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SIXTH DIVISION
October 12, 2001

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial, defendant Laree Hendricks was convicted of possession of acontrolled substance with intent to deliver and sentenced to six years in prison. Defendant arguesfor a new trial, claiming she was denied her right to due process and a fair trial by the trial courtwhich allowed the State to present evidence of a statement allegedly made by defendant that was notdisclosed in discovery. Alternatively, if a new trial is not granted, defendant contends that herconviction should be reduced to simple possession because the State failed to prove intent to deliverbeyond a reasonable doubt. We reverse and remand.

BACKGROUND

A package containing a clown doll was sent to defendant from Texas. Inside the doll wasa plastic bag containing a rock of cocaine that weighed 27.81 grams. The package was interceptedat O'Hare Airport, and pursuant to a federal search warrant, a signaling device called an AT-4transmitter was taped inside the package containing the clown doll by a postal inspector, WilliamNichols.

The postal inspector dressed as a regular mail carrier delivered the package to defendant ather home where she had resided her entire life. Defendant was 26 years old at that time. The postalinspector testified that, before accepting the package, defendant questioned him because he was nother regular mail carrier. According to the testimony of the postal inspector, defendant appeared"cautious and suspicious." Inspector Nichols told defendant that if she did not want the package itwould be sent back to Texas. Defendant told him she would take the package. Inspector Nicholsinformed defendant that she had to sign for the package. Defendant then signed a receipt andaccepted the package.

During direct examination Inspector Nichols testified that defendant told him that she wasexpecting a package from Texas. It was revealed on cross-examination that he had created amemorandum of his "interview" with the defendant that contained this admission. This admissionand the written memorandum of defendant's alleged oral statement were never disclosed or tenderedto the defense. Defense counsel moved for a mistrial, arguing that evidence of defendant's statementthat she was anticipating a package from Texas was not tendered by the State during discovery. Thetrial court denied the motion for a mistrial but offered to continue the case to give defense counselan opportunity to conduct further investigation. Defense counsel declined the offer.

Various Chicago police officers assisted Inspector Nichols by keeping defendant undersurveillance. Chicago police officer Stump testified that after defendant accepted the package heobserved the defendant looking back and forth in front of the house before reentering. Ten minutesafter defendant entered her home, Inspector Nichols was alerted by the transmitter that the packagehad been opened. He notified the Chicago police officers of the transmission. By the time InspectorNichols entered the defendant's house the police were already on the premises. Defendant was inthe living room. Two infants and an adult male were also present.

Inspector Nichols found the package on the kitchen table and recovered the transmitter. Oneof the officers present during the search entered the house with the clown doll in his hand. Thedefendant told police she threw the clown doll out of the window because she was scared. Theofficers recovered $800 in United States currency from defendant's bedroom. The police alsorecovered a plastic bag containing the cocaine concealed inside the clown doll. The partiesstipulated that the lab analysis of the powder proved positive for cocaine in the amount of 27.81grams.

Defendant testified that a man dressed in a postal uniform asked her whether she would signfor a package that was addressed in her name. She testified she questioned the mail carrier aboutwhy he was delivering her mail as he had never done so before. She testified that she asked him whyshould she sign for the package and he asked "Is Larry home? Could you sign it and just give it toLarry?" She indicated that she never told the mail carrier that she was expecting a package. She alsodenied looking up and down the street before reentering her home. Defendant testified that whenshe signed for the package, she did not know what was contained inside and had not orderedanything. Defendant testified that her male friend, Curtis Shelby, who was present in the houseat the time, opened the package. He asked her whether the package was intended as a joke becauseit contained a doll. Suddenly, according to defendant, Shelby began to scream that men wererunning through her gangway and told her to get rid of the doll. Shelby told her to throw the doll outthe window. She testified that she then threw the doll out the window because she was scared.

Defendant indicated that she admitted the officers into the home and told the police not tobreak the door down because she did not want her mother's house damaged. In response to questionsby the police, she told them the location of her money in her closet and her mother's money in hermother's room. The record does not clearly establish the amount of cash recovered, but on appeal,the State submits that the amount was $800. The police found no drug paraphernalia or guns in thehouse.

The trial court found the defendant guilty of possession of a controlled substance with intentto deliver. Defendant was sentenced to six years in prison. The defendant was working, had noprevious felony arrests or convictions, had no drug history and was the mother of five children.

ANALYSIS

I. DISCOVERY VIOLATION

We first address defendant's argument that the State's failure to disclose in discovery astatement made by defendant to Inspector Nichols denied defendant her right to due process and afair trial. It is undisputed that evidence of defendant's alleged admission to Inspector Nichols wasnot disclosed or tendered to defense counsel during discovery. The standard of review for adiscovery violation is whether the trial court abused its discretion. People v. Weaver, 92 Ill. 2d 545,559 (1982). Although the judgment of the trial court is given great weight, a reviewing court willfind an abuse of discretion when a defendant is prejudiced by the discovery violation and the trialcourt fails to eliminate the prejudice. Weaver, 92 Ill. 2d at 559.

During the direct examination of Inspector Nichols by the State, it was revealed for the firsttime that defendant had allegedly told Inspector Nichols that she was expecting a package fromTexas. On cross-examination of Inspector Nichols it was revealed for the first time that InspectorNichols had created a written memorandum of his alleged "interview" with the defendant thatcontained the admission. Defense counsel made a motion for mistrial which was denied. Defensecounsel rejected the trial court's offer of a continuance at that stage in the trial process.

Supreme Court Rule 412 governs disclosure to the accused in criminal cases. 134 Ill. 2d R.412. Rule 412 in pertinent part provides as follows:

"(a) Except as is otherwise provided in these rules as tomatters not subject to disclosure and protective orders, the Stateshall, upon written motion of defense counsel, disclose to defensecounsel the following material and information within its possessionor control:

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(ii) any written or recorded statements and the substance of any oral statements made by the accused ***and a list of witnesses to the making and acknowledgment ofsuch statements." 134 Ill. 2d R. 412 (a)(ii).

The duty of the State to disclose under Rule 412 is a continuing one, requiring promptnotification to the defendant of the discovery of any additional material or information, up to andduring trial. 134 Ill. 2d R. 415(b); People v. Watson, 76 Ill. App. 3d 931, 935-36 (1979). Whilecompliance with the discovery rules is mandatory, the failure to comply with these rules does notrequire a reversal absent a showing of prejudice. People v. Robinson, 157 Ill. 2d 68, 79 (1993). Anew trial should be granted if the defendant is prejudiced by the discovery violation and the trialcourt fails to eliminate the prejudice. People v. Tripp, 271 Ill. App. 3d 194, 201 (1995).

The State argues that the failure to tender the statement did not prejudice defendant. Wedisagree and find that the State's failure to provide defendant with the substance of the oral statementand a copy of the written memorandum containing the oral statement was a violation of Rule412(a)(ii) which prejudiced defendant. In deciding whether a defendant is entitled to a new trial asthe result of a discovery violation by the State, the supreme court has articulated the factors we areto consider as including the following: (1) the closeness of the evidence; (2) the strength of theundisclosed evidence; (3) the likelihood that prior notice could have helped the defense discredit theevidence; and (4) the willfulness of the State in failing to disclose the new evidence. Weaver, 92 Ill.2d at 560.

A. Closeness of the Evidence

First, we address the closeness of the evidence. We note that in this case no drugparaphernalia was ever recovered from the defendant's home. No weapons, police scanners, beepersor cellular phones were recovered. None of the indicia of items commonly associated with drugpossession or drug possession with the intent to deliver were present here.

Proof that defendant "knowingly" possessed a controlled substance with the intent to deliveris an element of this offense. People v. Williams, 267 Ill. App. 3d 870 (1994). The element ofknowledge may be proved by evidence of acts, declarations, or conduct from which the fact findermay infer knowledge. People v. Butler, 304 Ill. App. 3d 750, 755 (1999). The only evidencedemonstrating knowledge that a package was expected by the defendant from Texas was theundisclosed oral statement allegedly made by defendant to Inspector Nichols that she was expectinga package from Texas. Here, there is no evidence that the defendant opened the clown doll thatcontained the cocaine. Moreover, it is uncontested that one could not determine what was containedinside the doll simply by looking at it. The evidence showing defendant's knowledge of the packagethat subsequently proved to be drugs is provided by the defendant's "alleged" oral statement toInspector Nichols which was first disclosed during trial. We further note the memorandumcontaining that alleged oral statement was undated and there was no evidence that it was signed.

Regarding defendant's conduct when she accepted the package, Inspector Nichols testifiedthat defendant appeared cautious and suspicious. However, defendant explained her suspicion astriggered by the fact that she knew Inspector Nichols had never delivered her mail before and shequestioned him about why he was delivering her mail. Looking at Inspector Nichols' testimony intotal regarding defendant's demeanor demonstrates that Inspector Nichols recognized that fact:

"THE STATE: Would you describe her demeanor at that time.

NICHOLS: Cautious, suspicious. She just didn't understand. She looked - she was constantly looking at the package but then shewould look at me asking again twice why was I delivering the mail. I then said if you did not want the package it would be sent back toTexas."

Based on that record, Inspector Nichols' testimony that defendant appeared cautious and suspiciouscan be found to be consistent with defendant's explanation that she was suspicious because InspectorNichols had never previously delivered her mail.

The record reflects inconsistent evidence regarding defendant's conduct after she acceptedthe package. Chicago police officer Stump testified that, after defendant received the package, "Sheproceeded to the sidewalk in front of her house and she looked to the north, she looked to the south. She walked back and forth in front of her house for a couple seconds and then she proceededeastbound through her gangway which is on the south side of her house and she was out of myview." Defendant denied looking up and down the street before reentering her home. She explainedwhy she threw the clown doll out of the window. She indicated that she became scared when CurtisShelby told her to throw the doll out of the window because people were running through hergangway. The evidence is also conflicting regarding defendant's conduct when the police came toher door. The State contends the door to defendant's home was forced open by the police, whiledefendant testified that no force was used and she opened the door voluntarily.

Based on the record, including the following: (1) the lack of any evidence commonlyassociated with drug possession or drug possession with intent to deliver; (2) the observation madeby Inspector Nichols of defendant's demeanor which was consistent with defendant's explanation forher suspicion; (3) the lack of any evidence that defendant opened the clown doll; and (4) theinconsistencies in the record, we conclude this was a close case. We further recognize that the closerthe evidence, the stronger the argument for excluding the statement or declaring a mistrial. Weaver,92 Ill. 2d at 560.

B. Strength of Undisclosed Evidence

Turning to the second factor, the strength of the undisclosed evidence, we note that thestatement allegedly made by defendant to Inspector Nichols provides evidence as to the element ofknowledge. Proof that defendant "knowingly" possessed a controlled substance is an element ofpossession of a controlled substance with intent to deliver which may be proved by acts, declarationsor conduct from which the fact finder may infer knowledge. Williams, 267 Ill. App. 3d 870. Thedue process clause protects an accused against conviction except upon proof beyond a reasonabledoubt of every element of the offense charged. In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368,375, 90 S. Ct. 1068, 1073 (1970); U.S. Const., amend. XIV; Ill. Const. 1970, art I.,