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NO. 4-97-0691

November 25, 1998

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE COOK delivered the opinion of the court:

Following a jury trial, defendant was convicted of possession of a controlled substance with intent to deliver, a Class X felony. 720 ILCS 570/407(b)(1) (West 1996). Defendant was sentenced to 10 years' imprisonment and was ordered to reimburse Champaign County for public defender fees pursuant to section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1 (West 1996)). Defendant appeals, challenging the sufficiency of the evidence to sustain his conviction and imposition of the recoupment order without a hearing to determine his ability to pay. We affirm in part, vacate in part, and remand with directions.

According to the testimony of the State's witnesses, police officers Jim Rein and Mark Strzesak were on patrol in a semi-marked squad car in Champaign, Illinois, on an evening in March 1997. The officers observed a black male, whom they later identified as the defendant, walk up to a parked car and make an exchange through the passenger side window. Suspecting they had observed a drug sale, the officers approached the suspect and asked to speak with him. As they approached, the suspect fled. Rein pursued the suspect and radioed for assistance while Strzesak stayed with the squad car. Over the radio, Rein described the suspect as wearing a black and yellow starter jacket. Officers John Murphy and Scott Swan were already patrolling in the area and responded to Rein's call. They were just a few blocks south of the start of the chase when Murphy spotted the suspect crouching along the side of the house at 1112 West Eureka. Swan gave chase but lost sight of the suspect and met up with Rein. The officers quickly determined that the suspect was boxed in and began to search the immediate area. Within minutes Swan saw the suspect beneath a patio table outside 1112 West Eureka. The suspect had arranged a lawn mower and miscellaneous patio furniture around the table in an effort to conceal himself. Officers Swan and Murphy ordered the suspect to come out from beneath the table and show his hands. The suspect did not obey the officers' repeated orders and eventually the officers removed the barricade and pulled the suspect out from under the table. The suspect was placed under arrest and taken to a squad car.

When the officers examined the area they discovered a large plastic bag that contained 26 smaller baggies of rock cocaine, 9 individual baggies of rock cocaine, and $222 in cash. These items were found five to six feet from where the suspect had been hiding under the table. It was also discovered upon arrest that the suspect's jacket was blue, red and white; a Chicago Cubs jacket. Officer Rein testified that he first saw the suspect under an amber-tinted streetlight.

Defendant initially contends that the State failed to prove he was in possession of the cocaine beyond a reasonable doubt. The standard for reviewing the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Brown, 169 Ill. 2d 132, 152, 661 N.E.2d 287, 296 (1996); Jackson v. Virginia, 443 U.S. 307, 313, 61 L. Ed. 2d 560, 569, 99 S. Ct. 2781, 2785 (1979) (rejecting test whether there was any evidence to support the conviction). The fact finder's verdict will not be overturned unless its verdict is so unreasonable, improbable, and unsatisfactory as to leave a reasonable doubt as to the defendant's guilt. Brown, 169 Ill. 2d at 152, 661 N.E.2d at 296. Sometimes appellate courts mention only the first statement from Brown and emphasize the word "any." The implication is that if one person in a hundred could have seen the facts the way the trial court did, we cannot interfere, although we strongly disagree with the finding. The implication is that this court should never review a finding of fact. Those implications are not accurate. While a jury's determination of guilt is entitled to great deference, and while we will not retry the defendant when the sufficiency of the evidence is challenged, "'it is [still] our duty to set aside a conviction when the evidence raises a reasonable doubt of defendant's guilt.'" People v. Schott, 145 Ill. 2d 188, 206, 582 N.E.2d 690, 699 (1991), quoting People v. Boclair, 129 Ill. 2d 458, 474, 544 N.E.2d 715, 722 (1989).

Even in civil cases a court may reverse a jury verdict if it is against the manifest weight of the evidence, that is, when an opposite conclusion is apparent, or when the findings appear to be unreasonable, arbitrary or not based upon the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242, 665 N.E.2d 1260, 1274 (1996). Jackson held that the standard in civil cases is not sufficient protection for defendants in criminal cases, because the civil cases did not take the requirement of proof beyond a reasonable doubt into account. Jackson, 443 U.S. at 318 n.11, 61 L. Ed. 2d at 573 n.11, 99 S. Ct. at 2789 n.11; see also 11 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure