. Arkansas, 571 S.W.2d 433

(1978, Sup.Ct. Ark.)

CALIFORNIA:

People v. Antista, 276 P.2d 177 (District

Court of Appeal, 1954)

COLORADO:

People v. Stead, 54 P.2d 323 (Colo. Sup.

of FE

CONNECTICUT:

State v. Alfonso, 490 A.2d 75 (Sup.Ct.

1985)

FLORIDA:

Clark v. Florida, 359 So.2d 458

Gable v. Florida, 324 So.2d 97 (1975,

Fla. Aop.)

Giddens v. State, 443 So.2d 1087 (1984,

Fla. App. D2)

Smith v. Florida, 279 So.2d 27 (1973)

GEORGIA:

Nations v. State, 177 Ga.App. 801, 341

S.E.2d 482 (1986)

IDAHO:

State v. Garza, 735 P.2d 1089 (1987,

Idaho App.)

INDIANA:

Edwards v. State, 385 N.E.2d 496 (1979,

Ind. App.)

Pier v. State, 400 N.E.2d 209 (1980, Ind.

App.)

KENTUCKY:

Franklin v. Commonwealth of Kentucky, 490

S.W.2d 148 (Court of Appeals of Kentucky,

1973)

LOUISIANA:

State v. Harvey, 463 So.2d 706 (1985, La.

App. 4 Cir.)

MARYLAND:

Garrison v. Maryland, 321 A.2d 767 (1974,

Ct.Appeals)

MASSACHUSETTS:

Commonwealth v. Duffy, 357 N.E.2d 330

(Mass. App. 1976)

MICHIGAN:

People v. Davenport, 39 Mich.App. 252,

197 N.W.2d 251 (1972)

MISSOURI:

State v. Reynolds, 669 S.W.2d 582 (1984,

Mo. App.)

NEW HAMPSHIRE:

State v. Fossett, 399 A.2d 966 (1979, NH)

NEW MEXICO:

New Mexico v. Bowers, 87 N.M. 74, 529

P.2d 300 (1974)

NEW YORK:

People v. Harris, 366 N.Y.S.2d 697, 47

A.D.2d 385 (Sup. Ct. 1975)

People v. Taggart, 380 N.Y.S.2d 168, 51

A.D.2d 863 (Sup. Ct. 1976)

NORTH CAROLINA:

State v. McLaurin, 357 S.E.2d 636 (1987,

Sup. Ct.)

OHIO:

State v. Haynes, 25 Ohio 2d 264, 267

N.5.2d 787 (1971)

OKLAHOMA :

Reser v. State, 488 P.2d 929 (Crim,

Appeals of Okla.)

Roth v. Oklahoma, 532 P.2d 1397 (1975,

Okla. Cr.)

PENNSYLVANIA:

Commonwealth v. Hicks, 364 A.2d 505 (Pa.

Super.)

Commonwealth v. Luddy, 422 A.2d 601

TEXAS:

Flores v. State, 756 S.W.2d 86 (1988,

Tex. App. San Antonio)

Joshua v. State, 696 S.W.2d 451 (1985,

Tex. App. Houston 14th Dist.)

Smith v. State, 514 S.W.2d 749 (Tex.

Crim.)

Williams v. State, 498 S.W.2d 340 (Tex.

Crim.)

UTAH:

State v. Fox, 709 P.2d 316 (Utah 1985)

WYOMING:

Neuroth v. Wyoming, 524 P.2d 590 (1974)

In Delgado_v. United States, supra,

the Court, in reversing, stated:

"It is fundamental to our system

of criminal law that guilt is

individual. Here, that means

that there must be sufficient

evidence to Support a finding,

as to each defendant, that he or

she had possession of the

marijuana. Possession can be

joint as well as several,

‘constructive’ as well as

‘actual’. It must also be

knowing. But here it is pure

Speculation as to whether

Rodriguez alone, or Delgado

alone or both of them had

possession. No doubt one of

them did; perhaps both did. But

proof that does not give a

rational basis for resolving the

doubts necessarily present in

the situation pictured to the

jury in this case is not

sufficient." 327 F.2d at 641.

Due process would be violated by

Sustaining defendant's conviction because

there is no basis for a rational trier of

fact to Find defendant had knowledge of

the contraband,

This Court should grant certiorari to

set the standard for all State and

Federal Courts on whether mere co-

occupancy of an apartment can justify a

conviction,

Due process was denied when the Appellate

Court created evidence that did not

exist, and then relies on that evidence.

The Appellate Court misstated the

facts. The court stated:

"On a counter next to the

refrigerator, the police found a

roll of plastic bags and some

cut pieces of plastic which were

Similar to those plastic packets

containing cocaine found under

the refrigerator. Some of the

bags had their corners cut off,

and Howard explained that these

corner pieces are frequently

used to package cocaine,

Resting on top of the bags were

a pcescription bottle, a bottle

of Superior Mannitol and a

portable hand scale. (Aovp. A,

pp. 3-4)

It is error to state that the

prescription bottle was on top of the

baggies. They were just on the same

counter. The testimony as to what was

found where (Tr. 61, 62, 63, 64, 82) is

attached as Appendix D. Further proof of

the Appellate Court's misconception of

the facts is the State's Brief in the

Appellate Court. The State, in its

Statement of Facts, merely asserts that

defendant's bottle was on a counter. See

Appendix E.

For the Appellate Court to rely on

facts that do not exist violates

defendant's right to due process. Just

as due process is violated when a trial

court sentences a defendant based upon an

“assumption concerning his criminal

record which were materially untrue,”

Townsend v. Burke, 334 U.S. 736, 92 L.Ed.

1690 (1947), id. at 741, 92 L.Ed. at

1693; United States v. Tucker, 404 U.S.

443, 30 L.Ed.2d 592 (1972), due process

must be deemed violated where an

Appellate Court sustains a conviction

based upon facts that are materially

untrue. That is the case here,

Certiorari should be granted on this

issue,

CONCLUS ION

For the foregoing.reasons, the

petition for writ of certiorari should be

granted.

Respectfully submitted,

FREDERICK F. COHN

Attorney for Petitioner

APPENDICES

APPENDIX A

App. l

SECOND DIVISION

October 16, 1990

NOTICE

The text of this order may be changed or

corrected prior to the time for filing of

a Petition for Rehearing or the

disposition of the same.

No. 1-89-3496

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

PEOPLE OF THE STATE

OF ILLINOIS,

Plaintiff-Appellee,

Appeal from the

Circuit Court of

Cook County.

No. 88 CR 732901

Honorable

Marcia B. Orr,

Judge Presiding.

Vs.

NIGEL GORDON,

)

Defendant-Appellant. )

ORDER

Following a bench trial in the circuit

court of Cook County defendant Nigel

Gordon was found guilty of possession of

a controlled substance (Ill. Rev. Stat.

1985, ch. 56 1/2, par. 1402(B)) and

possession of a controlled substance with

App. 2

intent to deliver. (Ill. Rev. Stat.

1985, ch. 56 1/2, par. 1401(B) (2).) \

Judgment was entered on the latter

conviction, and defendant was sentenced

to four years imprisonment. On appeal

defendant contends that he was denied due

process of law because the evidence was

legally insufficient to convict him,

About 8:45 p.m. on December 8, 1987,

Evanston Police Officers John Howard and

Gregory Tomscyk and Chicago police

officers executed a search warrant for a

second-floor apartment located at 7621

North Greenview in Chicago, Illinois.

Baldwin Phillips and a woman were in the

apartment, but defendant was not

present. A search of the kitchen

revealed a clear plastic bag hidden in

some insulation underneath the

App. 3

refrigerator. In the bag were eight

balls of tinfoil, and in each of these

balls were individually wrapped clear

packets containing white powder. There

were 38 packets altogether. Lab results

of the powder, entered by stipulation,

established that the packets contained a

total of 8.8 ounces 9f cocaine.

On a counter next to the refrigerator,

the police found a roll of plastic bags

and some cut pieces of plastic which were

Similar to those plastic packets

containing cocaine found under the

refrigerator. Some of the bags had their

corners cut off, and Howard explained

that these corner pieces are frequently

used to package cocaine. Resting on top

of the bags were a prescription bottle, a

App. 4

bottle of Superior Mannitol and a

portable hand scale. The prescription

bottle had defendant's name on it and was

dated August 24, 1983. Howard said that

Superior Mannitol was commonly used as a

cutting agent for cocaine and a scale was

frequently used to weigh narcotics.

In the front hallway of the building

there was a mailbox with the names "N,

Gordon" and "B. Phillps" for the second-

floor apartment. Betty Coleman, the

agent and manager for the owner of the

building, testified that she showed the

apartment to defendant, who went by the

name Nigel Gordy, and Phillips on June 2,

1987. Defendant and Phillips signed a

lease for the apartment, and Coleman

Observed defendant move into the

apartment a few days later. Coleman saw

App. 5

defendant in the apartment on several

occasions, defendant gave her the rent

money several times, and defendant's name

was often on the money orders used to pay

the rent. To the best of her knowledge,

defendant was still leasing the apartment

on December 8, 1987. There was also

testimony that a third person lived in

the apartment.

Defendant was never present in the

apartment during the search. He was

arrested on March 1, 1988, when he

Surrendered to the Evanston police

department. Defendant's bond slip,

issued on March 2, 1988, was entered into

evidence. Under defendant's signature on

the bond slip, was defendant's address

listed as 7621 North Greenview, apartment

2 in Chicago,

App. 6

Defendant did not present any

evidence. After closing arguments,

defendant was found guilty of both

counts. The trial court found that

defendant was proven to have control over

the premises beyond a reasonable doubt

and that an inference of knowledge and

possession arose therefrom which was not

rebutted by any other evidence.

In defendant's only issue on appeal,

he claims that he was denied due process

of law because the evidence was legally

insufficient to convict him beyond a

reasonable doubt. He argues in Support

of his claim that the controlled

substance was hidden from view; he was

not present when the substance was found;

others lived in the apartment; and there

was no evidence as to the last time he

App. 7

was present in the apartment. Based upon

these facts, defendant asserts that the

State failed to prove that he knowingly

possessed the cocaine.

Initially we address defendant's

assertion that since the evidence in this

case is totally circumstantial, his guilt

must be thoroughly established so as to

exclude every other reasonable hypothesis

of innocence. (People v. Garrett (1975),

62 T11. 24 151, 339-N.£.2d 753.) The

Illinois Supreme Court has rejected the

reasonable hypothesis of innocence

Standard of review in People v. Pintos

(1989), 133 Ill. 2d 286, 549 N.E.2d 344,

and in People v. Eyler (1989), 133 Ill.

2d 173, 549 N.E.2d 268. Instead, the

reasonable doubt test as set forth in

People v. Collins (1986), 106 Ill. 2d

App. 8

237, 478 N.E.2d 267, is applied in all

criminal cases whether the evidence is

direct or circumstantial. (People v.

Pintos, 113 Ill. 2d at 291.) The proper

Standard of review is whether, after

viewing the evidence in the light most

favorable to the prosecution, any

rational trier of fact could have found

the essential elements of the crime

beyond a reasonable doubt. People v.

Collins, 106 Ill. 2d at 261; People v.

Griffin (1990), 194 Ill. App. 3d 286, 550

N.E.2d 1244.

Although defendant cites a number of

cases from other state and federal

courts, we are not bound to follow these

other tribunals. (Corbett v. Devon Bank

(1973), 12 Ill. App. 3d 559, 299 N.E.2d

521.) Under Illinois law, in order to

App. 9

prove possession of a controlled

Substance, the State must show that

defendant knew of a controlled

substance's presence and that the

Substance was in defendant's immediate

and exclusive control. (People v.

Griffin.) Possession may be established

by evidence of actual physical possession

Or constructive possession. (People v.

Gallagher (1990), 193 Ill. App. 3d 566,

550 N.&.2d 255.) Constructive possession

is that which exists without personal

present dominion over a chattel, but with

an intent and capability to maintain

control and dominion. (People v. Rentsch

(1988), 167 Ill. App. 3d 368, 521 N.E.2d

213.) Mere access by other persons is no

defense as defendant's possession may be

joint with another. (People v. Romero

+e ae

App. 10

(1989), 189 Ill. App. 3d 749, 546 N.FE.2d

7.) Where a controlled substance is

found on premises under the control of a

defendant, an inference of knowledge and

possession arises which may be sufficient

to sustain a conviction of possession

absent other facts and circumstances

which leave a reasonable doubt of

defendant's guilt. (People v. Nettles

(1961), 23 Ill. 2d 306, 178 N.E.2d

361.) Whether defendant had possession

and knowledge is a question of fact, and

the findings of the trier of fact will

not be reversed unless the evidence is so

palpably contrary to the finding or so

improbable as to create a reasonable

doubt of guilt. People v. Romero, 189

Sais App. 30 at 754.

App. ll

The evidence herein established that

the premises were under defendant's

control. The apartment was leased by

defendant as a co-tenant. He was seen

moving into the apartment after leasing

it, and he was periodically seen in the

apartment. He often paid the rent and on

occasion made the payment in person,

Defendant's name was on the mailbox for

the apartment. (People v. Valentin

(1985), 135 Ill. App. 3d 22, 480 N.E.2d

1351.) <A prescription bottle with

defendant's name on it was found in the

apartment, which is highly probative.

(See People v. Birge (1985), 137 Ill.

App. 3d 781, 485 N.&.2d 37.) Although

the bottle was dated August 24, 1983, we

do not find that this fact defeats the

Significance of the bottle which clearly

App. 12

carried defendant's name. There was no

evidence that defendant lived in or

rented the apartment earlier than June,

1987. In addition, defendant listed the

same apartment address as his address on

his bond slip after arrest. See People

v. Marshall (1988), 165 Ill. App. 3d 968,

521 N.&.2d 538; People v. Birge.

Although there was evidence that other

persons were also tenants of the

apartment and had access to it, the

requirement of exclusive control of the

premises by defendant does not allow him

to defeat prosecution simply by a showing

of joint control. (People v. Trask

(1988), 167 Ill. App. 3d 694, 521 N.E.2d

1222.) Mere access by others to the area

where drugs are found is insufficient to

defeat a charge of constructive

App. 13

possession. People v. Gallagher, 193

Ill. App. 3d at 569. See also People v.

Romero, 189 Ill. App. 3d at 755.

Defendant also points out that there

was no evidence regarding the last time

he was in the apartment, relying upon

People v. Wolski (1975), 27 Ill. App. 3d

526, 327 N.E.2d 308. However, Wolski is

distinguishable from the case at bar.

Wolski testified that although he shared

the apartment with his brother, he had

not been there for three days before the

search. Moreover, there was no

corroborating evidence linking Wolski to

the marijuana other than the fact that he

shared the apartment. There was no such

evidence in this case. Here, the

evidence showed defendant's possession

and knowledge of the cocaine despite

App. 14

defendant's claim to the contrary. In

open view on the counter next to the

location where the cocaine was found were

bags, a Scale, and Mannitol, which we

will generally refer to as drug

paraphernalia. The bags were similar to

those which contained the cocaine.

Resting on top of this drug paraphernalia

was defendant's prescription bottle.

This evidence was sufficient to link

defendant to the cocaine under the

refrigerator and corroborated the

inference of knowledge and possession

based upon his control of the premises,

The Wolski court did not reject People

v. Nettles, 23 Ill. 2d at 306, as

defendant contends. It merely found that

there were other facts and circumstances

which gave rise to a reasonable doubt of

App. 15

defendant's guilt as provided in

Nettles. (See People v. Hester (1980),

87 Ill. App. 3d 50, 409 N.E.2d 106.) And

contrary to defendant's argument, Hester

did not adopt Wolski, but rather found

that Wolski had other facts and

circumstances which were not present in

Hester that gave rise to a reasonable

doubt of guilt under People v. Nettles.

The Hester court expressly held that

Wolski did not alter Nettles. (People v.

Hester, 87 Ill. App. 3d at 54.)

Additionally, the Wolski court found that

the Lack of corroborating evidence

linking defendant to the marijuana, as

well as the access by others and Wolski's

absence raised a reasonable doubt of

guilt and not merely Wolski's absence

from the apartment and the open access,

App. 16

Defendants have been found to be in

possession of drugs discovered in abodes

in which they lived only part time.

(People v. Birge.) MThe fact that the

State in this case did not establish

defendant's last presence in the

apartment does not raise a reasonable

doubt of guilt in view of the ample

evidence of defendant's control of the

apartment and the corroborating evidence.

Ancther point raised by defendant is

the fact that he was not present when the

apartment was searched, but Phillips and

a woman were. AS already stated mere

access by others does not defeat a charge

of constructive possession. (People v.

Gallagher.) In People v. Birge, 137 Ill.

App. 3d at 790-91, defendant was not

present in the house at the time the

App. i7

cannabis was found, and there was

conflicting evidence that he may have

lived at the address only periodically.

However, the evidence showed that the

home was defendant's permanent address

_ and that his personal property was found

in the house. The appellate court

affirmed the conviction, holding that the

evidence was sufficient to establish

constructive possession. Although

defendant herein attempts to distinguish

Birge by additional factors cited by the

Birge court in support of Birge's

conviction that are not present at bar,

we note that there was additional

evidence, here, to support defendant's

conviction as well. The drug

paraphernalia was in open view, and

App. 18

defendant's prescription bottle was with

the paraphernalia.

Defendant also argues that the cocaine

was hidden in insulation under the

refrigerator so that it was not in open

view nor in a location likely to be

seen. The cocaine and drug paraphernalia

were found in the kitchen, a common area

of the premises where defendant resided

and exerted control. (People v. Valen

(1989), 183 Ill. App. 3d 571, 578, 539

N.E.2d 261.) The drug paraphernalia was

in open view in the kitchen where

defendant could have or should have been

aware of its presence and existence and

was further support of defendant's

knowledge and control. (See People v.

Scott (1987), 152 Ill. App. 3d 868, 872,

505 N.E.2d 42.) Moreover, defendant's

App. 19

prescription bottle was with the plastic

bags, scale, and Mannitol, adding more

Support of his knowledge and control of

the cocaine. Although the cocaine was

"hidden" in insulation under the

refrigerator, the trier of fact could

easily have concluded that it was

defendant who hid the bag. People v.

Trask.

People v. Binns (1975), 27 Ill. App.

3d 978, 327 N.E.2d 369, relied upon by

defendant to show lack of knowledge, is

also distinguishable. In Binns,

envelopes containing marijuana were in

open view of defendant but there was no

evidence that they had been opened. The

court found insufficient proof of

knowledge because the envelopes were not

defendant's; there was nothing to

sill

App. 20

indicate she knew those types of

envelopes were used to transport drugs,

and most importantly her claim of lack of

knowledge was corroborated by a witness

who testified that he planted the

marijuana for revenge. There is no

y, evidence herein that the cocaine was

’ planted nor any explanation regarding

defendant's prescription bottle and drug

paraphernalia discovered in the

kitchen. See People v. Carrasquilla

(1988), 167 Ill. App. 3d 1069, 1079, 522

N.&.2d 139.

Defendant asserts that the supreme

court in People v. Housby (1981), 84 Ill.

2d 415, 420 N.E.2d 151, overruled any

"dicta" in prior Illinois cases that

permitted an inference of constructive

possession from defendant's mere tenancy

App. 21

in the apartment. A similar claim was

rejected in People v. Romero, 189 Ill.

App. 3d at 755. Defendant is apparently

challenging the inference of knowledge

and possession which may be drawn from

defendant's control of the premises which

was put forth in People v. Nettles. This

inference, which has been applied in

numerous cases over the years, can hardly

be described as dicta.

Under Housby, the permissive inference

that the exclusive and unexplained

possession of recently stolen property,

standing alone and without corroboration

of guilt, was sufficient to convict for

burglary was found to be no longer

applicable under due process concerns.

(People v. Housby, 84 Ill. 2d at 423.)

The Illinois Supreme Court did state,

App. 22

however, that the inference did not

infringe upon due process rights if three

factors were met. (People v. Housby at

424.) These factors are (1) there must

be a rational connection between the

inferred fact and the proven fact; (2)

the inferred fact more likely than not

flows from the proven fact; and (3) the

inference is supported by corroborating

evidence. (People v. Bormet (1986), 142

Ill. App. 3d 422, 491 N.E.2d 1281; see

People v. Housby, 84 Ill. 24 at 424.)

The same evidence will apparently satisfy

all three prongs. People v. Mallette

(1985), 131 111. App. 3d 67, 71, 475

N.E.2d 237.

The permissive inference of knowledge

and possession of drugs that may be drawn

from a defendant's control of the

App. 23

premises was based upon the nature of the

commodity and the manner in which its

illegal traffic was conducted. (People

v. Nettles.) Defendant argues in his

reply brief that the reasoning of Nettles

is archaic in 1990, because of the more

common use of illegal drugs so that their

presence in an apartment is not unique.

The full context and meaning of the

Nettles discussion was the fact that

narcotics were illegal; they are valuable

to trose who possessed them because of

the price they commanded; and they

Subjected a person to severe criminal

consequences. While use of illegal

controlled substances may be more

widespread today than in 1961, the three

facts cited by the Nettles court are

Still very much alive today.

App. 24

Assuming, arguendo, that Housby has

affected the use of the permissible

inference found in Nettles, the three

factors applied in Housby are present in

the case at bar. The apartment was shown

to be under the control of defendant by

the evidence. The cocaine was hidden in

a common area of the apartment. Similar

material used to package the cocaine was

in open view near the cocaine's location,

as well as a scale and Mannitol.

Defendant's prescription bottle was with

these items. (See People v. Romero, 189

Ill. App. 3d at 755.) These facts were

sufficient to establish a rational

connection between defendant's control of

the premises and his possession and

knowledge of the cocaine. Defendant's

App. 25

knowledge and possession more likely than

not flowed from his control of the

premises and the location of the cocaine,

drug paraphernalia and prescription

bottle. The presence of defendant's

prescription bottle among the items on

the counter corroborated defendant's

guilt. Therefore, the inference of

knowledge and possession of the cocaine

based on defendant's control of the

premises did not deny defendant due

process. (People v. Housby, 84 Ill. 2d

at 431.) The evidence proved his guilt

beyond a reasonable doubt.

The judgment of the circuit court is

affirmed. Pursuant to the State's

request under People v. Nicholls (1978),

71 Ill. 2d 166, 374 N.E.2d 194, defendant

is assessed $50 in costs for this appeal.

App. 26

Affirmed.

HARTMAN, J., with BILANDIC and

SCARIANO, J.J., concurring.

APPENDIX B

App. 27

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

PEOPLE OF THE STATE OF

ILLINOIS

Plaintiff-Appellee,

Vv. No. 89-3496

NIGEL GORDON,

)

Defendant-Appellant. )

ORDER

IT IS HEREBY ORDERED that Defendant-

Appellant's petition for rehearing is

denied.

JUSTICE ALLEN HARTMAN

JUSTICE MICHAEL BILANDIC

JUSTICE ANTHONY SCARIANO

DATED: November 8, 1990

APPENDIX C

App. 28

71245

ILLINOIS SUPREME COURT

JULEANNE HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

February 6, 1991

Mr. Frederick F. Cohn

Attorney at Law

205 W. Wacker Dr., S#1515

Chicago, IL 60606

No. 71245 - People State of Illinois,

respondent, v. Nigel Gordon,

petitioner. Leave to appeal,

Appellate Court, First

District.

The Supreme Court today DENIED the

petition for leave to appeal in the above

entitled cause,

Bilandic, J., took no part.

The mandate of this Court will issue

to the Appellate Court on February 28,

1991.

APPENDIX D

App. 29

Mr. Stoioff:

Q What did you do next?

A At that time I had gone around to

the rear of the location. Other officers

went up to the front.

Q What was the next thing that

happened?

A At that time entry was made by the

officers through the front of the

apartment. We were later let in. I

entered into the apartment.

Q Once inside the apartment, what

happened?

A Once inside the apartment, two

individuals had been secured. An

individual by the name of Phillips and a

Female individual. Then a search of the

apartment was conducted.

Q What if anything was found?

~ wisest

App. 30

A During the search of the apartment

found underneath the ice box hidden in

some insulation there was a clear plastic

baggie, inside this baggie there were 8

balls of tin foil, inside each one of

these tin foil balls there was packets

that contained a white powder; as much as

7 packets as I recall there was 1 in each

of these tin foil packets, and as little 7

as 3 or 4 in some of the others. There

was a total of 38 individually wrapped

clear packets.

Mr. Stoioff: May the record reflect

that I am showing counsel what I have

previously marked as People's One and Two

for identification?

Mr. Ross: If the court please the

defense will stipulate to the contraband

that was recovered.

App. 3l

Mr. Stoioff: Thank you, Counsel. I

prefer not to Stipulate as to this.

The Court: All right.

Mr. Stoioff:

Q Asking leave to approach and show

him what has been marked as People's One

and People's Two so he can tell the court

what that is?

The Court: Fine.

The Witness: These are the 8 tin foil

wrappings inside each there were more

than one of these.”

Mr. Stoioff:

Q What is contained in People's Two?

A Yes, in People's Two there are 38

separately wrapped clear packets each

containing a white powder.

Q So the balls of tin foil in

People's One were used to be wrapped

App. 32

around that which is contained in

People's Two?

A Right.

Q They have since been separated?

A Yes. We conducted field testing so

we can inventory we Opened each one and

after you open up tin foil the tin foil

kind of rips.

Q Other than that, One and Two are in

the same condition as they were when you

recovered it substantially in the same

condition as when you recovered it?

A Yes.

Q Did you find anything other than

what was under the refrigerator?

A Yes, I was present when Detective

Tomscyk found some other items in the

kitchen.

Q Where were these other items?

App. 33

A They were atop a kitchen counter in

the kitchen.

Mr. Stoioff: Will the record reflect

that I'm showing counsel what I have

marked as People's Three through Six?

Mr. Ross: Is there anything in here?

Mr. Stoioff: There is baggies and cut

baggies.

Actually, Judge, I should indicate

People's Five will be People's Group

Five, there were items contained therein.

The Court: All right.

Mr. Stoioff:

Q Officer, what I have marked as

People's Exhibit Three, Four, Group Five,

and Six, do you recognize those?

A Yes.

Q How do you recognize them?

App. 34

A This is what I also observed atop

of the counter after it was pointed out

by Detective Tomscyk.

Q What is People's Three?

A People's Three is a prescription

bottle, penicillin pills that are

prescribed to a person by the name of

Nigel Gordon.

Q What is People's Four?

A People's Four is a bottle of

Superior Mannitol (phonetic).

Q What is People's Group Five outside

and within?

A People's Five is a box of Baggies,

inside of which is a roll of »aggies and

several cut corners of these haggies

there are some that are different sizes

than the others.

Q How about Six?

App. 35

A Six is a portable hand scale that

you carry around.

Q You said you have been a police

officer for 18 years?

(Tr. 61, 62, 63, 64)

Mr. Ross: I renew my objection to

that statement.

Mr. Stoioff: I don't know how that's

incriminating.

Mr. Ross: He is still getting in

through the back door, Judge.

The Witness: I can quote the

Statement, it's on the report.

The Court: It's not necessary.

Wait until I make my ruling.

The objection is sustained.

Mr. RosSS: Thank you, Judge.

Mr. Stoioff:

Q Okay, was the search ultimately

conducted?

A Yes.

Q What if anything was found?

App. 37

A Cocaine was found in 38

individually wrapped packets at the

bottom of the refrigerator and

immediately adjacent to the refrigerator

was a counter in the kitchen that

contained items of packaging material, a

scale, a pill vile that had the name of

Nigel Gordon on it, a box of baggies and

various cut pieces of plastic that were

identical to those that were contained in

the cocaine.

Mr. Stoioff: Counsel, would you

Stipulate that

(Tre. 82)

APPENDIX E

App. 38

STATEMENT OF FACTS

Defendant, Nigel Gordon, was charged

by indictment with the offenses of

possession of a controlled substance with

intent to deliver and possession of a

controlled substance. (R. C13-Cl15)

Defendant waived his right to a jury

trial and was found guilty on both counts

by the Honorable Marcia Orr. (R. C16-17,

C25) The trial court merged the

possession of controlled Substance count

into the possession of a controlled

Substance with intent to deliver ccunt

and entered judgment on the charge of

possession of a controlled substance with

intent to deliver. (R. 66) Defendant

was sentenced to four years in the

Illinois Department of Corrections. (R.

App. 39

171) Defendant now appeals his

conviction.

Detective John Howard of the Evanston

Police Department was the first witness

to testify, on behalf of the People, at

defendant's trial. Detective Howard

testified that on December 8, 1987, he,

his partner Officer Tomscyk and nine or

ten Chicago Police Officers executed a

search warrant for the second floor

apartment of a building located at 7621

North Greenview, Chicago, Cook County,

Illinois. (R. 58) The officers executed

the search warrant at approximately 8:45

p.m. (R. 58)

Detective Howard testified that he

entered defendant's building through the

front door. (R. 59) Detective Howard

stated that there was a hallway just

App. 40

inside of the front door of defendant's

building. (R. 59) The hallway contained

the mailboxes for the residents of the

apartment building. (R. 59-60) The

mailbox for the second floor apartment

was asSigned to N. Gordon. (R. 60) The

name on the second floor apartment's

mailbox corresponded with the name on the

search warrant. (R. 60)

After exiting the hallway area,

Detective Howard went to the rear of the

second floor apartment. (R. 61) Shortly

thereafter, Detective Howard was let in

the rear door of the second floor

apartment by police officers who

previously entered the apartment through

the front door. (R. 61)

Once inside of the apartment,

Detective Howard observed that a male and

App. 41

female had already been detained. (R.

61) The male's last name was Phillips.

(R. 61) At this point the officers

conducted a search of the apartment. (R.

61) A plastic bag containing eight tin

foil balls, all of which contained

separate packets containing white powder,

was found underneath the refrigerator

located in the kitchen of the

apartment. (R. 61, 76-77) The officers

also found several other items on a

counter top in the kitchen. (R. 63)

One of these items was a prescription

bottle in the name of Nigel Gordon. (R.

64) The bottle was dated August 24,

1983. (R. 74) Another item found on the

kitchen counter top was a bottle of

Superior Mannitol. (R. 64) Superior

Mannitol is commonly used as a cutting

App. 42

agent for diluting cocaine. (R. 65) A

roll of plastic baggies was aiso found on

the kitchen counter top. (R. 64) Some

of the baggies had their corners cut

off. (R. 64) The cut-off corners of

plastic baggies are frequently used to

package cocaine. (R. 66) In fact, the

white nowder found under the refrigerator

was packaged in cut off corners of

plastic baggies similar to the ones found

on the counter top. (R. 66) The last

item found on the kitchen counter was a

portable hand scale. (R. 64) The type

of hand scale that was recovered is

frequently used to weigh small amounts of

narcotics. (R. 66)

Detective Howard further testified

that the above mentioned items and the

white powder were inventoried. (R. 69)

App. 43

Furthermore, Detective Howard stated that

defendant was not present during the

search of the apartment. (R. 72-75)

Defendant was arrested when he

Surrendered to the Evanston Police

Department on March 1, 1987. (R. 72, 75)

The next government witness was

Officer Gregory Tomscyk of the Evanston

Police Department. (R. 78) Officer

Tomscyk testified that he along with

other police officers executed a search

warrant on December 8, 1987. (R. 79)

The search was executed in the second

floor apartment of a building located at

7621 North Greenview, Chicago, Cook

County, Illinois. (R. 79) Prior to

executing the search warrant Officer

Tomscyk observed a mailbox, assigned to

the second floor apartment, in the

App. 44

hallway of the building. (R. 79) The

mailbox had a name plate which indicated

that the mailbox was assigned to N.

Gordon and B. Phillips. (R. 83)

After passing through the hallway,

Officer Tomscyk went to the front door of

the second floor apartment. (R. 80)

Officer Tomscyk knocked on the door and

announced his office. (R. 80) After

forcefully gaining entrance into the

apartment, Officer Tomscyk handed Baldvin

Phillips a copy of the search warrant.

(R. 80) At this point, Officer Tomscyk

began searching the apartment. (R. 82)

Officer Tomscyk testified that he

found a quantity of cocaine under the

refrigerator in the kitchen. (R. 82)

Moreover, he found plastic bags identical

to those used to package the cocaine that

App. 45

he found under the refrigerator, a scale

and a pill bottle with the name Nigel

Gordon on it on a counter next to the

refrigerator. (R. 82) Officer Tomscyk

never saw defendant in the second floor

apartment where the narcotics were

recovered. (R. 84-85)

At this point, the People proceeded by

Stipulation. (R. 85) It was stipulated

that if Elizabeth Riceso were called to

testify she would qualify as an expert

and testify that the white powder,

recovered from the second floor apartment

of a building located at 7621 North

Greenview, tested positive for the

controlled substance cocaine in the

amount of 8.8 grams. (R. 86) It was

also stipulated that the chain of custody

was at all times proper, in all of the

App. 46

People's exhibits. (R. 86) The People

then moved to have defendant's bond slip,

contained in the court's file, moved into

evidence. (R. 87) The court allowed the

bond slip to be admitted into evidence.

(R. 87)

Defendant's bond slip was issued on

March 2, 1988. (R. C7) Defendant signed

the bond slip in the name of Nigel

Gordon. (R. C7) Furthermore, underneath

his signature defendant listed his

address as 7621 North Greenview,

apartment number 2, Chicago, Illinois.

(R. C7)

The last witness to testify, on behalf

of the People, at defendant's trial was

Betty Coleman. (R. 104) Ms. Coleman

testified that she is employed by Gar

Properties and has been so employed since

App. 47

1981. (R. 104) Ms. Coleman is an agent-

manager for Gar properties. (R. 105)

Gar properties owns the apartment

building located at 7621 North

Greenview. (R. 105) Ms. Coleman stated

that on June 2, 1987, she showed

apartment number 2, at the 7621 North

Greenview building, to defendant and

Balvin Phillips. (R. 106) Moreover,

defendant and Phillips signed a lease for

this apartment. (R. 106-107) Ms.

Coleman identified defendant as the man

who entered a lease for apartment number

2 located at 7621 North Greenview. (R.

107) Defendant signed the lease in Ms,

Coleman's presence, (R. 108) Moreover,

Ms. Coleman observed defendant move into

the apartment a few days after he signed

the lease. (R. 110) Ms. Coleman saw

App. 48

defendant in the apartment on several

occasion and he was still leasing the

apartment on December 8, 1987. (R. 110-

112) The rent for defendant's apartment

was uSually paid the by money order. (R.

112) Defendant's name was often on the

money Orders. (R.1)2) After Ms,

Coleman finished testifying, the People

rested its case in chief. .

After the People rested defendant

moved for a directed finding. (R. 122)

The trial court denied defendant's

motion. (R. 126) Defendant did not

present any evidence. (R. 128) After

closing arguments the trial court found

defendant guilty on both counts. (R.

146) At defendant's sentencing hearing

the People presented, in aggravation,

evidence of a prior conviction for theft

a |

App. 49

from a person, (R. C37, C4l, 166) In

mitigation, the defense presented

argument that defendant turned himself in

after learning about an outstanding

warrant and that he was young when he

acquired his first conviction. (R. 169-

170) The trial court sentenced defendant

to four years in the Illinois Department

of Corrections. (R. 171) Defendant now

appeals his conviction.

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