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FOURTH DIVISION
November 20, 2003

No. 1-01-4261

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant, Jagoda Besz, was convicted of possession of acontrolled substance and sentenced to 18 months' probation. She timely appeals from thejudgment of the court below, specifically challenging the sufficiency of the evidence in this case inseveral respects. First, defendant argues that the State failed to prove beyond a reasonable doubtthe existence of an adequate chain of custody between the substance recovered at the apartmentand that tested by the laboratory, alleging, as well, that the physical descriptions of the substancewere discrepant. Defendant further argues that the State failed to prove beyond a reasonabledoubt an adequate foundation for the admission of the results of the test identifying the substanceas cocaine or the testimony of the person who performed the test. Finally, defendant argues thatthe State failed to prove beyond a reasonable doubt that she had constructive possession of thesubstance.

The following evidence was adduced at the bench trial held on November 7, 2001. TheState first called Officer Mieszala, who testified that, at approximately 2 a.m. on February 15,2001, he and Officer Paoletti responded to a drug overdose call at 2906 74^th Court in ElmwoodPark. The officers were met at the door by codefendant Bart Szalaj, who told the officers that hisgirlfriend was "freaking out on drugs." Szalaj led them to the basement, where defendant wassitting, semiconscious, on a bed. The dimensions of the "cramped," one-room apartment wereeither "ten by ten" or "twelve by twelve." Defendant appeared to Mieszala to be under theinfluence of "mind-altering drugs" and was not responsive to the officers' questioning. Theparamedics arrived two minutes later and treated defendant.

Mieszala further testified that he observed Paoletti find a plate with white powder residueon it, along with a straight razor, on the ground. Paoletti then turned to look at the televisionstand and produced a clear plastic bag containing a white powder substance. Paoletti retained thebag. When presented with People's exhibit B, Mieszala identified it as the "clear plastic bagcontaining the white powder substance that Officer Paoletti found in the TV stand." On cross-examination, Mieszala testified that there were other apartment units in the basement of thebuilding and that he did not find any leases or utility bills in the apartment with defendant's nameon them. Mieszala also stated that he did not see defendant physically possess the substance foundat the apartment.

The State next called Officer Juntunen, who testified that he also responded to theoverdose call. He observed Paoletti recover the plate and razor blade and a plastic bag, all ofwhich Paoletti then handed to him. He did not see from where Paoletti recovered the plastic bag. When presented with People's exhibits C and D, Paoletti identified them as the white substance inthe plastic bag and the plate, respectively. On cross-examination, Juntunen testified that he neversaw defendant in possession of any cocaine or marijuana.

The State then called Sergeant Fagiano, who testified that he was called to the ElmwoodPark police station on the night of the incident and spoke to defendant at approximately 5:30 a.m. Defendant told him that a friend brought over the cocaine that night, they played video games, andeventually they did 8 to10 lines of cocaine together off a kitchen plate. Defendant then passed out,remembering only that the paramedics had helped her. She stated that they placed the bagcontaining the cocaine underneath the television stand. The friend who brought the cocaine leftthe apartment at 1:30 a.m., leaving the cocaine there for defendant and Szalaj to hold.

The parties entered the following stipulation, in relevant part: "[I]f called to testify theState would call Bradley Fleming. He would testify that items were submitted to the Illinois StatePolice Forensic Science Division under laboratory case number W1001038; that the itemssubmitted was [sic] 69.2 grams of a chunky substance in one baggie; that the findings werecocaine." At that point, exhibits A, B, C, and D were admitted into evidence without objection bydefendant.

Throughout trial, the defense focused on the possession element of the crime. Defensecounsel argued that defendant did not have control over the premises where the cocaine was foundand, thus, she did not have constructive possession of it. In developing this argument, defensecounsel acknowledged that the substance at issue was cocaine, but claimed that defendant only hadpossession of the 8 to10 lines that she ingested, rather than the "large chunk of cocaine" found inthe apartment on the television stand and entered as an exhibit at trial. Defendant moved for adirected finding on this basis, which the court denied.

At the conclusion of the trial, defendant was convicted of possession of cocaine in anamount between 15 and 100 grams, pursuant to section 402(a) of the Illinois ControlledSubstances Act (720 ILCS 570/402(a) (West 2000)). Defendant filed a motion for new trial,reiterating the argument regarding constructive possession. Defendant argues on appeal that theevidence was insufficient to support her conviction. We disagree and affirm her conviction for thereasons that follow.

The elements required to establish defendant's guilt of the offense of possession of acontrolled substance are: (1) the identity of the substance at issue, i.e., that it is a controlledsubstance in the proper amount; and (2) that defendant knowingly possessed that substance. 720ILCS 570/402 (West 2000); see also People v. Hagberg, 192 Ill. 2d 29, 34 (2000). When adefendant challenges the sufficiency of the evidence, it is our task to determine whether, afterviewing the evidence in the light most favorable to the prosecution, any rational trier of fact couldhave found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106Ill. 2d 237, 261 (1985); Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781(1979). Defendant argues that the State's evidence in this case was insufficient to prove eitherelement beyond a reasonable doubt and, accordingly, asks that this court reverse her conviction.

We begin by noting that there are two components to defendant's argument regarding thefirst element of the offense - the identity of the substance at issue. First, defendant claims that theState failed to establish an adequate foundation for the admission of the results of the testidentifying the substance as cocaine in the proper amount because neither the tester's qualificationsnor the "evidentiary basis" for his opinion was ever established. Second, she claims that the Statefailed to establish the existence of an adequate chain of custody between the substance recoveredat the apartment and that tested by the laboratory, specifically asserting that the physicaldescriptions of the items were at variance with one another. Defendant claims that, as a result ofthese alleged deficiencies, the State failed to prove beyond a reasonable doubt the element of theidentity of the substance. Thus, it is our task in this case to review the record, in the light mostfavorable to the prosecution, for evidence supporting the court's finding that the substancerecovered from the apartment was indeed cocaine in the amount of 15 to 100 grams. For thereasons that follow, we find that the evidence in this case was sufficient to convince the court,beyond a reasonable doubt, of this fact.

We first address defendant's argument regarding the admission of the stipulated experttestimony, as our determination of that issue serves as a predicate for our discussion of the "chainof custody" component of defendant's argument. Defendant claims that the stipulated testimonywas admitted without "the necessary proof," citing People v. Raney, 324 Ill. App. 3d 703 (2001).Specifically, defendant claims that the stipulation in this case was entered without the State having offered evidence: (a) identifying what tests were actually performed on the subject substance; (b)indicating that the tests actually performed were of a type generally accepted and relied upon inthe field; (c) showing that the equipment used to perform the test was functioning properly at thetime the tests were performed; (d) explaining why the opining expert believed the results of thetests were accurate; or (e) identifying the tester's qualifications.

In Raney, the court found that the State failed to establish the proper foundation for theadmission of the results from a gas chromatography mass spectrometer (GCMS) machine that wasused to test the suspect substance in a drug possession case. The Raney court found that therewas no proof as to the method used to record the data provided by the GCMS machine; whetherthe machine was functioning properly at the time of the test; how the machine was calibrated; orwhy the expert knew the results were accurate. Raney, 324 Ill. App. 3d at 710. As a result, thecourt reversed the defendant's conviction. Raney, 324 Ill. App. 3d at 711.

We find it significant, however, that the evidence contested in Raney was not entered bystipulation but, rather, by live testimony of the forensic expert who ran the test. In addition, thedefendant raised the issue at trial by contesting the expert's lack of qualifications, moving for adirected finding on the basis that an inadequate foundation had been laid for the expert's testimony,and also reiterating the issues during closing argument. Raney, 324 Ill. App. 3d at 705. Thus, thefacts in Raney are significantly distinguishable from those before us.

In this case, defendant not only failed to raise any argument regarding the admission of theexpert testimony either at trial or in her posttrial motion, but she also took part in its offering intoevidence, by agreeing to enter it through a stipulation. Accordingly, we find that defendant haswaived this issue. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a specific objection attrial and raising the issue in a posttrial motion are required to preserve an issue for review).

Defendant attempts to get around the wavier rule by characterizing the challenge as anattack on the sufficiency of the evidence, rather than its admissibility. See Enoch, 122 Ill. 2d at190 (claim as to the sufficiency of the evidence is not subject to forfeiture). This court, however,has previously rejected this very argument in People v. DeLuna, 334 Ill. App. 3d 1, 20 (2002).

In DeLuna, the court explained that an attack regarding the proper foundation for experttestimony bears on the admissibility of the evidence rather than the sufficiency. DeLuna, 334 Ill.App. 3d at 20. The court explained:

"Arguably, sufficiency involves absence of proof of a basic element of the crime. Defendant here is not challenging the lack of proof as to the existence of an elementof the crime, since [the expert] testified to the identity of the controlled substance. The challenge is to the failure to lay a proper foundation for the proof of thatelement. This goes to a determination of its admissibility, rather than sufficiency ofthe evidence presented." (Emphasis added). DeLuna, 334 Ill. App. 3d at 20.

Citing People v. Lopez, 242 Ill. App. 3d 160, 162 (1993), the DeLuna court further noted that exceptions to the waiver rule are made where the allegation of error would not normally beexpected to be included in a posttrial motion. DeLuna, 334 Ill. App. 3d at 19-20. Because foundation errors would normally be expected to be included in a trial objection or posttrialmotion, the court found that the defendant had waived them by his failure to raise them before hisappeal. DeLuna, 334 Ill. App. 3d at 19-20. The court aptly observed that had an objection beentimely made, the State could have cured the errors. DeLuna, 334 Ill. App. 3d at 20.

The DeLuna court relied on People v. Bynum, 257 Ill. App. 3d 502 (1994), in making itsdetermination. In Bynum, also a possession case, the court found that the expert's failure to testifythat the machine used to test the substance at issue was a device generally relied upon by expertsin her particular field and her failure to explain how the machine was calibrated or why she knewits results were accurate would have precluded the admission of her testimony at trial. Bynum,257 Ill. App. 3d at 514. However, because the defendant did not object to the expert's testimonyon the grounds of the foundation at trial but, rather, on the grounds of hearsay only, the courtfound that the defendant had waived the foundation argument. Bynum, 257 Ill. App. 3d at 514. The court explained:

"The rule requiring defendant to make a specific objection is particularly well suitedfor application when a defendant argues on appeal that the State has failed to laythe proper technical foundation for the admission of evidence. This is so because atimely and specific objection allows the State the reasonable opportunity to correctany deficiency in the foundation proof." Bynum, 257 Ill. App. 3d at 514-15.

We find that this rule is even better suited to apply in situations, such as in the instant case, wherethe defendant not only failed to raise an objection during live testimony but actually took part inthe offering of the testimony through stipulation.

The court's analysis in People v. Williams, 200 Ill. App. 3d 503 (1990), is instructive. InWilliams, also a possession case, the court refused to subject to any further scrutiny a stipulationas to a chemist's testimony regarding his analysis of the substance at issue. The court found thatthe result of the parties' agreement to present the chemist's testimony by stipulation, in a brief andsummary fashion, was to remove from the case any issue of the expert's qualifications, the chain ofcustody, or the weight and chemical composition of the suspect materials. Williams, 200 Ill. App.3d at 516. The court reasoned that the State would not have agreed to the stipulated testimony,thereby foregoing the opportunity to place the chemist on the witness stand, where he could havedescribed in detail his qualifications, findings, and tests used, "were not the stipulation intended, inpart, to eliminate the need for defending his testimony against a challenge to its sufficiency." Williams, 200 Ill. App. 3d at 516.

The Williams court further noted that in reliance on the stipulation, defendant's trialcounsel focused on other theories and aspects of the defense - specifically, defendant'sconstructive possession of the drugs. Williams, 200 Ill. App. 3d at 516. The court noted:

"Throughout the course of the trial, no question was raised concerning the evidencepresented by [the expert] or its sufficiency to support any element of the chargedoffenses. Nor did the defense offer any additional testimony or evidence tocontradict [the expert's] statements. In his argument for a directed finding of notguilty at the close of State's evidence, and in his closing argument, defense counselfocused almost entirely on the issue of [the defendant's] constructive possession ofthe drugs. Defendant's written motion for a new trial, while containing theboilerplate language that the prosecution failed to prove his guilt beyond areasonable doubt and to prove every material allegation in the indictment beyond areasonable doubt, addressed with specificity only the constructive possession issue. Outside of [the expert's] stipulated testimony, the weight and composition of thedrugs are nowhere discussed." Williams, 200 Ill. App. 3d at 516-17.

Similarly, the defense counsel in the instant case focused on the issue of the defendant'sconstructive possession of the drugs both at trial and in his motion for new trial. Additionally, theweight and composition of the drugs are not discussed in this case anywhere but the stipulatedtestimony. Thus, we find that defendant in this case, much like the defendant in Williams, intendedto stipulate to the weight and identity of the cocaine in this case in order to develop a defensetheory regarding her possession. See also People v. Miller, 218 Ill. App. 3d 668, 671-72 (1991)(the court found that the stipulated testimony of two chemists offered by the State to prove theweight and identity of seized drugs was not subject to further review by the court because it, too,was the only evidence of record concerning that element of the possession charge, the defensecounsel focused on a different theory at trial, and the issue was not specifically addressed indefendant's motion for new trial).

We draw from the logic in Williams, Miller, and DeLuna in concluding that defendantshould have previously raised any issue regarding foundation, had she not intended for thestipulation to be entered for the purpose of establishing the identity and weight of the drugs. If wewere to allow defendant to object to the admission of the stipulation for the first time on appeal,such would amount to our condonation of a party's attempt to inject error into the record. SeePeople v. Gacy, 103 Ill. 2d 1, 74 (1984) (the court found that to review an issue regarding thefailure to give a jury instruction limiting the use of statements, to which defendant stipulated andon which he relied as part of his defense strategy, would permit the defendant to inject error intohis own case - thus, the issue was waived by defendant's failure to object at trial).

Thus, we hold that where a defendant offers to stipulate to the admission of an expert'stestimony without raising an objection as to whether the proper foundation for the testimony hadbeen laid, then later relies on that testimony as part of his defense, the defendant may not raise theissue for the first time on appeal.

In so holding, we note that different courts have taken a different approach, yet havearrived at the same conclusion as we have in this case. In both People v. Rucker, No. 1-01-3617(August 19, 2003), and People v. Washington, No. 1-02-2919 (September 30, 2003), thedefendants challenged the admission of stipulated expert testimony, arguing that "the State failedto '(1) identify what tests were performed; (2) indicate that any equipment used in performing thetests was functioning properly at the time of the testing; or (3) explain why the chemist knew thathis results were accurate.' " Rucker, slip op. at 22; Washington, slip op. at 15. Both courts foundthat the defendants' challenges to the foundation laid for the expert testimony were indeed claimsattacking the sufficiency of the evidence and, thus, not subject to waiver. Rucker, slip op. at 23;Washington, slip op. at 14. As such, the courts entertained the defendants' arguments, despitetheir failure to raise the issue at trial. The end result was the courts' finding that the evidence wasnevertheless sufficient. Thus, we note that, though we employ a different theory to arrive at ourdecision in this case, the outcome is the same.

The second aspect of defendant's challenge to the sufficiency of the evidence establishingthe identity of the cocaine in this case concerns the "chain of custody" of the substance at issue. Defendant claims, first, that the State failed to establish the identity of the substance as cocainebecause the physical description given of the substance taken from the apartment differed fromthat which was tested and, second, that the State failed to overcome this discrepancy by provingan uninterrupted chain of custody. Again, the State argues that defendant is raising a foundationalargument which was not preserved and asks that we find waiver. Defendant, however, once morecontends that she is challenging the sufficiency of the evidence in this case rather than theadmissibility. Because we find the chain of custody issue raised by defendant is entirely withoutmerit in light of the record in this case, we need not address the parties' arguments regardingwaiver.

The record reveals that in moving for a directed finding on the element of defendant'spossession of the substance at issue, defense counsel stated, "it would be my argument, Judge, thateven in the light most favorable she did not possess, actually or constructively, the exhibit which isbefore you, which was located in the apartment where she was." By this statement, and variousothers acknowledging that the plastic bag found in the apartment contained cocaine, defensecounsel resolved any gaps in the chain of custody that might have been caused by a discrepancy inthe description of the substance.⁽¹⁾

It is clear that defendant took the position at trial that the large chunk of white substancefound on the television stand was the exhibit identified by the officers at trial, and that it wasindeed cocaine. Thus, as defendant conceded this ultimate fact at trial, she is now estopped fromarguing that there was insufficient evidence in support of that fact. See People v. Johnson, 334 Ill.App. 3d 666, 680 (where the defense counsel conceded the ultimate issue of the identity of thecontrolled substance recovered as evidence in the case, the court found that defendant hadforfeited the right to raise a foundation argument on appeal).

Accordingly, we find the evidence in this case was sufficient to establish, beyond areasonable doubt, the element concerning the identity of the substance as cocaine in the properamount. We look next to the evidence supporting the second element of this crime - defendant'spossession of that cocaine.

We begin by noting that it is not necessary for the State to prove actual possession, ifconstructive possession can be inferred. People v. Neylon, 327 Ill. App. 3d 300 (2002). Evidencethat a defendant knew drugs were present and exercised control over them establishes constructivepossession. People v. Jones, 295 Ill. App. 3d 444, 453 (1998). Knowledge may be shown by theevidence of conduct from which it may be inferred that the defendant knew the contraband existedin the place where it was found. People v. Smith, 288 Ill. App. 3d 820, 824 (1997). Thisevidence, establishing constructive possession, is often entirely circumstantial. People v.Minniweather, 301 Ill. App. 3d 574, 580 (1998).

In this case, the State introduced ample circumstantial evidence of defendant's constructivepossession of the cocaine such that a rational trier of fact could have found the essential elementsof the crime beyond a reasonable doubt. Specifically, the record reveals that the defendant wasfound in the apartment, passed out from a drug overdose. Drugs were found on a television standin the same room where she was found. The size of the room was roughly 10 to 12 feet by 10 to12 feet. Defendant admitted to Sergeant Fagiano that she had ingested 8 to 10 lines of cocaine offa kitchen plate, and thereafter the bag that contained the cocaine was put under the televisionstand. She further explained to Fagiano that her friend had brought the cocaine over and had left itfor defendant and Szalaj to hold.

In sum, the evidence showed that defendant had knowledge of the presence of the cocainein the place that it was found and that it was in her immediate and exclusive control, because sheingested it. Because defendant once had physical control of the cocaine with intent to exercisecontrol on her own behalf, and she did not abandon it and no other person obtained possession,the evidence is not so improbable or unsatisfactory as to create a reasonable doubt of her guilt. See People v. Adams, 161 Ill. 2d 333, 345 (1994) ("Constructive possession may exist even wherean individual is no longer in physical control of the drugs, provided that he once had physicalcontrol in his own behalf, and he has not abandoned them and no other person has obtainedpossession").

We note that defendant's argument, that she was a "mere visitor" to the apartment fromwhich the cocaine was seized and, therefore, she had no "control" by which to infer that she hadpossession of the cocaine, has been rejected by the Illinois Supreme Court:

"Proof that a defendant had control over the premises where the drugs were locatedcan help resolve [the issue of possession] because it gives rise to an inference ofknowledge and possession of the drugs [citation], but it is not a prerequisite forconviction. Indeed, not only does a defendant not need to control the premises, hedoes not even need to have actual, personal, present dominion over the drugsthemselves." (Emphasis added.) Adams, 161 Ill. 2d at 345.

In this case, because defendant admitted that she had knowledge of the presence of the cocaine,her control of the apartment was not even relevant. Adams, 161 Ill. 2d at 345.

We find, after reviewing the evidence in the light most favorable to the prosecution, thatthe evidence was sufficient to support a rational trier of fact's finding, beyond a reasonable doubt,that defendant had possession of the cocaine.

Affirmed.

QUINN, P.J., and THEIS, J., concur.

1. Other statements made by defense counsel include the following: "What I'm trying toargue, Judge, is that there was no evidence that she ever possessed physically or actually the 69 -the large chunk of cocaine"; "So what I'm arguing is that, yes, I believe the Court has a basis tofind her guilty of actual possession of eight to ten lines of cocaine off that plate, but I don't believethere was any evidence which would give the Court reason to find, beyond a reasonable doubt,that she actually possessed the large chunk or she constructively possessed the large chunk"; "Thelarge chunk was brought by someone else, that's what you heard. It was left by someone else,that's what you heard. And it was under the TV, apart from where she was on the bed in her semi-conscious state; that she was not the only one in that apartment"; "Did she handle it? Possibly. Did she cut - or did someone cut the cocaine off of that chunk? Probably."