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2 August 2000

JUSTICE HUTCHINSON delivered the opinion of the court:

In March 1998, the State filed a petition to adjudicate therespondent, M.F., a delinquent minor. The petition alleged that,on March 17, 1998, respondent was under 17 years of age and committed the offense of obstructing justice, a Class 4 felony (720ILCS 5/31--4(a), (d)(1) (West 1998)). The petition further allegedthat, with the intent to obstruct his own prosecution, "heknowingly concealed physical evidence from Phillip Brown, a policeofficer, in that he threw baggies containing cocaine, a controlledsubstance, off of a rooftop located at 253 Villa Street, Elgin." The petition also alleged that respondent committed the offenseof unlawful possession of a controlled substance (unlawful possession), a Class 4 felony, in that he "knowingly had in hispossession not more than 15 grams of a substance containingcocaine." 720 ILCS 570/402(c) (West 1998). The trial court foundthat the respondent committed both offenses beyond a reasonabledoubt, adjudicated him a juvenile delinquent, imposed a 24-monthterm of probation, and ordered that he be placed in the local"Challenge Program" and undergo counseling.

Respondent timely appealed, and the office of the StateAppellate Defendant was appointed to represent him during thisappeal. Appellate counsel filed an Anders motion seeking leaveto withdraw as counsel on appeal. See Anders v. California, 386U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). In his motion,appellate counsel concluded that there were no issues of meritthat warranted relief in this court. Appellate counsel suggestedtwo possible justiciable issues: whether the charges were provedbeyond a reasonable doubt and whether the disposition wasappropriate. This court denied the motion and ordered the partiesto brief the issue of "obstructing justice." The sole questionnow before this court is whether the respondent was proved guiltybeyond a reasonable doubt of the offense of obstructing justicebased on his alleged concealment of the cocaine baggies. Wereverse the finding and order of the trial court with respect tothe charge of obstructing justice, and we remand the cause for the modificationof the record and relevant orders to show that respondent was onlyfound guilty of the unlawful possession offense. See In re W.C.,167 Ill. 2d 307, 341-43 (1995) (order modified to avoid futureprejudice to minor).

At the adjudicatory hearing, Officer Phillip Brown of theElgin police department testified that, on the date in question,he went to an apartment at 253 Villa Street in Elgin, Illinois,at about 7:30 p.m. to assist the narcotics unit with a searchwarrant. He was to secure the front of the residence as the otherofficers went upstairs to execute the warrant. After hearing thepolice knock at the door and announce their presence, Brown sawrespondent come out of the window onto the front "landing" or roofover the entrance to the building. Brown told him to stay thereand not move because the police were there with a search warrant. Respondent twice reached into his pocket and each time made athrowing motion toward the street behind Brown, who was standingon the sidewalk about 30 feet from respondent. Brown did not seewhat the respondent had in his hands. Brown's flashlight wasshining onto respondent's face and person, and Brown got a goodlook at him.

Brown testified that, after making the throwing motions,respondent lay down on the landing and then tried to jump onto atree near the landing. At that point, Officer Adam came out thewindow, and respondent was taken from the landing and placed intocustody. Brown then looked in the direction respondent had thrownthe objects, approximately 10 feet from him. He located threebags containing a rock-like substance, which were turned over tothe evidence technician. The ground was wet as it was mistingthat night, but the objects were "relatively" dry.

On cross-examination, Brown testified that it was pretty darkout and he did not see anyone else on the landing. Once insidethe apartment, Brown identified respondent by his clothing. Onredirect examination, Brown stated that 15 seconds elapsed betweenhis first observation of respondent being taken into custody andhis later identification of him inside the residence. Brown wentinside after picking up the evidence he had located.

Officer Jeffrey Patrick Adam testified that he went to theapartment to execute a search warrant for narcotics. DetectiveRouse knocked and announced their office and their intentions. After a few seconds, Sergeant Barnes made a forced entry into theresidence with a battering ram. This took 5 to 10 seconds. Adamand Officer Theriault went to the kitchen area and located LavedaJ. and had her lie down. Adam observed that the kitchen windowthat opened onto the landing was forced out. As he went to thewindow, Anthony C. began to crawl in through the window. Adampulled him through the window and handed him over to Theriault. Respondent was crouched on the landing just outside the window. Adam leaned against the wall, grabbed him, and pulled him throughthe window. Adam found suspected rock cocaine on the landingwhere respondent was crouched, and he turned the evidence over toDetective Elias.

There was a recess in the proceedings. At the direction ofthe trial court, the prosecution presented argument on the lawregarding the offense of obstructing justice and whether the actof throwing the baggies off the roof or landing would support theoffense. Apparently, no case law directly on point was found. After hearing arguments about other cases generally, the courtdenied respondent's motion for a directed finding. The courtconcluded that "technically, there is obstructing justice, andespecially in Juvenile Court, it does not make any difference whatthe offense is and the punishment only runs up to the 21stbirthday or whatever the punishment is."

The State also presented the testimony of Barbara Schuman, aforensic scientist. She testified that she tested two samples ofthe evidence recovered from the scene and found that thesubstances tested positive for cocaine. One exhibit weighed 4.33grams and the other weighed 1.6 grams.

The defense called Officer Adam, who testified that the lightwas on in the kitchen. There was light shining up from at leasttwo officers' handheld flashlights. He did not believe there wasany light on Anthony. He only saw parts of Anthony. From thewindow, Adam later saw respondent crouched on the landing oroverhang. Although it was dark outside, there was enoughbackground lighting to keep the area "moderately lit."

Officer Brown further testified that he found the threeseparate baggies containing a rock-like substance while Adam wasplacing respondent into custody.

Respondent testified that he was at Laveda J.'s house to meeta friend. Someone knocked at the door. Then respondent heardsomeone kicking the door. He saw Anthony go outside the window.Respondent followed behind him and went out onto the roof. He didnot know who was hitting the door, and he was scared. He then sawAdam bring Anthony in through the window. Adam also broughtrespondent in and placed him in handcuffs. Respondent did not seeany officers below until he saw the flashlight. He did not knowthey were police officers until he saw Anthony being pulled inthrough the window. Respondent denied throwing anything off theroof and denied hearing the officer tell him not to move. Headmitted crouching down on the roof to see who was down below; itwas dark out.

The trial court found respondent guilty beyond a reasonabledoubt of the unlawful possession of cocaine, having determinedthat the cocaine came from respondent. The court also found himguilty of obstructing justice, adding, "which is also a Class 4felony, which is overkill, but I'll find him guilty of that."

In a juvenile delinquency proceeding, the State must provebeyond a reasonable doubt that the respondent committed thecharged offense. In re W.C., 167 Ill. 2d 307, 336 (1995). As incriminal cases, the standard of review in determining thesufficiency of the evidence is whether, after viewing the evidencein the light most favorable to the prosecution, any rational trierof fact could have found the essential elements of the crimebeyond a reasonable doubt. W.C., 167 Ill. 2d at 336. We will notreverse a criminal conviction unless the evidence is sounsatisfactory or improbable that it raises a reasonable doubt ofthe defendant's guilt. People v. Frieberg, 147 Ill. 2d 326, 359(1992).

On appeal, respondent argues that, even accepting Brown'stestimony as true, respondent's conduct in throwing the baggiesfrom the rooftop did not constitute obstructing justice. Inexamining all of the evidence in the light most favorable to theState, we cannot say that the elements of the offense ofobstructing justice were proved beyond a reasonable doubt in thisparticular case. A charge of obstructing justice must be pleadedwith particularity (see People v. Lyda, 27 Ill. App. 3d 906, 912(1975)), and the elements of the charging instrument must beproved as alleged and without variance (People v. Miller, 253 Ill.App. 3d 1032, 1036 (1993)). Section 31--4(a) of the CriminalCode of 1961 (Code) provides in pertinent part:

"A person obstructs justice when, with intent to preventthe apprehension or obstruct the prosecution or defense ofany person, he knowingly commits any of the following acts:

(a) Destroys, alters, conceals or disguises physicalevidence ***." 720 ILCS 5/31--4(a) (West 1998).

In this case, the State's petition charged that, with theintent to obstruct his own prosecution, respondent knowinglyconcealed physical evidence by throwing baggies containing cocaineoff of the rooftop at 253 Villa Street, Elgin. The question hereis whether the element of concealment was proved beyond areasonable doubt where the accused threw down the drugs from arooftop or landing onto the ground in the vicinity of a policeofficer, who saw the act and who was shining a flashlight on theaccused as he was about to be placed into custody for a drugoffense, and the drugs were recovered by the police from that areawithin seconds of the accused's apprehension. We believe thatthe conduct in this case does not constitute obstructing justicepremised on the concealment of evidence.

Respondent argues that, rather than serving as an act ofobstruction, throwing down the drugs actually demonstratedpossession, an element of the unlawful possession charge. Respondent distinguishes People v. Morgan, 169 Ill. App. 3d 368(1988), the principal case upon which the State relies. InMorgan, the records of an adult bookstore were subpoenaed inconnection with a grand jury investigation of obscenity. Themanager of the bookstore testified that she informed the defendantof the subpoena and that the defendant, who was her supervisor,took four boxes of documents from the bookstore, includingbookkeeping and deposit slips. He told her that he haddistributed them at various rest areas around central Illinois. She testified that he had never taken documents in this mannerbefore and she never again saw the documents that were removedfrom the store. The defendant was found guilty of obstructingjustice. The reviewing court concluded that the element of intentcould be inferred from the circumstances. The jury couldreasonably have inferred that the defendant took the records andconcealed them with the intent to prevent the prosecution ofhimself or others and that they would likely have been used tosupport the State's case in the underlying obscenityinvestigation.

Defendant argues that, unlike the defendant in Morgan, he didnot conceal the baggies merely by throwing them away from hisperson, and they were retrieved by the officer within seconds sothat his prosecution was not obstructed. Since the term"conceal" is not defined by the statute and there is no case onpoint in Illinois addressing the issue of concealment based onthis set of facts, we have examined cases from other jurisdictionsthat have applied this term to similar facts. Other states havesimilar obstruction or evidence-tampering statutes making it acrime to alter, destroy, mutilate, suppress, conceal, or removephysical evidence with the intent to impair its verity oravailability in an official legal proceeding or a criminalinvestigation. See, e.g., Vigue v. State, 987 P.2d 204, 206(Alaska App. 1999).

The case of Vigue is especially instructive. In Vigue, apolice officer approached the defendant, Vigue, based on probablecause that Vigue was violating a municipal ordinance by urinatingin public. When Vigue began to walk away, the officer directedhim to turn so that the officer could see Vigue's hands. Viguekept his hands behind his back. As the officer approached, he sawVigue make a shaking motion as though Vigue had just dropped orattempted to drop something from his hands. The officer could notat first see what, if anything, had fallen to the ground. Afterdetaining Vigue, the officer walked over to the area where Viguehad been standing and found on the ground five little white rocksthat appeared to be crack cocaine. Vigue was placed under arrestfor the unlawful possession of cocaine. He was later convictedof both the unlawful possession offense and tampering with theevidence.

On appeal, Vigue argued that the act of tossing or droppingthe cocaine to the ground did not constitute the suppression,concealment, or removal of the evidence. The Vigue court examinedthe decisions of several states that had ruled on the issue andhad evidence-tampering statutes similar to Alaska's. Although theseveral courts relied on different rationales for their decisions,the Vigue court concluded that those courts "unanimously agreethat a defendant's act of dropping or tossing away evidence in thesight of the police does not constitute the actus reus oftampering with physical evidence." Vigue, 987 P.2d at 206. There, as here, the term "conceal" was not defined by the statute.

The Vigue court reversed the defendant's conviction,concluding that he did not suppress, conceal, or remove thecocaine when he dropped it or tossed it to the ground so that itwould be less likely to come to the officer's attention. Thecourt clearly distinguished between the necessary intent orculpable mental state--the intent to impair the availability ofthe evidence--and the actus reus or physical act of the crime. The court found that, although Vigue intended to make it harderto detect the cocaine, no act of concealment occurred because theofficer observed the defendant's action and was alerted to thepossibility that evidence might be on the ground. Vigue, 989 P.2dat 210. The Alaska court determined that the conduct amountedonly to abandonment, not concealment, of the evidence. Vigue, 987P.2d at 210.

The Vigue court did not view the defendant's conduct as anattempted offense. The Vigue court adopted a narrowinterpretation of the terms "suppress" or "conceal," holding thata broad reading of these terms "would lead to results that areinexplicably harsh and probably not within the legislature'sintent." Vigue, 987 P.2d at 211. The court observed that, unlessthe statute was interpreted narrowly, even misdemeanor possessoryoffenses would often be converted into felonies. The courtspecially noted the New Jersey approach, where the evidence-tampering statutes would not be applied to attempts to hide ortoss evidence of an ongoing possessory offense. Vigue, 987 P.2dat 211, citing State v. Sharpless, 314 N.J. Super. 440, 715 A.2d333 (1998), and State v. Fuqua, 303 N.J. Super. 40, 696 A.2d 44(1997).

We also find instructive Commonwealth v. Delgado, 544 Pa.591, 679 A.2d 223 (1996), a case relied upon by the Vigue court. In that case, the defendant, Delgado, was convicted of unlawfulpossession of cocaine, unlawful possession of cocaine with intentto deliver, and tampering with physical evidence. Following acontrolled purchase of drugs, two state narcotics agentsapproached Delgado, and he attempted to flee the scene. AsDelgado ran down an alley, one of the agents observed him throwan object on top of a small outbuilding or garage. The object wasretrieved and subsequently determined to be a plastic bagcontaining cocaine.

The evidence-tampering statute under which Delgado wasconvicted provided that a person commits an offense if she or he alters, destroys, conceals, or removes any record, document, orthing with intent to impair its verity or availability in anofficial proceeding or investigation. Delgado, 544 Pa. at 592,679 A.2d at 224. The court held that discarding contraband inplain view of a pursuing police officer failed to demonstrate theintent necessary to maintain a conviction and did not constitutethe destruction or concealment of evidence as contemplated by thestatute. Delgado, 544 Pa. at 594, 679 A.2d at 225. The courtconcluded that this act "was nothing more than the abandonment ofthe evidence." Delgado, 544 Pa. at 594, 679 A.2d at 225.

The Delgado court further noted that the evidence-tamperingoffense was punishable by up to two years' imprisonment, whilesimple cocaine possession was punishable by a maximum of oneyear's imprisonment. The court determined that the legislaturedid not intend that the simple act of abandonment would constitutethe commission of an additional crime of a greater degree andreversed Delgado's conviction. Delgado, 544 Pa. at 594, 679 A.2dat 225.

Fuqua and Sharpless, the two New Jersey cases cited in Vigue,reached similar conclusions. In Fuqua, the defendant wasconvicted of possession of a controlled dangerous substance andhindering apprehension after the police searched him anddiscovered cocaine in his socks. The reviewing court consideredthe hindering statute, which prohibited suppressing by way ofconcealment any evidence of a crime with the purpose of hinderingone's own apprehension, prosecution, conviction, or punishment. Fuqua, 303 N.J. Super. at 46, 696 A.2d at 47. The court concludedthat in order to avoid implicating the fifth amendment prohibitionagainst self-incrimination the statute was "sensibly construed torefer to evidence of a completed criminal act, not a current possessorycrime," and reversed the defendant's hindering conviction. Fuqua,303 N.J. Super. at 47, 696 A.2d at 48.

In Sharpless, the defendant was convicted of evidencetampering under a statute that prohibited altering, destroying,concealing or removing any article or object with the purpose ofimpairing its verity or availability in an official proceeding orinvestigation. Sharpless, 314 N.J. Super. at 457, 715 A.2d at342. After examining decisions in other jurisdictions, includingDelgado, the Sharpless court concluded that a person who possessesdrugs may not be found guilty of tampering with evidence simplybecause he discards or hides the drugs upon the approach of apolice officer. Sharpless, 314 N.J. Super. at 459, 715 A.2d at343. Relying on Fuqua, the court held that the legislatureintended the tampering statute to apply only to completed criminalacts and not a current possessory offense. Sharpless, 314 N.J.Super. at 459, 715 A.2d at 343, citing Fuqua, 303 N.J. Super. at47, 696 A.2d at 47.

Several other cases have reached the same result inconstruing similar statutes. In State v. Patton, 898 S.W.2d 732(Tenn. Crim. App. 1994), the reviewing court affirmed thedismissal of an indictment charging the defendant with evidencetampering that alleged the defendant tossed aside a bag ofmarijuana while being pursued by police officers. InHollingsworth v. State, 15 S.W.3d 586 (Tex. Ct. App. 2000), thereviewing court reversed the defendant's conviction of evidencetampering when the defendant, who was carrying cocaine in hismouth and spit it out, exposed it to the view of the police. InBoice v. State, 560 So. 2d 1383 (Fla. App. 1990), the reviewingcourt concluded that the defendant's act of tossing a small bagof crack cocaine away from his person while in the presence ofarresting officers amounted merely to abandoning the evidence andwas not concealment sufficient to support a conviction forevidence tampering.

However, when a defendant disposes of contraband in a mannerintended to destroy the evidence or make recovery impossible, suchconduct may constitute evidence tampering. See State v. Jennings,666 So. 2d 131 (Fla. 1995) (limiting Boice and other cases andconcluding that a defendant's swallowing of suspected cocainerocks in response to an officer's shouting "police" could amountto concealment of evidence impairing its availability for trialunder Florida's tampering statute; dismissal quashed and causeremanded for trial); Hayes v. State, 634 So. 2d 1153 (Fla. App.1994) (defendant threw crack cocaine into drainage outlet; cocainewas later retrieved); McKenzie v. State, 632 So. 2d 276 (Fla. App. 1994) (swallowing cocaine violated statute).

It appears that, under the scenarios presented, the clearweight of authority from other states concludes that where adefendant merely drops, throws down, or abandons drugs in thevicinity of the defendant and in the presence and view of thepolice, this conduct does not constitute concealment that willsupport an evidence-tampering or obstruction charge, or aconviction that is additional to and separate from the ongoingpossessory offense.

Like other jurisdictions, this court construes criminalstatutes strictly, rather than expansively. The language used bythe legislature is the best indication of legislative intent. People v. Lavallier, 187 Ill. 2d 464, 468 (1999). Where thelanguage is plain and unambiguous, courts will not read inexceptions, limitations, or conditions that the legislature didnot express, nor should a court search for any subtle or notreadily apparent intention of the legislature. People v.Laubscher, 183 Ill. 2d 330, 337 (1998). Criminal or penalstatutes are to be strictly construed in favor of an accused, andnothing should be taken by intendment or implication beyond theobvious or literal meaning of the statute. Laubscher, 183 Ill.2d at 337. Absent a clearer legislative intent, we conclude thatwhen an individual who is suspected of committing a possessoryoffense abandons evidence by dropping or throwing it to the groundin the presence of a police officer, such conduct does notconstitute an act of concealment within the meaning of the statutethat would sustain a conviction for the additional felony offenseof obstructing justice.

In the present case, we hold that the evidence of concealmentwas insufficient to sustain the conviction of obstructing justice. Respondent threw bags of drugs down from the landing and onto theground in the vicinity of and in view of the police officer whowas shining a flashlight on respondent, saw his conduct, andrecovered the drugs within seconds of the act. Under thecircumstances, it does not appear that this act was likely toeither destroy the evidence or make recovery less likely. Therefore, even though respondent may have intended to prevent theapprehension or obstruct the prosecution of himself for thepossession charge, throwing the drugs to the ground was not an actof concealment that will sustain the additional obstructingjustice offense.

Accordingly, the circuit court's finding and order withrespect to obstructing justice are reversed, and the cause isremanded for the modification of the record and any relevantorders to show that respondent was only found guilty of theunlawful possession offense. No other issues of merit having beenargued, the judgment of the circuit court of Kane County isaffirmed in all other respects.

Affirmed in part and reversed in part; cause remanded withdirections.

McLAREN and GEIGER, JJ., concur.