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FOURTH DIVISION
September 30, 2004

No. 1-02-3772

Following a bench trial, defendant Kenneth Garth wasconvicted of criminal drug conspiracy and sentenced to 12 yearsin prison. On appeal, defendant argues (1) that the State failedto prove him guilty beyond a reasonable doubt where it failed toestablish a sufficient chain of custody showing that the itemsdefendant sold to an undercover agent were the same items theforensic chemist determined to be cocaine; (2) that the Statefailed to prove him guilty beyond a reasonable doubt where it didnot show that defendant entered into an agreement to sellcocaine; (3) that the State improperly introduced inadmissiblehearsay testimony; and (4) that the trial court erred inadmitting evidence of a separate narcotics transaction involvingdefendant which was irrelevant and prejudicial. For thefollowing reasons, we affirm. We address the first two issues inthis opinion. We address the third and fourth issues in acontemporaneously issued order pursuant to Supreme Court Rule 23(166 Ill. 2d R. 23).

I. FACTS

At trial, Agent Ray Espinosa testified that he was anassistant special agent of the United States Department ofHousing and Urban Development (HUD), Office of the InspectorGeneral. On March 7, 2001, he led a task force in conducting anundercover narcotics investigation at the Ogden Courts PublicHousing Development, located at 2710 West Ogden Avenue inChicago. About 6 a.m., Agents Espinosa and Ken Popowiczproceeded to that location with a confidential informant namedBernard Watkins in an undercover vehicle. Agent Espinosa andWatkins entered the rear of the building while Agent Popowiczremained in the vehicle. As Agent Espinosa and Watkins walked upthe stairs, they were approached by two individuals who told themto step into the hallway. The men asked, "What's up?" andEspinosa and Watkins told them that they were looking for some"offense," a street term for crack cocaine. Agent Espinosaidentified defendant at trial as one of these two men. The otherman, later identified as Alonzo Zollicofer, patted down AgentEspinosa and Watkins to search for weapons then told them toenter the stairwell. Agent Espinosa and Watkins were wearingRyder Truck uniforms and defendant and Zollicofer asked if theycould get jobs at that company. Agent Espinosa replied that hewould see what he could do and asked for their names. Zollicofertold the agent that his name was "Zo" and defendant respondedthat his name was "Ken" or "K-dog."

Zollicofer then walked about 10 feet down the hallway andyelled at an unidentified individual for cocaine while defendantstood with Agent Espinosa and Watkins. Defendant asked them ifthey wanted to purchase heroin and Agent Espinosa and Watkinsboth replied that they were not interested in heroin, but thatthey wanted to purchase crack cocaine. While waiting in thehallway, Agent Espinosa saw an unidentified woman walk into thestairwell area and ask defendant for "blows," a street term forheroin. Defendant retrieved a clear plastic baggie from hispocket which held small black baggies each containing a whitepowder substance. After the unidentified woman gave defendant$10, he handed her one of the small black baggies and she leftthe building.

Shortly thereafter, another woman, later identified asRhonda Ford, approached defendant, Agent Espinosa and Watkins inthe stairwell area. Defendant told Ford that Agent Espinosa wasinterested in purchasing 10 bags of crack cocaine and Watkinswanted to purchase 5 bags of crack cocaine. Ford replied thatshe only had 10 bags of cocaine left. Agent Espinosa respondedthat he would purchase all 10 bags and split the crack cocainewith Watkins. Defendant stated that would be fine and askedAgent Espinosa for the money. After the agent gave defendant$100, Ford handed him 10 black baggies all containing a"yellowish rock-like substance" and bound in clear plastic tape. Agent Espinosa and Watkins told defendant and Zollicofer thatthey would return on Friday of that week, then left the buildingand drove to a predetermined location for a debriefing with thesurveillance and enforcement teams.

Following the debriefing, Agent Espinosa handed the 10 blackbaggies to Special Agent Falhankel whose duty and responsibilitywas to hand the evidence over to the agent responsible forinventorying the items, which were then marked "Exhibit No. 7." At trial, Agent Espinosa identified "People's Exhibit No. 1" asthe 10 black baggies containing the "yellowish-white powder" andbound in clear plastic tape that he received from Ford on thedate in question.

Agent Damien Salvati testified that he was a special agentwith HUD's Office of the Inspector General and was working withAgent Espinosa during the long-term undercover drug operation atthe Ogden Courts Public Housing Development. After the drugtransaction on March 7, 2001, Agent Espinosa provided AgentSalvati with a description of defendant. Based on thatdescription, Agent Salvati searched the Chicago police department"I-cam" photographs for previous arrests made by police in thearea near 2710 West Ogden and involving individuals with thenickname "K-dog." Agent Salvati printed defendant's photographand a few others and presented them to Agent Espinosa in aphotographic array on March 12, 2001. Agent Espinosa identifieddefendant from the photographic lineup, then initialed and wrotethe date on the back of defendant's photograph. At trial, AgentSalvati identified "People's Exhibit No. 2-A through E" as the"I-cam" photographs from the police department that he presentedto Agent Espinosa in the photographic array.

The parties then stipulated:

"[I]f analyst James DeFrancesco were called totestify, he would be called to testify as an expert inthe field of forensic chemistry and so qualified totestify. He would testify he works for the U.S.Department of Justice Drug Enforcement Administration,and that he works at the north central laboratory as aforensic chemist.

He would testify that on May 4, 2001, he removed Exhibit No. 7 from the crime vault at thatlocation. And after using tests and procedures widelyaccepted in the field of forensic chemistry, it wouldbe his opinion within a reasonable degree of scientificcertainty that Exhibit No. 7 contained cocaine. Also,it would be his opinion that after weighing those itemson a properly calibrated scale, he determined the netweight of the cocaine to be approximately 1.4 gramswith a purity of 84 percent and indicating that theamount of pure drug in Exhibit No. 7 was 1.1 grams. ***

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It is also stipulated that he maintained a properchain of custody over those items at all times and thatthe instruments with which he used to test and examineExhibit No. 7 were in proper working condition at thetime of his tests."

The State then entered People's Exhibit Nos. 1 and 2 intoevidence. The parties further stipulated that defendant wasarrested by police in October 2001. The defense rested withoutpresenting any evidence.

At trial, the defense focused on the identity of theindividual involved in the narcotics transaction. During closingarguments, defense counsel maintained that the evidence wasinsufficient to prove that defendant was present on the date inquestion. Defense counsel argued that defendant was not arrestedon the date in question and no money or contraband was recoveredfrom his person. Counsel further argued that Agent Espinosa'sidentification five days after the incident, which was based onphotographs of individuals with the same nickname as defendant,was insufficient to show that defendant was the individualinvolved in the narcotics transaction.

At the conclusion of the trial, defendant was found guiltyof criminal drug conspiracy and delivery of a controlledsubstance. The circuit court merged the delivery of a controlledsubstance count and defendant was sentenced to 12 years'imprisonment for criminal drug conspiracy. The trial courtsubsequently denied defendant's motion for a new trial, whichalleged, inter alia, that the State failed to prove him guiltybeyond a reasonable doubt. After defendant's motion toreconsider his sentence was denied, defendant then filed thistimely appeal.

II. ANALYSIS

A. Defendant's Claim That the State Failed to Establish a ProperChain of Custody

Defendant first argues that the State failed to establish asufficient chain of custody to demonstrate that the items AgentEspinosa purchased from defendant were the same items tested bythe forensic chemist. Defendant contends that without asufficient chain of custody connecting him to the narcotics, theState failed to prove that the substance delivered to AgentEspinosa was cocaine and thus, defendant was not proved guilty ofcriminal drug conspiracy beyond a reasonable doubt. The Statefirst responds that because the chain of custody of the narcoticswas not an element of criminal drug conspiracy, defendant'sargument must fail.

A person commits criminal drug conspiracy when:

"[W]ith the intent that an offense set forth inSection 401, Section 402, or Section 407 of this Act becommitted, he agrees with another to the commission ofthat offense. No person may be convicted of conspiracyto commit such an offense unless an act in furtheranceof such agreement is alleged and proved to have beencommitted by him or by a coconspirator." 720 ILCS570/405.1(a) (West 2000).

See also People v. Edwards, 337 Ill. App. 3d 912, 922 (2002).

Thus, the State was required to allege and prove that: (1)defendant agreed with another to commit an offense set forth insection 401, 402 or 407 with the intent to commit that offense;and (2) defendant or a coconspirator committed an act infurtherance of this agreement. 720 ILCS 570/405.1(a) (West2000). In this case, the indictment alleged that, with theintent that the offense of delivery of a controlled substance becommitted, defendant conspired with several other people tocommit this offense by engaging in street sales of cocaine andheroin and in furtherance of the conspiracy, defendant committedthe following act:

"On March 7, 2001, at approximately 6:18 a.m., at 2710West Ogden Avenue, Alonzo Zollicofer, Rhonda Ford, andKenneth Garth delivered ten packets containing 1.4gram[s] of cocaine to an undercover officer in exchangefor $100.00 United States currency."

Under the second element of this offense, the State wasrequired to prove that defendant committed an act in furtheranceof the conspiracy as alleged in the indictment, i.e. thatdefendant delivered 1.4 grams of cocaine to an undercoverofficer. In order to prove that defendant committed this act,the State obviously had to prove that what defendant sold to theofficer was, in fact, 1.4 grams of cocaine. In doing so, theState had to establish a sufficient chain of custody to connectthe items that Agent Espinosa purchased from defendant to theitems determined to be cocaine by the forensic chemist.

The State relies on United States v. Russell, 109 F.3d 1503(10th Cir. 1997), to support its contention that proof of thechain of custody is not necessary to support a criminal drugconspiracy conviction. In Russell, it was uncontested that thepolice found 18 grams of cocaine along with drug paraphernaliaand $400 in a codefendant's bedroom. Additionally, an informanttestified that the defendant showed him a one-ounce rock ofcocaine. Russell, 109 F.3d at 1506. At trial, the prosecutionlinked the defendant to the codefendant and the stash of cocaine. The court did not hold that a chain of custody was never requiredin drug conspiracy cases, but instead found that the existence oftwo cocaine stashes and the relationship between the defendantand the codefendant was enough to establish the conspiracy. Russell, 109 F.3d at 1506. In Russell, while the prosecution didnot have to show that the drugs seen in the defendant's hand werethe same drugs found in the bedroom, it did have to prove thatthe substance was a narcotic and that the defendant was connectedto those drugs. Similarly, based on the wording of theindictment in this case, the State was required to prove thatdefendant delivered cocaine to Agent Espinosa as an element ofthe offense of criminal drug conspiracy. We therefore reject theState's argument that proof of the chain of custody was notnecessary to sustain defendant's conviction.

Defendant contends that the State failed to establish aproper chain of custody to show that the items defendant sold toAgent Espinosa were the same items that the forensic chemistdetermined to be cocaine because (1) a discrepancy existed as tothe exhibit numbers used to identify the items; (2) the agentresponsible for inventorying the items never testified regardingthe handling and safekeeping of the evidence; (3) the stipulatedtestimony failed to include a description of the evidence andwhether the forensic chemist received it in a sealed condition;and (4) the stipulated testimony was limited to the time duringwhich the items were in the custody of the forensic scientist. Before the circuit court may admit real evidence at trial,the State must provide an adequate foundation either by way oflive testimony or stipulation that establishes that the itemsought to be admitted is the actual item involved in the allegedoffense and that the item's condition is substantially unchanged. People v. Fox, 337 Ill. App. 3d 477, 481 (2003). If an item isnot readily identifiable or if it is susceptible to alteration bytampering or contamination, the State must establish its chain ofcustody with sufficient completeness to render it improbable thatthe original item has either been exchanged, contaminated, orsubjected to tampering. Fox, 337 Ill. App. 3d at 481.

Unless the defendant produces actual evidence of tampering,substitution, or contamination, the State need only establish aprobability that tampering, substitution, or contamination didnot occur, and any deficiencies go to the weight rather than theadmissibility of the evidence. People v. Herrero, 324 Ill. App.3d 876, 882 (2001).

The purpose of protective measures is to ensure that thesubstance recovered from the defendant was the same as thesubstance tested by the forensic chemist. People v. Ryan, 129Ill. App. 3d 915, 919 (1984). Proof of delivery, presence, andsafekeeping demonstrates that reasonable measures were taken toprotect the evidence. Fox, 337 Ill. App. 3d at 482. The Stateis not required to exclude every possibility of tampering, nordoes it need to present every individual involved in the chain ofcustody. Fox, 337 Ill. App. 3d at 482.

In this case, we find that the State proved the chain ofcustody with sufficient completeness to establish that the 10black baggies purchased by Agent Espinosa were the same itemsthat tested positive for cocaine. In so concluding, we rejectdefendant's first contention that a discrepancy exists as to theexhibit number attached to the evidence at the time AgentEspinosa purchased the suspected contraband and the exhibitnumber of the evidence that he identified at trial. AgentEspinosa testified that after he gave defendant $100, Ford handedhim 10 black baggies all containing a "yellowish rock-likesubstance" and bound in clear plastic tape. Agent Espinosa thengave these items to Agent Falhankel to be inventoried, and theywere marked "Exhibit No. 7." The parties further stipulated thatthe forensic chemist removed "Exhibit No. 7" from the crime vaultat his laboratory and determined that "Exhibit No. 7" containedcocaine. At trial, the State introduced "People's Exhibit No.1," which Agent Espinosa identified as the 10 black baggiescontaining the "yellowish-white powder" and bound in clearplastic tape that he received from Ford on the date in question. The testimony at trial is as follows:

"Q. Once you related that to Mr. Garth and Miss Ford,what occurred?

A. Mr. Garth said that was fine. He asked for the money, which I then tendered $100 USC to Mr. Garth; and then turned to Miss Ford, and she tendered ten black ziplock baggies all containing a yellowish rock-like substance and they were bound in like a clear plastic tape, masking tape type thing.

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By Mr. Hughes:

Q. Showing you People's Exhibit No. 1 for identification purposes and ask you if you recognize that exhibit? And if so, would you please tell the court what that is?

A. Yes. These are the ten ziplock baggies again bound in the clear plastic tape that I purchased from the defendant.

Q. And do the baggies have any colored tintto them?

A. Yes, it is a yellowish-white powder. It looks like it has been smashed up.

Q. The baggies, do they have any tint?

A. I'm sorry, the baggies are black, yes.

Q. Do these objects appear to be the same objects that you received from Rhonda Ford on March 7,2001 or at approximately 6:15 a.m.?

A. Yes.

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Q. After you conducted a debriefing what did youdo with respect to these ten ziplock black tintedplastic baggies?

A. I handed them over to Special Agent Falhankel,and he basically took custody of the evidence atthat time.

Q. Was it his duty and responsibility to then hand that over to the agent that is responsible forinventorying those items?

A. That is correct.

Q. Are those items marked Exhibit No. 7?

A. Yes."

While Agent Espinosa identified the evidence as being marked"Exhibit No. 7" for inventory purposes and the parties stipulatedthat the chemist tested the evidence identified as "Exhibit No.7," the State admitted the evidence at trial as "People's ExhibitNo. 1" and Agent Espinosa identified "People's Exhibit No. 1" asthe same items he received from Ford that were marked "ExhibitNo. 7." We therefore find that the different exhibit numbersused to identify the evidence do not provide a basis for thiscourt to hold that the chain of custody was insufficient in theinstant case.

We also reject defendant's second and third claimed defectswith respect to the chain of custody and the stipulated evidence,i.e., that the agent responsible for inventorying the itemspurchased by Agent Espinosa never testified and the stipulatedtestimony failed to include a description of the evidence andwhether the forensic chemist received it in a sealed condition. In reaching this conclusion, we have considered several recentcases that are on point with the challenge in the instant case.

In People v. Durgan, 346 Ill. App. 3d 1121 (2004), thedefendant was charged with possession of a controlled substanceand the parties stipulated at trial to the forensic chemist'stestimony. On appeal, the defendant argued that the stipulatedtestimony did not show what tests the chemist performed, whetherthose tests were "commonly used in the area of forensicchemistry," how the chemist recorded her findings, and whetherthe equipment she used to test the substance was functioningproperly, and, therefore, the State failed to present sufficientevidence that the substance recovered from the defendant wascocaine. Durgan, 346 Ill. App. 3d at 1130. In Durgan, theFourth District rejected the defendant's argument, relying onPeople v. Hill, 345 Ill. App. 3d 620 (2003). In Hill, this courtaddressed the defendant's foundational challenge to an expert'stestimony, to which the defendant had stipulated. In Hill, weheld that when a defendant stipulates to an expert's opinion, heforfeits his right to challenge on appeal the foundation for theexpert's opinion. Hill, 345 Ill. App. 3d at 630. In so holding,this court reasoned that a defendant forfeits any issue as to theimpropriety of evidence if he procures, invites or acquiesces inthe admission of that evidence. Hill, 345 Ill. App. 3d at 631. In Hill, this court also stated:

"[S]everal characteristics unique to stipulationsfurther support our holding. First, had defendant madea timely objection at trial and not agreed to theState's stipulation, the trial court could haveaddressed this foundational issue and the State couldhave corrected the deficiency. [Citation.] Bypresenting the chemist's testimony through astipulation, in a brief and summary fashion, the resultwas to remove from the case any issue concerning theexpert's testimony. [Citations.]. Additionally, theState likely would not have agreed to the stipulatedtestimony, thereby foregoing the opportunity to placethe expert on the witness stand and ask him to describein detail the number and type of tests performed on thesubstance, if the stipulation was not intended toeliminate the need for defending his testimony againsta challenge by defendant. [Citation.] Further, weassume that defense counsel, by agreeing to thestipulation, decided to forego the opportunity tocross-examine the expert to focus on other theories andaspects of the defense." Hill, 345 Ill. App. 3d at632.

The Durgan court agreed with the rationale and holding in Hill. The Durgan court further noted:

"[B]y stipulating to a fact--for example, as in thiscase, that the substance tested was cocaine--theparties dispense with the need to further stipulate tothe foundation underlying that fact. In other words,because a stipulation is a substitute for the witness'sactual testimony, all of those matters that the witnesscould have and should have testified about areencompassed by the stipulation." Durgan, 346 Ill. App.3d at 1131-32.

The Durgan court concluded that because the defendant stipulatedthat the substance recovered from him contained 1.8 grams ofcocaine, he could not challenge the foundation for the expert'stestimony on appeal. Durgan, 346 Ill. App. 3d at 1132.

Similarly, in People v. Besz, 345 Ill. App. 3d 50 (2003),the defendant was charged with possession of a controlledsubstance and stipulated to the forensic chemist's testimony. Onappeal, the defendant claimed that the State failed to lay theproper technical foundation for the testimony and that the Statefailed to prove the existence of an adequate chain of custodybetween the substance recovered at the apartment and that whichthe laboratory determined to be cocaine. Besz, 345 Ill. App. 3dat 51. In rejecting defendant's foundational challenge to theexpert's testimony, this court relied on the holding in People v.Bynum, 257 Ill. App. 3d 502, 514 (1994), which required adefendant to make a specific trial objection to the expert'stestimony on the grounds of insufficient foundation in order topreserve the issue for review. In Besz, this court stated:

"We find that this rule is even better suited to applyin situations, such as in the instant case, where thedefendant not only failed to raise an objection duringlive testimony but actually took part in the offeringof the testimony through stipulation." (Emphasis inthe original). Besz, 345 Ill. App. 3d at 55.

In Besz, we further stated:

"If we were to allow defendant to object to theadmission of the stipulation for the first time onappeal, such would amount to our condonation of aparty's attempt to inject error into the record. SeePeople v. Gacy, 103 Ill. 2d 1, 74 (1984)." Besz, 345Ill. App. 3d at 57.

As such, this court stated that:

"[W]here a defendant offers to stipulate to the admission of an expert's testimony without raising anobjection as to whether the proper foundation for thetestimony had been laid, then later relies on that testimony as part of his defense, the defendant may notraise the issue for the first time on appeal." Besz, 345Ill. App. 3d at 57.

In this case, defendant attempts to circumvent the waiverrule by characterizing the challenge as an attack on thesufficiency of the evidence, rather than its admissibility. Thiscourt has previously rejected this precise argument. See Besz,345 Ill. App. 3d at 54-55; People v. DeLuna, 334 Ill. App. 3d 1,20 (2002). More particularly, this division of the appellatecourt has adhered to the holdings of DeLuna and Besz that adefendant's challenge to the foundation for an expert'sstipulated opinion is an issue of admissibility of the evidence,not sufficiency of the evidence, as defendant suggests. Hill,345 Ill. App. 3d at 633. In so finding, we decline to follow theholdings in People v. Rucker, 346 Ill. App. 3d 873 (2003), andPeople v. Washington, 343 Ill. App. 3d 889 (2003), that adefendant's challenge to an expert's stipulated testimony is anattack on the sufficiency of the evidence and, therefore, theissue can be raised for the first time on appeal. Hill, 345 Ill.App. 3d at 633. We find no reason to depart from our decision inHill and conclude that defendant cannot raise this issue for thefirst time on appeal.

Our supreme court has very recently addressed this sameissue in People v. Harvey, 211 Ill. 2d 368, 385-86 (2004),where the court stated:

"This court has acknowledged *** that adefendant's invitation or agreement to the procedurelater challenged on appeal 'goes beyond mere waiver.' People v. Villarreal, 198 Ill. 2d 209, 227 (2001). Indeed, Illinois courts sometimes refer to the issue asone of estoppel. See, e.g., People v. Burage, 23 Ill.2d 280, 283 (1961); People v. Sparks, 314 Ill. App. 3d268, 272 (2000); People v. Satterfield, 195 Ill. App.3d 1087, 1100-01 (1990); People v. Reed, 51 Ill. App.3d 479, 482 (1977). That is, '[u]nder the doctrine ofinvited error, an accused may not request to proceed inone manner and then later contend on appeal that thecourse of action was in error.' People v. Carter, 208Ill. 2d 309, 319 (2003), citing Villarreal, 198 Ill. 2dat 227-28; People v. Segoviano, 189 Ill. 2d 228, 240-41(2000); People v. Lowe, 153 Ill. 2d 195, 199 (1992). To permit a defendant to use the exact ruling or actionprocured in the trial court as a vehicle for reversalon appeal 'would offend all notions of fair play'(Villarreal, 198 Ill. 2d at 227), and 'encouragedefendants to become duplicitous' (Sparks, 314 Ill.App. 3d at 272)).

Illinois courts have applied the invited errordoctrine in numerous cases to bar a defendant fromclaiming error in the admission of improper evidencewhere the admission was procured or invited by thedefendant. E.g., People v. Caffey, 205 Ill. 2d 52, 114(2001); People v. Payne, 98 Ill. 2d 45, 49-50 (1983);People v. Abdullah, 336 Ill. App. 3d 940, 950 (2002);People v. Bridges, 273 Ill. App. 3d 773, 779 (1995)."  Harvey, 211 Ill. 2d at 385-86.

As in Besz and Hill, the instant defendant, through trialcounsel, intended to stipulate to the weight and identity of thecocaine in order to develop a defense theory of identification. Also as in Besz and Hill, the defendant, through appellatecounsel, now contends that this course of action resulted in theimproper admission of evidence. This disingenuous argument isexactly the type that was so recently condemned by our supremecourt in Harvey. Consequently, we reject it.

In Besz, we also rejected the defendant's second argument onappeal as to the adequacy of the chain of custody where the trialrecord was replete with instances of defense counsel indicatingthat the cocaine at issue was indeed in the apartment. In doingso, this court relied on the holding in People v. Johnson, 334Ill. App. 3d 666 (2002). The Johnson court determined that wheredefense counsel conceded the ultimate issue of the identity ofthe controlled substance recovered as evidence in the case,defendant had forfeited the right to raise a foundation argumenton appeal. Johnson, 334 Ill. App. 3d at 680. Similarly, thiscourt found the defendant in Besz was estopped from arguing onappeal that there was insufficient evidence to establish theidentity of the substance at issue as cocaine where defensecounsel conceded this ultimate fact at trial. Besz, 345 Ill.App. 3d at 58.

In this case, Agent Espinosa testified that after he gavedefendant $100, Ford handed him 10 black baggies all containing a"yellowish rock-like substance" and bound in clear plastic tape. Agent Espinosa then gave these items to Agent Falhankel to beinventoried and they were then marked "Exhibit No. 7." Theparties stipulated that not only would the chemist "testify as anexpert in the field of forensic chemistry," but also that he"removed Exhibit No. 7 from the crime vault" and "after usingtests and procedures widely accepted in the field of forensicchemistry, it would be his opinion within a reasonable degree ofscientific certainty that Exhibit No. 7 contained cocaine *** andafter weighing those items on a properly calibrated scale, hedetermined the net weight of the cocaine to be approximately 1.4grams." The parties further stipulated that "he maintained aproper chain of custody over those items at all times" and that"the instruments with which he used to test and examine ExhibitNo. 7 were in proper working condition at the time of his tests."

Based on the strength of these agreed facts, it wasreasonable and fair for the trier of fact to conclude that theitems purchased by Agent Espinosa contained cocaine. The partiesstipulated not only to a proper chain of custody but also to anadequate foundation for the chemist's determination that "ExhibitNo. 7" contained 1.4 grams of cocaine. Also, Agent Espinosa'sidentification of "People's Exhibit No. 1" as being the itemsthat he purchased, and which were marked "Exhibit No. 7," wasconsistent with the items tested by the chemist.

In this case, the weight and composition of the drugs arenot discussed anywhere but in the stipulated testimony. Defensecounsel instead argued that the evidence was insufficient toprove that defendant was present during the narcoticstransaction. We therefore find that defendant intended tostipulate to the weight and identity of the cocaine in this casein order to develop a defense theory regarding the identity ofthe perpetrator. Besz, 345 Ill. App. 3d at 56. By agreeing tothe stipulation regarding the chemist's qualifications, the chainof custody and the weight and chemical composition of the suspectmaterials, the parties effectively removed these issues from thecase. Hill, 345 Ill. App. 3d at 632. Accordingly, defendant haswaived this issue where he agreed to the procedure that he nowseeks to challenge on appeal. Harvey, 211 Ill. 2d at 385-86. We also reject defendant's argument that the parties'stipulation that a proper chain of custody was maintained "at alltimes" should not be interpreted to mean literally "at all times"but rather limited to the time during which the items were in thecustody of the chemist. In support of this argument, defendantpoints out that the language in question was contained within thestipulation as to the chemist's testimony and that he could nottestify that a proper chain of custody was maintained prior tohis receipt of the items. This is not a challenge to thesufficiency of the evidence but rather a challenge to thestipulation. If it had not been the intent of the parties tostipulate to the chain of custody, it would have been in theirbest interests not to agree to the stipulation. In the contextof this case, where no issue was raised as to the identity of thesubstance as cocaine, it is reasonable to conclude that theparties intended to remove this issue from the case. Besz, 345Ill. App. 3d at 56. Under these circumstances, we find theevidence sufficient to permit the trial court to find beyond areasonable doubt that the items purchased by Agent Espinosa werecocaine. Besz, 345 Ill. App. 3d at 59.

B. Defendant's Claim That the State Failed to Prove the Existenceof an Agreement to Engage in the Sale of Cocaine

Defendant next argues that the State failed to prove himguilty of criminal drug conspiracy beyond a reasonable doubtwhere it failed to prove that he entered into an agreement witheither Zollicofer or Ford to sell cocaine to Agent Espinosa.

To establish a prima facie case of conspiracy, the Statemust prove that two or more persons intended to commit a crime,that they engaged in a common plan to accomplish the criminalgoal and that an act or acts were done by one or more of them infurtherance of the conspiracy. People v. Melgoza, 231 Ill. App.3d 510, 521 (1992). Mere knowledge of or acquiescence in anillegal act neither constitutes conspiracy nor suffices to giverise to an inference of conspiracy. People v. Testa, 261 Ill.App. 3d 1025, 1027-28 (1994). Defendant argues that the merefact that he was present and participated in the alleged cocainetransaction is insufficient to prove that he was involved in aconspiracy to sell cocaine.

The existence of an agreement between coconspirators to do acriminal act may be inferred from all of the surrounding factsand circumstances, including the acts and declarations of theaccused. Melgoza, 231 Ill. App. 3d at 521. Because of theclandestine nature of conspiracy, the courts have permitted broadinferences to be drawn from the circumstances, acts and conductof the parties. Melgoza, 231 Ill. App. 3d at 523. In this case,there is no direct evidence of an agreement between defendant andZollicofer or Ford to commit a crime. Consequently, we mustdetermine if there was sufficient circumstantial evidence fromwhich such an agreement could be inferred.

The State's evidence showed that Agent Espinosa communicatedhis wish to purchase cocaine to defendant and Zollicofer. Zollicofer walked down the hallway and yelled for an unidentifiedindividual to bring them cocaine. Defendant remained with AgentEspinosa and informant Watkins in the stairwell area. Shortlythereafter, Ford approached and defendant informed her that AgentEspinosa wanted to purchase 10 bags of crack cocaine and Watkinswanted to purchase 5 bags of crack cocaine. When Ford repliedthat she only had 10 bags of cocaine left, Agent Espinosaresponded that he would purchase all 10 bags and split the crackcocaine with Watkins. Defendant responded that would be fine andasked Agent Espinosa for the money. After the agent gavedefendant $100, Ford handed him the 10 bags of cocaine.

In our view, these collective facts and circumstances aresufficient to support the inference that defendant had enteredinto an agreement to sell the cocaine. After making contact withthe buyers, Agent Espinosa and Watkins, Zollicofer arranged thesale by instructing an individual nearby to bring cocaine whiledefendant completed the deal by taking the money and instructingFord regarding the amount of cocaine to be tendered.

Defendant cites People v. Darnell, 214 Ill. App. 3d 345(1990), and People v. Deatherage, 122 Ill. App. 3d 620 (1984), insupport of his position that the evidence was insufficient toprove him guilty beyond a reasonable doubt. In those cases, thedefendants were found guilty of delivery of a controlledsubstance based on a theory of accountability. The appellatecourt reversed the convictions, finding insufficient evidencethat the defendants aided, abetted or attempted to aid others inthe perpetration of the crimes of delivery. The court found thatthere was no evidence of an agreement to commit the crime orevidence that the defendants knew that the crimes were beingcommitted. The courts concluded that the defendants' merepresence at the scene of the crime was insufficient proof ofguilt and that they could have been innocent bystanders. Incontrast to Darnell and Deatherage, defendant in the instant casewas involved in the transaction itself where he accepted themoney and instructed Ford regarding the amount of cocaine to bepurchased by Agent Espinosa. Unlike in Darnell and Deatherage,the conduct and actions of defendant here circumstantiallyestablish his knowledge of the cocaine and his agreement to sellthat cocaine.

We are also not persuaded by defendant's reliance on Burleyv. Florida, 526 So. 2d 1021 (Fla. App. 1988), and United Statesv. Ramos, 613 F. Supp. 115 (S.D.N.Y. 1985), in support of hisargument that the State failed to prove the existence of aconspiracy. In Burley, the Florida Court of Appeals reversed thedefendant's conviction for conspiracy to deliver cocaine. Theevidence in that case showed that an informant walked up to thedefendant and asked him if he was selling cocaine. The defendantresponded "no" and took him to an individual named Gray. Theinformant handed money to the defendant, who handed it to Gray. Gray then handed cocaine to the defendant, who handed it to theinformant. The court noted that there was no proof of anyprearrangement, prior discussions or plans made in preparationfor the narcotics transaction. The court also determined thatthere was no proof that the defendant and Gray conspired togetherto commit the crime or did anything other than engage in thesingle transaction. Unlike Burley, the defendant's actions inthis case were not limited to merely passing drugs and moneybetween the buyer and seller in a narcotics transaction. Rather,defendant in this case not only agreed to Agent Espinosa'srequest to purchase cocaine, but personally accepted the moneyand informed Ford as to the amount of cocaine the agent sought topurchase.

In Ramos, the federal district court reversed thedefendant's conviction for conspiracy to distribute cocaine. Theevidence in that case showed that the defendant approached anundercover police officer and asked him if he wanted heroin orcocaine. The officer asked for cocaine and walked down thestreet with the defendant. The defendant then approached anunidentified individual and asked him for cocaine, but thatindividual informed him that he had just run out of cocaine andsuggested that he try another address. When the defendant andthe officer walked to that address, the defendant asked a secondunidentified individual for cocaine. That individual asked thedefendant if he had money and the defendant turned to the officerwho handed him $20. The defendant then walked down the streetwith the unidentified individual and handed him the $20. Thedefendant walked back to the officer, handed him one foil packetof cocaine and explained that the seller left to get anotherpacket of cocaine. Shortly thereafter, the unidentifiedindividual returned, placed a packet on a car and directeddefendant to it. The defendant retrieved the packet and handedit to the officer. The Ramos court determined that the defendantwas not proved guilty beyond a reasonable doubt of the charge ofconspiracy to distribute cocaine where the evidence could supporta finding that the defendant was simply a scavenger seeking outwilling purchasers and then seeking out willing sellers in thehope of gaining some financial reward from one or the other. Unlike Ramos, defendant's actions in this case did not suggestthat he was a scavenger. In contrast to Ramos, defendant'sactions circumstantially established that he had an agreement tosell the cocaine where he informed Ford regarding the purchase ofthe cocaine, agreed to the transaction and personally collectedthe money.

In sum, we find that the facts and circumstances of thiscase are sufficient to support the inference that defendantentered into an agreement to sell the cocaine. Thus, we cannotsay that defendant's conviction was based on evidence that was sounreasonable, improbable or unsatisfactory that it created areasonable doubt of defendant's guilt. People v. Evans, 209 Ill.2d 194, 209 (2004).

[Non-publishable material under Supreme Court Rule 23 (166Ill. 2d R. 23 removed here.]

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of thecircuit court of Cook County.

Affirmed.

HARTMAN, J., concurs.

THEIS, J., dissents.

In this case, the majority finds that the chain of custodywas sufficient. I disagree and dissent.

Defendant argues that the State failed to establish a properchain of custody to show that the items defendant sold to AgentEspinosa were the same items that the forensic chemist determinedto be cocaine for four different reasons outlined by the majorityabove. I need address only the first of these arguments. Inthat argument, defendant contends that a discrepancy existed asto the exhibit numbers used to identify the items, rendering thechain of custody insufficient. I agree with the majority thatthis specific issue should be addressed under a sufficiency ofthe evidence analysis, but find that, based on this record, theevidence was insufficient.

When introducing contraband, the State has the burden toestablish a chain of custody of sufficient completeness to renderit improbable that the evidence has been tampered with,exchanged, or contaminated. People v. Harris, No. 1-03-0674(Ill. App. Ct. August 26, 2004). In the absence of actualevidence of tampering, substitution, or contamination, the Statesatisfies its burden by showing that reasonable measures wereused to protect the evidence from the time that it was seized andthat it was improbable that the evidence was altered. Harris,No. 1-03-0674, slip op. at 7. The purpose of these protectivemeasures is to ensure that the substance recovered from thedefendant was the same as the substance tested by the forensicchemist. Fox, 337 Ill. App. 3d at 481-82. However, the State isnot required to exclude all possibilities of tampering nor doesthe State need to call everyone involved in the chain of custodyto testify. Fox, 337 Ill. App. 3d at 482; People v. Irpino, 122Ill. App. 3d 767, 775 (1984). Accordingly, even if there is amissing link in the chain of custody, evidence may be properlyadmitted if there is testimony sufficiently describing thecondition of the evidence when delivered which matches thedescription of the evidence when examined. Harris, No. 1-03-0674, slip op. at 7-8.

I disagree with the majority and would find that the Statefailed to prove the chain of custody with sufficient completenessto establish that the ten black baggies purchased by AgentEspinosa from defendant were the same items that tested positivefor cocaine. Agent Espinosa testified that he purchased fromFord and defendant "ten black ziplock baggies all containing ayellowish rock-like substance" bound with clear plastic tape,which he identified as "People's Exhibit No. 1." He then handedthe bags to Agent Falhankel who was responsible for handing themover to another agent who would inventory those items, which weremarked "Exhibit No. 7."

However, the stipulation provided only that DeFrancescowould testify that he tested Exhibit No. 7 and determined that itcontained 1.4 grams of cocaine. The stipulation never mentionedPeople's Exhibit No. 1. The State later admitted only ExhibitNos. 1 and 2 into evidence. There is no clear evidence in therecord that the items recovered by defendant were referred to asboth People's Exhibit No. 1 and Exhibit No. 7 at trial. Contraryto the majority's statement, Agent Espinosa never identified theevidence as being marked Exhibit No. 7 only for inventorypurposes and did not explain that People's Exhibit No. 1contained the same items he received from Ford that were markedExhibit No. 7. Further, it is mere supposition to conclude, asthe majority does, that the State admitted the evidence recoveredfrom defendant as People's Exhibit No. 1 when the stipulationstated only that Exhibit No. 7 contained cocaine.⁽¹⁾

Moreover, in addition to the contradictory exhibit numbers,there was no matching description of the evidence recovered byAgent Espinosa and the evidence analyzed by the chemist toestablish that the evidence was the same. Neither AgentEspinosa's testimony nor the stipulation reference an inventorynumber given to the evidence recovered and tested. Additionally,neither his testimony nor the stipulation explained the conditionof the evidence. Further, while Agent Espinosa described theevidence he recovered with some detail, the stipulation did notcontain any description of the item tested or even the number ofitems tested. Lastly, the State never admitted Exhibit No. 7into evidence.

Here, there is no testimony sufficiently describing thecondition of the evidence when delivered which matches thedescription of the evidence when examined. Thus, I would findthat the State failed to connect the evidence recovered fromdefendant with the evidence tested by the chemist in this case. By failing to establish a sufficient chain of custody of thecocaine under these facts, the State failed to prove thatdefendant delivered cocaine to an undercover agent. Based onthis fatal flaw in the chain of custody, I would find that theState failed to prove defendant guilty beyond a reasonable doubtof criminal drug conspiracy and reverse his conviction.

For the reasons stated, I respectfully dissent.

1. I also note that the State never acknowledges thiscontradiction in the testimony in its brief and offers noexplanation for this discrepancy.