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No. 2--03--0151

JUSTICE KAPALA delivered the opinion of the court:

Defendant, Eddie J. Bartee, appeals from his conviction of unlawful possession of less than15 grams of a controlled substance (720 ILCS 570/402(c) (West 2002)) after a jury trial in the circuitcourt of Kane County. We affirm.

I. BACKGROUND

The relevant facts elicited at trial are as follows. On August 9, 2002, the Elgin policeconducted a reverse sting in the River Landings apartment complex. A reverse sting consists of anundercover police officer posing as a drug dealer so that the police can apprehend purchasers of thedrugs. Detective Frank Jones of the Bellwood police department posed as the drug dealer. Joneswas positioned in the parking lot of the apartment complex, standing near parked vehicles. Jones wasvideo recorded by another officer who was in the surveillance team.

After approximately one-half hour of standing, Jones observed defendant riding a bicycle. Defendant initially just rode past Jones. Approximately 10 to 15 minutes later, defendant engagedJones and asked him if he had seen someone named Curtis. Jones replied that he had not. Defendantthen informed Jones that he wanted some "forties." Jones testified that "forties" meant two rocks ofcocaine for $40. Jones replied that he had the rock cocaine. Defendant inquired about the qualityof the cocaine and Jones replied that it would "knock his socks off." Jones then removed from hisbreast pocket one of the baggies that had been prepared by the police for sale. Defendant informedJones to be careful during the transaction because there were cameras around the complex. Defendant was not happy with the one baggie given to him by Jones because it was not sufficient toconstitute a "forty." Jones then gave defendant another baggie. Defendant then gave Jones $40 andput the baggies in his mouth. Jones informed defendant that his name was "J" and defendant thenrode off.

Jones then activated a pager which alerted the officers in the surveillance unit that a sale hadoccurred. The arrest team then proceeded in their vehicle after defendant. As the officersapproached defendant, they noticed him chewing and attempting to swallow. Defendant wasapprehended and handcuffed. The officers inspected defendant's mouth but did not find anysubstance. The baggies given to defendant were never recovered.

At trial, Sergeant Jeff Adam of the Elgin police department testified that the police wererunning sting operations because of the drug problem on the streets. Adam specifically testified:

"[ADAM]: [W]e analyzed our drug problem and realized that we had a very strongstreet level -

[Objection by defense counsel.]

***

THE COURT: Overruled.

[ADAM]: Continuing, and we realized that we had a significant street level problem.

The first part of the phase was called operation Resolve. We targeted street level dealers. Second part of the phase, which was Operation Resolve Part Two, was we were targeting theusers of the cocaine. What we did is we attempted to get all the street level dealers off thestreet; however, we still saw the demand side of it, and we decided to replace it with our ownundercover officers posing as street dealers, and that's where we were at on August 9, 2002.

[ASSISTANT STATE'S ATTORNEY]: Did the first phase result in any arrests?

[ADAM]: Yes, it did.

[ASSISTANT STATE'S ATTORNEY]: And with respect to the Rivers Landing area,did any arrests occur in that area?

[ADAM]: Yes. The entire part of Operation Resolve, we had approximately 80 arrestsout of it. Out of those 80 arrests, approximately 30 to 35 of those arrests took place in thearea of Clock Tower Plaza and Rivers Landing apartments, which are right next to eachother."

Adam also testified that the drugs being sold by Jones were made from cocaine obtained in a previousarrest. The drugs were taken to the crime lab to be mixed with other substances. Adam testified thatthe mixing occurred so that if any of the drugs were not recovered by the police they would not bedangerous to anyone who consumed them. After the mixture was retrieved from the lab by theofficers, it was used to coat small pieces of macadamia nuts so that the substance would look likerock cocaine. Sixteen individual baggies were made on August 9, 2002, each containing a piece ofmacadamia nut coated with between one-tenth to one-fourth of a gram of the mixture obtained fromthe lab. On cross-examination, Adam testified that the substance received from the lab washomogenous.

Edward McGill, a forensic scientist specializing in drug chemistry, testified that he receivedinstructions from the Elgin police department to use cocaine obtained from a previous case to preparea mixture that contained a low percentage of cocaine. He was also instructed to weigh the preparedsample and to do a quantitative analysis to determine the exact amount of cocaine in the new sample. McGill performed these tasks by taking some of the cocaine given to him and adding to it Inositolpowder, used in baby formula, and Mannitol powder, a dietary supplement. This produced a powderthat McGill testified contained 7.9% cocaine. The total sample prepared by McGill weighed 77.8grams. He stated that out of 100 grams of the powder he prepared, 7.9 grams would be cocaine. McGill's report was admitted into evidence. It stated that the substance he prepared was 77.8 grams,7.9% of which was cocaine. McGill was also asked, "[n]ow, if [the sample] was mixed withsomething, for example, a macadamia nut, and you had an opportunity to test it, would it test positivefor the presence of cocaine?" After an objection by defense counsel was overruled, McGill answered,"[y]es, I believe I could."

On cross-examination, McGill was questioned as to the testing he performed. McGill testifiedthat he first weighed the materials given to him by the Elgin police. After weighing, McGill used aninfrared spectrophotometer to identify the substance given to him by the police. He testified that theinstrument worked by sending a beam of infrared light onto the sample and then measuring thedifferent absorptions occurring from the sample. According to McGill, different drugs, and differentmolecules in general, absorb infrared light at different wavelengths and degrees. The machineproduces a chart which can be compared to charts of known standards to identify the substance. Thefollowing exchange then occurred between defense counsel and McGill:

"[DEFENSE COUNSEL]: Is [the analysis with the infrared spectrometer] qualitativeor quantitative?

[McGILL]: In the manner that I used it, it's qualitative in that I am using it to identifywhat drug is present, not to identify a percent purity of the drug that's present.

[DEFENSE COUNSEL]: How do you perform a quantitative analysis?

[McGILL]: With that instrument, which is one I normally wouldn't use, as a matterof fact, I have never used in the form of a quantitative analysis, but it can be, you couldmeasure the - the specific wavelength that cocaine or any drug that you might be doing aquantitative analysis on absorbs that, you could use that wavelength, measure the absorbanceof a sample you prepare, then run a standard of known concentration in the instrument,measure that absorbance, and by comparing the two absorbances come up with a percentpurity of your sample."

McGill then testified that the he did a quantitative analysis of the mixture he prepared and that the testwas performed on only a small amount of the total 77.8 grams he prepared.

On redirect examination, McGill testified that he prepared the mixture using approximately6 grams of Mannitol and 60 grams of Inositol mixed with the cocaine given to him. He put thesubstances in a mortar and ground them up very thoroughly with a pestle to produce a fine powder. Furthermore, he stated that the sample size upon which the quantitative analysis was done wasbetween 200 and 500 milligrams of the mixture. With regard to the quantitative analysis, thefollowing exchange took place:

"[ASSISTANT STATE'S ATTORNEY]: Now, in terms of the quantitative analysis,you just did the one -

[McGILL]: One test to determine -

[ASSISTANT STATE'S ATTORNEY]: -- correct?

[McGILL]: Quantitative analysis, yes, that's correct.

[ASSISTANT STATE'S ATTORNEY]: And why is that?

[McGILL]: That's all that's needed.

[ASSISTANT STATE'S ATTORNEY]: Okay. So it would have been redundant todo any further quantitative?

[McGILL]: That's correct."

Upon further redirect examination, the assistant State's Attorney asked:

"[ASSISTANT STATE'S ATTORNEY]: And the reason that more than onequantitative analysis was redundant would be what?

[McGILL]: I would get the same answer."

Defendant was found guilty of unlawful possession of a controlled substance (720 ILCS570/402(c) (West 2002)) and was sentenced to two years and six months in the Illinois Departmentof Corrections. Defendant filed various posttrial motions which were, in relevant part, denied. Defendant filed a timely appeal.

II. ANALYSIS

Defendant makes three contentions on appeal. First, defendant contends that the State failedto prove him guilty beyond a reasonable doubt because it produced no evidence that the substancesold to defendant contained any cocaine. Second, defendant contends that the foundation laid byMcGill was improper and, therefore, did not prove that the test results were accurate. Finally,defendant contends that the comments made by Adam regarding the reasons for the sting operationsand the arrests made in the River Landings complex were improper and prejudicial.

A. Proof that the Substance Sold to Defendant Contained Cocaine

Defendant contends that because the substances sold to him were never individually testedto determine the presence of cocaine, the State failed to prove that defendant possessed a controlledsubstance. Unlawful possession of a controlled substance is defined as follows:

"Except as otherwise authorized by this Act, it is unlawful for any person knowinglyto possess a controlled or counterfeit substance. ***

(c) Any person who violates this Section with regard to an amount of a controlled orcounterfeit substance not set forth in subsection (a) or (d) is guilty of a Class 4 felony." 720ILCS 570/402 (West 2002).

The parties do not dispute that cocaine is a controlled substance; therefore, the sole question beforeus with regard to this contention is whether the State sufficiently proved that the substance possessedby defendant contained cocaine.

The appropriate standard for a sufficiency of the evidence review is whether, after viewingthe evidence in the light most favorable to the prosecution, any rational trier of fact could have foundthe essential elements of the crime beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541(1999). The State must prove in a possession of a controlled substance prosecution that thesubstance at issue is in fact a controlled substance. People v. Hagberg, 192 Ill. 2d 29, 34 (2000).

Claims of insufficient testing usually arise in cases where drugs are seized from defendants. In relation to such cases, our supreme court has held that "[a] chemist *** generally need not testevery sample seized in order to render an opinion as to the makeup of the substance of the whole." People v. Jones, 174 Ill. 2d 427, 429 (1996). "Rather, random testing is permissible when the seizedsamples are sufficiently homogenous so that one may infer beyond a reasonable doubt that theuntested samples contain the same substance as those that are conclusively tested." Jones, 174 Ill.2d at 429. "This rule is based in reason and practicality." Jones, 174 Ill. 2d at 429.

We believe that the reason and practicality upon which the rule is based apply equally to acase such as this where the police have prepared a substance for sale in a reverse sting operation. Itis just as reasonable to infer that untested samples from a sufficiently homogenous substance createdby the police contain the same substance as the tested samples. In fact, we believe such an inferenceis even more reasonable in a case such as this where the chemist can testify as to how the substancewas created. Furthermore, the same practicality concerns present in seizure cases are present inreverse sting cases. Chemists testing these substances do not have an unlimited amount of time torun tests and each test run has associated monetary costs in both labor and equipment. Consequently,it would be impractical to require the State to test every part of every substance brought before it. We see no reason why a substance produced for a reverse sting should be subject to more stringenttesting than a substance that was seized.

Having determined that testing every portion of a sufficiently homogenous substance preparedby the police for a reverse sting operation is not necessary, we must now determine whether thesubstance in this case was sufficiently homogenous. We find that it was. In People v. Kaludis, 146Ill. App. 3d 888 (1986), the court found that 100 tablets seized from the defendant were sufficientlyhomogenous to allow testing of only three pills to prove that all the pills were the same controlledsubstance. Kaludis, 146 Ill. App. 3d at 891-92. In that case, the chemist was able to determine bythe identical markings, lettering characteristics, bevelling, and scoring that the pills weremanufactured on the same tablet press with the same set of dies. Kaludis, 146 Ill. App. 3d at 892. Our supreme court discussed Kaludis when determining whether the substances present in Jones weresufficiently homogenous. Jones, 174 Ill. 2d at 429-30.

This case involves one 77.8-gram package of powder. McGill testified that the substance wasproduced by mixing the cocaine with the other two powders, placing the mixture in a mortar, andgrinding the mixture with a pestle. We believe that such a procedure insured a complete andthorough mixture of the different component substances. Furthermore, defense counsel asked Adamduring cross-examination: "It was homogenous, correct?" Adam replied: "Yes. It was all consistent,yes, sir." Since Adam had seen the substance before it was separated into baggies, we believe histestimony reinforces the homogenous nature of the substance created by McGill. In our opinion, sucha substance is even more homogenous than pills with the same markings, lettering characteristics,bevelling, and scoring. Therefore, we find that the substance created by McGill was sufficientlyhomogenous such that testing of a portion of the substance allowed the jury to infer beyond areasonable doubt that the entire substance was 7.9% cocaine. Consequently, the jury could infer thatthe substance placed on the macadamia nuts sold to defendant also contained 7.9% cocaine. Accordingly, we find that the State presented sufficient evidence to prove beyond a reasonable doubtthat the substance sold to and possessed by defendant contained cocaine.

B. Foundation for McGill's Testimony

Defendant next contends that the foundation laid for McGill's testimony was improper for tworeasons. First, that McGill failed to testify that the test results he relied on were of the type relied onby experts in the field. Second, that McGill failed to testify that the machines used were properlyfunctioning at the time they were used. Therefore, defendant reasons that the State did not provebeyond a reasonable doubt that the sample prepared by McGill contained any cocaine at all, becauseMcGill's testimony regarding the test results was inadmissible due to lack of foundation. The Stateresponds that, by not objecting in the trial court, defendant has waived his argument that McGill failedto testify that the test results he used were of the type relied on by experts in the field. The State alsoargues that, regardless of waiver, a proper foundation was laid.

We hold that defendant has waived these contentions by not objecting in the trial court. Inorder for an objection to be properly preserved for appeal, a party generally must object at trial andraise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 187 (1988). There was onlyone trial objection regarding the foundation for McGill's testimony. McGill testified that the samplehe tested contained 7.9% cocaine and then the following exchange occurred:

"[ASSISTANT STATE'S ATTORNEY]: Now, when you say 7.9 percent cocainecalculated at its base, is that 7.9 percent throughout the entire powder that you have - thatyou have mixed up?

[DEFENSE COUNSEL]: Objection. There is no foundation for that question.

THE COURT: I will sustain the objection on that particular question, but it's certainlya topic you can pursue."

Clearly, this foundational objection was aimed at the testimony regarding whether the substance washomogenous or consistent, not at the test results. Defense counsel made no foundational objectionwhen those results were being presented. Therefore, we find that defendant did not object to thefoundation required to admit the results of the tests run by McGill. While it is true that defendant didmove to strike McGill's testimony, claiming that it was irrelevant and that the accuracy of theequipment used by McGill was not established, this motion did not amount to a proper trial objection.An objection at trial must be made contemporaneously in order to preserve an issue for appeal. People v. Robinson, 157 Ill. 2d 68, 83 (1993), citing Enoch, 122 Ill. 2d at 186. A motion to strikeafter the evidence has been received is not a timely objection. Holder v. Caselton, 275 Ill. App. 3d950, 957 (1995). In this case, defendant did not move to strike McGill's testimony until after McGilland another witness had testified and, thus, it was untimely. Therefore, the motion cannot beconsidered a proper objection.

Furthermore, we find that even if a proper foundation was not laid and, therefore, McGill'strial testimony that the mixture contained cocaine was improperly admitted, the State has otherwiseproved that the substance created by McGill did contain cocaine and that the sample tested by McGillcontained 7.9% cocaine. The following exchange occurred during the trial:

"[ASSISTANT STATE'S ATTORNEY]: I show you what I have marked as People'sExhibit No. 1 for identification purposes. Would you take a look at it and tell me what thatis?

[McGILL]: That's a report I issued giving a result of my analysis on the case.

[ASSISTANT STATE'S ATTORNEY]: Okay. And this is your report that youprepared?

[McGILL]: That's correct.

[ASSISTANT STATE'S ATTORNEY]: Okay. And this report would have beensubmitted to who?

[McGILL]: To the Elgin Police Department.

[ASSISTANT STATE'S ATTORNEY]: Okay. And the results that were indicatedin here described the weight?

[McGILL]: Yes, they do.

[ASSISTANT STATE'S ATTORNEY]: And the weight being what?

[McGILL]: 77.8 grams.

[ASSISTANT STATE'S ATTORNEY]: Okay. And the percentage of cocaine thatis base being what percent?

[McGILL]: 7.9 percent.

[ASSISTANT STATE'S ATTORNEY]: Judge, I would move to have admitted intoevidence People's Exhibit No. 1.

[DEFENSE COUNSEL]: No objection.

THE COURT: Admitted."

Thus, this exchange makes clear that defendant did not object to the admission of the report and, infact, defense counsel specifically stated that he had no objection. As we have already stated, in orderfor an objection to be properly preserved for appeal, a party must generally object at trial and raisethe issue in a posttrial motion. Enoch, 122 Ill. 2d at 187. Because no objection was made, defendantcannot now claim that the report was inadmissible. A reasonable trier of fact could conclude fromthe contents of the report alone that the substance prepared by McGill did in fact contain cocaine,because the report states that the sample tested by McGill yielded a result that indicated it was7.9% cocaine.

C. Testimony of Detective Adam

Finally, defendant contends that portions of Adam's testimony were improper because suchtestimony was irrelevant and prejudicial. Specifically, defendant points to the testimony regardingwhy the sting operations were being conducted and the number of arrests made in the River Landingscomplex area. Defendant asserts that the admission of this testimony constitutes reversible errorbecause Adam's testimony affected the jury's verdict. Defendant does not contend that the testimonyaffected his right to a fair trial in any other way. We find that even if Adam's testimony was irrelevantor prejudicial, the trial court's admission of the testimony did not affect the outcome of the case.

The admission of testimony, such as that challenged here, is subject to harmless error analysis. See People v. Hobley, 159 Ill. 2d 272, 311 (1994). Admission of improper testimony is harmless ifthere is overwhelming evidence to support the conviction. See People v. Gill, 54 Ill. 2d 357, 368-69(1973). In this case, the evidence was overwhelmingly against defendant. Several officers, includingJones, who made the sale, testified to the events on August 9, 2002. Furthermore, the transactionwas videotaped and the tape was played in court. Defendant presented no evidence that he did notpurchase the substance from Jones that day. Having determined that the State sufficiently proved thatthe substance sold to defendant contained cocaine and finding no argument that possession was notproperly proved, we find that the State proved by overwhelming evidence that defendant committedunlawful possession of a controlled substance.

Accordingly, we reject defendant's contention that the testimony of Adam constitutedreversible error.

III. CONCLUSION

For the foregoing reasons we affirm defendant's conviction of unlawful possession of acontrolled substance.

Affirmed.

O'MALLEY, P.J., and BOWMAN, J., concur.