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No. 2--04--1252

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Gary Bohn, was convicted by a jury of unlawful possession of a controlledsubstance (15 grams or more but less than 100 grams of a substance containing cocaine) (720 ILCS570/402(a)(2)(A) (West 2002)), unlawful possession of a controlled substance (15 or more but lessthan 200 pills containing 3,4 MDMA) (720 ILCS 570/402(a)(7.5)(A)(ii) (West 2002)), unlawfulpossession of cannabis (720 ILCS 550/4(d) (West 2002)), and unlawful possession of a firearmwithout a firearm owner's identification (FOID) card (430 ILCS 65/2(a)(1) (West 2002)) and wassubsequently sentenced to a term of probation and a term in the county jail. Defendant now appealsfrom his convictions. We affirm.

On April 17, 2002, officers of the North Central Narcotics Task Force executed a searchwarrant at 16N630 Oaks Lane in West Dundee. Officers seized a bag of cocaine, a bag of cannabis,a number of pills, and various items of drug paraphernalia that had traces of either cocaine orcannabis on them. Proof of ownership in the form of a checkbook showed that defendant, who wasthe only person in the home when the warrant was executed, owned the premises, and he was takeninto custody at that time.

While the search warrant was being executed, a car approached the house, slowed down,made a U-turn, and headed away. Officers eventually stopped the car and questioned the occupants,Chance Lange and Jeff Meyer. Lange told officers that he lived in defendant's house. Lange wasthen arrested on an outstanding warrant. He was not charged with any crime at that time.

The case eventually went to trial before a jury. Officer Leo Monroy testified that he was thefirst officer to enter defendant's house after officers battered in the front door. He saw defendantwalking out of a room referred to as the library and told him to stop and get down. Defendant lookedback into the library, then obeyed. When asked if he was "expecting trouble," defendant responded,"I knew this was going to happen." Officer Monroy noticed a strong odor of burnt cannabis in thelibrary and discovered cannabis, cocaine, pills, and various drug paraphernalia and items withcocaine or cannabis residue in the library. Many of these items were found out in the open, on topof a large cigar humidor or on bookshelves. A small vial containing white powder was found eitherin defendant's pants pocket or the library, and a pipe with cannabis residue was found on top of atelevision set in the family room. Defendant's checkbook and a letter addressed to him were alsofound in the library. At some point, Monroy learned that Lange also lived in the house, but Monroycould not remember the nature of the indicia. When asked by defense counsel, "If Lange was home,he would be sitting here?", Monroy responded, "Along with him [defendant], sir, yes."

Lange testified during defendant's case that he was defendant's personal trainer and had livedin defendant's home for about one year at the time of the execution of the search warrant. Langetestified that parties were occasionally held in the house and that alcohol and drugs, includingmarijuana, cocaine, and Ecstasy, were used. Lange, his girlfriend, Tia Jordan, and defendant allpartook of drugs at those parties. Jordan also lived with Lange at defendant's house, but defendantkicked her out around April 12 after she overdosed on drugs.

Lange testified that defendant was not staying overnight at the house in early- to mid-April2002. Lange brought Jordan back to stay with him starting about four days before the search warrantwas executed. Jordan brought drugs that they stored in Lange's bedroom. On April 17, he andJordan were "doing drugs" in the family room of defendant's house. They put the drugs in the librarybecause it was more convenient. They left the house after 3 p.m. and went to the home of JeffMeyer. At about 6:30, Lange and Meyer were headed to defendant's house to retrieve the drugs fromthe house when Meyer saw a police car in the driveway of the house. They were pulled over afterthey pulled a U-turn and sped away. Lange told officers about the parties and drug use that had goneon in the house.

Lange then testified that, in March 2004, he flew from Florida to Chicago, at defendant'sexpense, to meet with defendant's attorney. He stated that his conscience told him that he "shouldcome forward. They were my drugs." Lange was aware that he could be charged criminally if thedrugs were his. Defendant also paid for Lange's travel and housing expenses related to testifying atthe trial. However, when asked whose drugs were in the house on April 17, he replied that "[t]hosewere Tia's."

On cross-examination, Lange stated that he and Jordan kept their personal belongings in hisbedroom. Defendant kept personal items, furniture, cigars, books, and a computer in the library. When Lange was at the police station after Meyer's car was stopped, he did not tell the police thatthe drugs in the house belonged to him or to Jordan. Although he lived with defendant for a year,he told the police that he "occasionally" stayed at defendant's house. He also told the officers thathe was aware that there was cocaine, marijuana, and Ecstacy in defendant's house. However, he didnot tell the police that the drugs found in defendant's house belonged to Jordan or that he was goingto the house to retrieve those drugs. He saw Jordan get marijuana from the library on April 17 andalso saw her use a scale and a grinder located in the library.

Defendant testified that, in early April 2002, he spent most of his nights at the home of hisgirlfriend, Victoria Nations. He would occasionally go to his own house during the week to pick upclothes and check the mail, and he stayed at his house on weekends. He spent the night of April 16at Nations' house. On April 17, he stopped by his house after work to drop off some of Nations'possessions. No one else was in the house when he arrived, but he could smell the odor of burntcannabis. He was sitting on the couch, talking to his ex-wife on the telephone, when the policearrived. He had not entered the library since he arrived at the house on April 17, and he did notknow that there were any drugs in the library. He was handcuffed and detained in the family room. He did not possess any drugs on April 17.

Defendant was aware that people used drugs at parties held in his house, and he occasionallyused drugs himself. Sometimes Jordan brought drugs, other times other people brought them. Hehad seen both Lange and Jordan using drugs and giving drugs to other people in his house. Whenasked if he would know if drugs were sitting out in plain view on the cigar humidor in his library,defendant responded, "Not unless I walked into that room."

The testimony of other witnesses is omitted for purposes of this disposition.

After Lange testified, he was apparently arrested outside the courtroom. The record containsa one-count complaint, dated September 14, 2004, charging Lange with possession with intent todeliver 15 grams or more, but less than 100 grams, of a substance containing cocaine, the violationoccurring on April 17, 2002, the same date as the execution of the search warrant. Defendant toldthe trial court of Lange's arrest and said:

"I'd like to introduce that evidence on behalf of the Defendant as indicating that theparty opponent in this case, being the State, believed his [Lange's] testimony to such anextent that he's been charged, I take it, with possession of these drugs; and I think the Juryought to know that."

The State objected, calling such information irrelevant, prejudicial, and confusing. The State alsoargued that more than one person can possess drugs and that multiple people were involved in thepossession of the drugs at issue. The State then argued:

"By Chance Lange's testimony, at least two people possessed the drugs. To say thathe was arrested and then to say that that means we believe; that is, the State in thisprosecution of this Defendant believed Chance Lange is absolutely and positively ridiculous. I don't believe Chance Lange at all, and I'm going to argue that I don't believe him."

The court then ruled:

"I think the bottom line is when you look at this kind of evidence, it legally doesn'tadd anything to who or what this Defendant did [sic]. What Mr. Powers [assistant State'sAttorney] or another State's Attorney may believe in terms of who should be arrested is notrelevant to this proceeding. I don't see an appropriate basis to allow that evidence in, so Iwon't."

After the jury returned its verdicts, defendant filed a motion for arrest of judgment or, in thealternative, for a new trial. Defendant alleged, among other things:

"[T]he court erred in not allowing the defense to inform the jury that the State,through its agents, had Chance Lange arrested for possession of the same drugs involved inthis case once he left the witness stand, which was inconsistent with their [sic] position thathe was not telling the truth when he stated that the drugs found in the home in question werehis and not the defendant's. (See attached complaint[.])

While such testimony may have also established joint possession, the defense was,nonetheless, entitled to show the jury that the State thought enough of Mr. Lange's testimonyto cause him to be arrested[.]"

The trial court denied the motion, and this appeal followed.

Defendant now contends that the trial court erred in denying his request that the jury beinformed that Lange was arrested for possession of the same drugs that defendant was accused ofpossessing. Evidentiary questions are left to the sound discretion of the trial court, and this court willnot reverse a decision on such a question unless the trial court abuses that discretion. People v. Cruz,162 Ill. 2d 314, 331 (1994).

Defendant initially argues that "Lange's testimony and all the factors surrounding histestimony should have been considered by the jury to determined [sic] whether he and he alonepossessed the drugs that were involved in this case or whether he along with Gary Bohn possessedthe drugs." We disagree.

While a defendant has the right to present a defense, a trial court has broad discretion inruling on evidence sought to be excluded as irrelevant. People v. Hayes, 353 Ill. App. 3d 578, 583(2004). In assessing a trial court's exercise of such discretion, this court must determine whether theproffered testimony would have made the question of the defendant's guilt of the charged offensemore or less probable. Hayes, 353 Ill. App. 3d at 583.

Here, the jury heard Lange's contradictory testimony about the ownership of the drugs--hestated both that they belonged to him and that they belonged to Tia Jordan. However, whether Langeor Jordan was ever charged with possession of the drugs does not make the question of defendant'sguilt more or less probable. Possession of the drugs by Lange, Jordan, or both would not rule outpossession by defendant, as possession may be joint. See People v. Schmalz, 194 Ill. 2d 75, 82(2000) ("if two or more persons share immediate and exclusive control or share the intention andpower to exercise control, then each has possession"). Whether the State believed Lange's testimonyto the extent that it decided to charge him with possession of the same drugs would not make thequestion of defendant's guilt more or less probable. The determinations of the weight to be givento a witness's testimony, his credibility, and the reasonable inferences to be drawn from the evidenceare the responsibility of the fact finder. People v. Moser, 356 Ill. App. 3d 900, 910 (2005). Evenif the State did believe Lange, it is the jury's determination of credibility, not that of the State, thatis paramount.

Furthermore, evidence of arrest does not possess the indicia of reliability required foradmission as evidence. For impeachment purposes, evidence of arrests, indictments, charges, or theactual commission of a crime is not admissible; only actual convictions may be used. Moser, 356Ill. App. 3d at 912-13. The arrest of another has no more relevance to a defendant's innocence thanhis indictment has to a defendant's guilt. People v. Tillman, 116 Ill. App. 2d 24, 38-39 (1969). Evidence of Lange's arrest, whether it occurred when the house was searched in 2002 or during trialin 2004, was neither reliable nor relevant to a determination of defendant's guilt.

Defendant argues that Lange's arrest is relevant "in light of the fact that the prosecution madelight of this testimony and in fact said to the Court that Chance Lange was a liar." We first note thatthe State never called Lange a "liar," a phrase often used by defendant in his brief. The State did callhim "evasive," questioned his motivation for testifying, and referred to him as "a salesman" and "adiscredited witness." Defendant is admonished to be more precise in the attribution of statementsthat are not supported by the record.

Defendant characterizes Lange's arrest as inconsistent with the State's position on Lange'scredibility. We disagree. Lange testified that the drugs belonged either to Jordan or to him but notto defendant. Again, since the drugs could have been possessed by defendant and Lange (and, forthat matter, Jordan), arresting Lange was in no way inconsistent with questioning Lange's credibility. One could consistently believe that Lange (according to his testimony) possessed the drugs withoutbelieving Lange's testimony that defendant did not possess them. Lange's admission of his owncomplicity did not necessarily negate defendant's complicity, and the State's actions in reliance onthat admission did not contradict its characterization of Lange or its prosecution of defendant. Wefind no abuse of discretion in the trial court's ruling regarding evidence of the arrest of ChanceLange.

Therefore, the judgment of the circuit court of Kane County is affirmed. Affirmed.

BOWMAN and KAPALA, JJ., concur.