author: PRESIDING JUSTICE COCCIA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHELTON WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1197
    Opinion filed June 22, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Greg Roster and Aaron Meyers, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Michael G. Rogers, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Defendant Shelton Williams was charged by information with one count of possession with intent to deliver more than 30 grams of cocaine, a Class X felony (Ill. Rev. Stat. 1985, ch. 56^2, par. 1401(a)(2)), and with one count of possession with intent to deliver between 30 and 500 grams of cannabis (marijuana), a Class 3 felony (Ill. Rev. Stat. 1985, ch. 56V2, par. 705(d)). Following a 1988 bench trial, defendant was found guilty of both offenses. He was sentenced to concurrent terms of seven years’ imprisonment on the cocaine charge and four years’ imprisonment on the cannabis charge. He was also fined $120. On appeal, defendant asks this court to modify his convictions to reflect a reduction in the charges against him and to remand the case to the trial court for resentencing. He contends that the State proved only that he possessed 2.93 grams of cocaine (a Class 4 felony) and 88.67 grams of marijuana (also a Class 4 felony), and failed to prove his intent to deliver these substances. (See Ill. Rev. Stat. 1985, ch. 56x/2, pars. 1402(b), 704(d).) For reasons which follow, we affirm.

The record reveals that defendant was arrested at approximately 6:50 a.m. on December 12, 1986, in a second-floor apartment at 1620 South Komensky in Chicago. It is undisputed that a quantity of suspected narcotics was recovered from the kitchen of the apartment, along with an O’Haus triple-beam scale, and was inventoried and subjected to analysis by a Chicago police department chemist. It is also undisputed that defendant, who admitted police officers into the apartment through the back door, and his codefendant, Donnette Welch, had been on the premises for at least several hours prior to their arrest. Williams and Welch were tried together before the court on the same charges. No pretrial motions were filed relating to the defendant’s arrest or the suppression of any evidence seized. At the close of the State’s case, the trial judge granted Welch’s motion for a directed finding of not guilty. Williams was found guilty as charged at the close of all the evidence. After the court denied his motion for a new trial, he brought this appeal.

Chicago police officer Pete Rogers testified for the State. Rogers recalled that he and his partner, Fernando Garcia, went to a two-flat building at 1620 South Komensky on December 12, 1986, at 6:50 a.m. The officers were there in response to a call that a murder suspect was believed to be hiding on the second floor. Rogers stated that he and Garcia, dressed in uniform, walked up the back stairs to the second-floor rear entrance, where they encountered a steel door. After Rogers knocked on the door, Williams came to the door and opened it. Rogers asked defendant if he owned the apartment, and Williams stated that he did. Defendant also stated, in response to Rogers’ question, that two other persons were inside. Officer Rogers further testified that the steel door opened into a kitchen, where he observed a stove with a scale on it, and a table. On the stove, “right next to the scale,” Rogers also observed a clear bag of white powder. Next to the white powder were two bags containing crushed green plant material. He then placed defendant under arrest.

Rogers further stated that Donnette Welch came into the kitchen from the living room at the front end of the apartment. Her arms were stretched out in front of her as she walked toward the stove. Rogers testified that Welch twice ignored his orders to stop and continued until she was about two feet from the stove. At this point, Rogers placed Welch under arrest. A third person, found sleeping fully clothed in the bedroom, was also arrested.

Officer Rogers further described the apartment where the suspect substances were seized. He stated that both the rear and front doors were steel doors. The front door was also barred. All of the glass windows in the apartment were painted black. In a utility closet, Rogers observed a round hole, about a foot in diameter, through which one could see the first-floor apartment below. He also testified that the second-floor apartment was sparsely furnished, with only the stove and a table in the kitchen, a one-piece sofa and a television in the front room, and a cot in the bedroom. There was no refrigerator and no clothing in any of the closets. There were also no papers or documents indicating who resided in the apartment.

On cross-examination, Rogers explained that when he and Officer Garcia knocked on the back door of the apartment, other police officers were stationed outside the front door. Rogers acknowledged that he had no arrest warrant and that the murder suspect had been described only as a black male. After knocking once, defendant came to the door and asked who was there. Rogers responded that it was the police. Williams immediately opened the door and asked what the officers wanted. When Rogers explained that they were looking for a murder suspect, defendant responded that he was not that person. Rogers further stated that this conversation took place while the officers were on the back porch and defendant was standing in the door. The witness could not recall if he had his revolver drawn at the time. He stated that defendant had nothing in his hands.

Officer Rogers also described the suspect materials, which he stated were about five feet away from where he was standing when Williams invited the officers inside. The packages he observed were “rolled up *** like a ball” on the stove. After bringing the other man from the bedroom into the kitchen, Rogers approached the packages and examined them more closely. He testified that there were two items which appeared to be marijuana sticks, about “five inches around,” and about five to six inches long, wrapped in plastic bags. Next to the sticks were two clear plastic bags of white powder which appeared to be cocaine, each containing numerous smaller packages. He further stated that all of this material was in plain view on the stove. Rogers acknowledged that he did not see Williams deliver any controlled substances at any time while he was on the premises. He further testified that defendant gave Rogers the three keys needed to unlock the front door of the apartment from the inside. Defendant retrieved the keys from his pants pocket after Rogers asked for them. Rogers stated that he used the keys to open the front steel door and the burglar gates on the inside and outside of that door in order to admit the other police officers to the apartment. Rogers further testified that Williams told him that he lived at 1606 South St. Louis, but also said that he had many addresses. The defendant told Rogers that the apartment was “his place.” On redirect examination, Rogers testified that in his “police report” for the case, he listed 1620 South Komensky as defendant's address. However, on re-cross-examination, Rogers acknowledged that in his “arrest report,” he listed 1606 South St. Louis as defendant’s address.

Philip Somerville, a Chicago police department chemist, testified by stipulation that he performed a series of chemical analyses and observations upon the. crushed green plants and white powder confiscated by Officer Rogers. The two plastic bags containing the plant material were weighed and were found to weigh 88.67 grams. Somerville’s opinion, after performing the tests and analyses on the crushed green plant material, was that the material was in fact cannabis. The white powder was received by Somerville in two plastic bags, each containing 50 plastic packets of white powder, and an additional two plastic packets, for a total of 102 packets. All of the powder was weighed and was found to weigh, in total, 48.7 grams. Somerville’s opinion, after performing a series of chemical analyses on the white powder, was that the white powder was in fact cocaine.

Defendant testified in his own defense. He stated that he and Welch had come to the apartment at about 3:30 a.m. or 4 a.m., from a party. They had driven there in a friend’s station wagon, which they had parked on the street. Defendant stated that he knew that Keith Robinson lived in the apartment, and asked a man who came to the front door of the building if Robinson was there. The man told defendant that Robinson had just left, but that defendant could wait for him. Then someone let defendant and Welch into the second-floor apartment, where they waited in the living room, which was next to the front door, for about 30 minutes. At this point, defendant left the building and went out to the station wagon, but was unable to start it, although he worked with the cables and starter for a short time. He then returned to the apartment, where he was watching television with Welch in the front room when the police officers came to the back door. Williams further testified that he was wearing only a shirt and shorts when the police arrived. He explained that he had left his pants in the bathroom, where he had cleaned some mud from them after working on the car.

Defendant’s account of the police officers’ actions differed substantially from that of Rogers. He testified that Rogers “pulled a gun” on him when he opened the back door, held the gun in his face, and told him to “get back.” After defendant told the “three or four” officers at the back door that there were two other persons in the apartment, the officers brought the man in the bedroom into the kitchen. Meanwhile, other officers came in the front door and brought Welch from the front room into the kitchen. The defendant stated that he did not know how these officers got in the front door. He further testified that once all three persons were “lined up” in the kitchen, the police announced that they were going to search the house for a gun. One of the officers also reached up to the top of the “high” microwave-equipped stove and retrieved the scale. Defendant stated that he never saw the crushed green plants in the kitchen at any time, and saw the scale and cocaine packages for the first time when the officers brought them over to him in the kitchen and asked if he knew whose they were. Defendant replied that he did not know whose they were and that he had just come to the apartment from a party. He further stated that he also told the officers that the apartment was not his. He testified that he had a picture ID, with an address, on his person at the time. He also stated that he had gone nowhere in the apartment but the living room and bathroom before the police arrived. He was also unaware of any hole in the floor. With regard to house keys, he explained that he had no keys to the front door of the building. He stated that Annette Nelson, his brother’s girl friend, who lived on the first floor, had opened that door for him. He described the door to the second-floor apartment as a brown wooden door without burglar bars, and the windows as being covered with dark brown plastic. According to defendant, the apartment had a sofa comprised of “four or five sectional pieces” and had both lights and heat.

On cross-examination, defendant explained that a man known as “Glen,” who was an acquaintance of Keith Robinson, had let him into the second-floor apartment. He stated that he had been in the first-floor apartment many times, but had been on the second floor only a few times. Robinson had told defendant to meet him there so that defendant could return the station wagon, which was Robinson’s. Defendant stated that Robinson was supposed to drive him “home.” He further testified that his real address at the time of his arrest was 1606 South St. Louis, which he described as being 20 or 30 blocks from Komensky Street. He also stated that the man in the second-floor apartment was at the first-floor door when he returned from working on the car and had opened the door for him. When the police started “banging” on the back door, he was in the bathroom, cleaning the mud from his pants. He recalled that the police found “the cocaine” in the kitchen, while he was present, but he did not know where in the apartment they found the “marijuana.” He acknowledged that he had seen cocaine before, but had “no idea” that these substances were in the apartment, because he had not searched it.

Following Williams’ testimony, the defense rested. It was stipulated, in rebuttal, that in the City of Chicago, “Komensky Street is located at 4032 west and St. Louis Avenue is located at 3500 west,” representing a distance of about five blocks. After hearing closing arguments, the trial judge found that defendant had control over the apartment and took acts consistent therewith. He further found that the defendant’s testimony “d[id] not ring true.” A judgment of guilty was entered against defendant on both counts.

Opinion

In the interest of clarity, we will briefly summarize the procedural context of this appeal. On December 12, 1989, while his opening brief was still in preparation, defendant filed with this court a motion to supplement the record on appeal, pursuant to Supreme Court Rule 329, with “the laboratory report which formed the basis of the stipulated testimony of chemist Philip Somerville.” (107 Ill. 2d R. 329.) Defendant’s motion was allowed. This report, accompanied by an affidavit of defense counsel, comprises what we will refer to as the “supplemental record” on appeal. The report is a one-page document headed “Laboratory Report, Crime Laboratory Division/Chicago Police.” It is dated December 16, 1986, and includes Philip Somerville’s signature. The report, by all appearances and as stated in the sworn affidavit of defendant’s trial counsel, relates to the substances recovered from the second-floor apartment at 1620 South Komensky on December 12, 1986, by Officer Rogers. Although the exact meaning of certain reporting codes is unclear, the report would appear to indicate that the two plastic bags containing crushed green plant material and weighing a total of 88.67 grams were tested and that the results confirmed that the plant material was cannabis.

The report would also appear to indicate that six packets of white powder, weighing 2.93 grams, out of a total of 102 packets, weighing 48.7 grams, were tested, and that the results were positive for cocaine. The laboratory report does not specify which “chemical [and/or] microscopic identity tests” were performed on these packets. Nor does it specify which six packets, out of the two 50-packet plastic bags and two additional packets, were subjected to analysis. It is undisputed that the laboratory report comprises no part of the trial record óf this case, either as an exhibit offered or received into evidence, or as a document used or referred to for any purpose whatsoever by either party or by the court.

In his opening brief, defendant contended that his cocaine conviction must be modified, based on the police laboratory report in the supplemental record. He maintained that because the chemist actually-tested only six packets of white powder containing only 2.93 grams, the State did not prove beyond a reasonable doubt that the entire 48.7 grams of white powder confiscated was in fact cocaine. In its responsive brief, the State argued that Williams, who neither raised a trial objection to the stipulated testimony regarding the amount of cocaine tested, nor raised the issue in his motion for a new trial, has effectively waived the issue on appeal. Defendant, in his reply brief, argued that the State has not denied the accuracy of the report and that, furthermore, this court could consider the issue raised by the report in the context of ineffective assistance of counsel or, alternatively, as plain error, even if defendant has technically waived it. The State subsequently filed a motion to strike the supplemental record, asserting that it does not fall within the purview of Supreme Court Rule 329 (107 Ill. 2d R. 329). The State’s motion was taken with the case. During oral argument, counsel for both parties acknowledged that the laboratory report was tendered to the defendant during the pretrial discovery process and was in possession of both parties at the start of trial. Following oral argument, the State filed a motion to strike the portion of defendant’s reply brief which suggested that either ineffective assistance of counsel or plain error would suffice to bring the issue before this court. The State’s motion cites as authority Supreme Court Rule 341(e)(7), which provides that points not raised in an appellant’s initial brief “are waived and shall not be raised in the reply brief.” (107 Ill. 2d R. 341(e)(7).) This motion was also taken with the case.

Supreme Court Rule 329, upon which defendant relies, provides that where “the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant” and, “[i]f necessary, a supplemental record may be certified and transmitted.” (107 Ill. 2d R. 329.) Defendant contends that authority for considering the laboratory report in deciding the issues raised on appeal is to be found in People v. Guest (1986), 115 Ill. 2d 72, 503 N.E.2d 255. In Guest, the Illinois Supreme Court reviewed the defendant’s convictions and sentences for murder, attempted murder, and unlawful use of weapons. The trial court had sentenced Guest to prison terms for the less serious charges, which were to run consecutively to prison terms imposed for other crimes by the States of Missouri, Tennessee, and California. It had also imposed the death penalty for the murder. After upholding his Illinois convictions and his death sentence, the court addressed two motions filed by defendant. The first was a request to supplement the record with a copy of Guest’s “Agreement on Detainers” with the State of Illinois, and a copy of his “Agreement on Detainers” with the State of California. In his second motion, the defendant requested that he be allowed to supplement the record with copies of his “Request for Disposition of Indictments in Illinois and California, and copies of Acceptance by those jurisdictions, obtained from Missouri State Penitentiary officials.” Guest maintained that under the terms of these agreements, he should have been returned to Missouri after imposition of sentence in Illinois so that he could complete his Missouri prison term and that failure to comply violated his due process and equal protection rights. (Guest, 115 Ill. 2d at 113, 503 N.E.2d at 274.) The State objected to these motions, contending that they should be denied because defendant failed to demonstrate that these documents were part of the trial proceedings, and because they were extrinsic to matters raised on appeal. The court concluded that it was unnecessary for Guest to demonstrate that the agreements were part of the trial proceedings because the documents were “pertinent to an issue the defendant ha[d] raised both in the trial court and on appeal,” and because they would “aid [the court] in [its] disposition of th[e] issue.” (Guest, 115 Ill. 2d at 114, 503 N.E.2d at 274.) The court then allowed defendant’s motions to supplement the record, examined the documents in question, and concluded that it had grave doubts whether provisions directing return of the prisoner to the sending State were intended to apply to a situation where the death penalty had been imposed by the receiving State. It further directed the Illinois Attorney General to communicate with Missouri and California authorities to “ascertain if those States wishfed] to waive or enforce whatever rights they may have to the penal custody of the defendant.” Guest, 115 Ill. 2d at 115, 503 N.E.2d at 275.

We are not persuaded that Guest is controlling authority for taking into consideration the police laboratory report in our review of the issues raised on appeal in this case. Guest can be readily distinguished in two important respects. First, the reviewing court specifically noted that the documents in question were pertinent to an issue that had been raised in the trial court as well as on appeal. In the instant case, no issue was ever raised at trial as to the amount of cocaine tested or the amount weighed. Moreover, the context in which the “supplemental documents” were considered in Guest differs significantly from the context in which the report would be considered here. In Guest, the court was presented with a situation where it had upheld a defendant’s death sentence and would, in the usual course, be expected to either set a date for his execution or stay that execution for stated reasons. There were, however, agreements in force, involving foreign jurisdictions, which directed the return of the defendant to serve out prison terms in those jurisdictions. These documents could not be ignored and were essential to the procedural disposition of the case. Here, the laboratory report has been submitted in support of issues going directly to the guilt or innocence of defendant, i.e., to whether he was proved guilty beyond a reasonable doubt of specific charges and whether the sentences imposed must be reduced.

While Guest is distinguishable, we find the reasoning of this court in People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408, cited by the State, to be controlling. The defendants in Carroll, appealing their rape convictions, contended that they were penalized for electing a jury trial because their codefendants, who pleaded guilty, received lighter sentences. This court granted leave for defendants to file a supplemental record consisting of certified copies of the codefendants’ indictments and transcript pages from the circuit court proceedings involving the codefendants. The State then filed a motion to strike the supplemental record, asserting that none of the documents were made part of the record before the trial judge and that the additional material was improper and irrelevant. As in Guest, the defendants relied upon Supreme Court Rule 329. Concluding that the supplemental record must be stricken, this court stated:

“In our opinion, [Supreme Court Rule 329] applies to supplementation of the record before this court with additional portions of the record which were before the trial court. To hold otherwise would transmute the rule into an authorization for trial de novo in the reviewing court.” (Emphasis added.) (Carroll, 49 Ill. App. 3d at 396, 364 N.E.2d at 415.)

We likewise believe that our consideration of the police laboratory report, for the first time on appellate review of defendant’s case, would amount to a trial de novo on an essential element of the charges relating to the cocaine. We further note that defendant was in possession of this document in ample time to place it in- evidence before the trier of fact, but chose not to do so. We therefore grant the State’s motion to strike the supplemental record. Accordingly, we will also grant the State’s motion to strike that part of defendant’s reply brief which suggests that we consider the supplemental record either in the context of an ineffective assistance of counsel claim, or as plain error. The State correctly observes that the supreme court rule it cites in support of this motion has been applied to strike, as waived, a constitutional issue raised for the first time in a reply brief. (107 Ill. 2d R. 341(e)(7); In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 567-68, 524 N.E.2d 538, 544.) Moreover, irrespective of the State’s waiver argument, in light of the fact that we have stricken the laboratory report, defendant’s contention that issues raised by that report should be considered on plain error or other grounds is no longer germane. We thus proceed to address the merits of the questions presented, looking solely to the trial court record.

The evidence before the circuit court, as trier of fact, consisted of Officer Rogers’ testimony, the stipulated testimony of police chemist Somerville, and defendant’s testimony. As a reviewing court, we must examine that evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472.) Where inconsistencies and conflicts exist in the evidence, the trier of fact has the responsibility of weighing the credibility of the witnesses and resolving these conflicts and inconsistencies. (People v. Green (1988), 179 Ill. App. 3d 1, 17, 535 N.E.2d 413, 423.) In a bench trial, this responsibility rests with the trial court, and the reviewing court will not substitute its judgment for that of the trier of fact where the evidence is merely conflicting. People v. Daniels (1984), 129 Ill. App. 3d 894, 898, 473 N.E.2d 517, 520-21.

We first consider the evidence concerning the nature and weight of the materials recovered from the apartment. The parties stipulated “as to [Philip] Somerville’s qualifications and expertise in the field of chemistry and forensic chemistry.” They also stipulated that the plant material and white powder confiscated by Rogers were “inventoried by him under No. 360032 and sent down to the Chicago Police Department crime lab for analysis.” Rogers had earlier testified to inventorying the materials under that number and had identified in open court the evidence envelope that he had signed and sealed, and the substances contained therein. The parties further stipulated to the testimony of Philip Somerville that “[o]n January the 27th, 1987, he had occasion to perform a series of chemical analyses and observations upon the items which were confiscated by Officer Rogers in this case.” Somerville further testified that he weighed the “two plastic bags containing crush[ed] green plant material” and “found that they weighed 88.67 grams.” It was further stipulated that “in his opinion after performing the tests and analyses on them that *** the crush[ed] green plant was in fact cannabis.” With regard to the “two plastic bags each containing fifty plastic packets of white powder plus two additional plastic packages of white powder, a total of one hundred and two packets,” Somerville’s testimony was that “he weighed all the white powder and found that it weighed in total 48.7 grams.” He also “performed a series of chemical analyses on the white powder and found that it was in fact cocaine.”

Whether an entire substance contains a controlled substance is a question of fact. (People v. Yosell (1977), 53 Ill. App. 3d 289, 293, 368 N.E.2d 735, 738.) In the instant case, the trial court found that the entire 48.7 grams of white powdery substance were in fact cocaine, based on the stipulated testimony of an expert that he performed a series of chemical analyses and observations on “the white powder,” which was contained in 102 plastic packets, and that “all the white powder,” having been weighed, weighed 48.7 grams. Defendant correctly states that where there is a lesser included offense for possessing a smaller amount of a controlled substance, the weight of the substance containing a drug is an essential element of a possession charge, and that the “weight of the substance containing the drug must therefore be proved beyond a reasonable doubt.” (Emphasis added.) (People v. Hill (1988), 169 Ill. App. 3d 901, 911, 524 N.E.2d 604, 611.) The law in Illinois is that a chemist need only test random samples in order to be qualified to render an opinion as to the makeup of the entire substance before him; however, this rule of reason and practicality is not without limitation. (People v. Kaludis (1986), 146 Ill. App. 3d 888, 894, 497 N.E.2d 360, 364.) Illinois appellate decisions, including those of this court, have held that where separate bags or containers of suspected drugs are seized, a sample from each bag or container must be conclusively tested to prove that it contains a controlled substance. (See Hill, 169 Ill. App. 3d at 911, 524 N.E.2d at 611 (and cases cited therein).) Defendants’ convictions have been reduced where experts have testified that they subjected fewer than all of the bags or containers weighed to a reliable and conclusive test for the presence of a particular substance. See, e.g., People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127 (conviction reduced where expert subjected contents of only one bag, out of two, to spectrophotometer test for heroin, but testified that, in his opinion, both bags contained heroin); People v. Games (1981), 94 Ill. App. 3d 130, 418 N.E.2d 520 (where expert testified that her chemical analysis included tests on a portion of the contents of one bag, out of two bags suspected of containing cannabis, and then stated that the “material tested” contained cannabis, but expressed no opinion as to the whole, except for its weight, defendant’s conviction reduced, based on contents of the one bag chemically tested); and People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604 (where expert testified that conclusive test was performed on only 21.93 grams of suspect powder, State did not prove beyond reasonable doubt that over 30 grams of the seized substance in fact contained cocaine).

The question here is whether the State presented sufficient evidence proving beyond a reasonable doubt that all of the white powdery substance recovered by Officer Rogers contained cocaine and that its total weight was 30 or more grams. We observe, initially, that Somerville did not testify to having analyzed some part of the white powder, or to having tested some or all of the packets in only one of the two bags. His testimony was that he tested “the white powder,” which he had described as consisting of “a total of 102 packets.” Moreover, in the context of the entire record, it is apparent that the intention of the agreement between the parties could only have been to stipulate to undisputed and unrebutted expert testimony that the entire amount of the green plant material confiscated (ie., 88.67 grams) was in fact cannabis and that the entire amount of the white powder confiscated (i.e., 48.7 grams) was in fact cocaine. In effect, the result of the parties’ agreement to present the chemist’s testimony by stipulation, in such a brief and summary fashion, was essentially to remove from the case any issue of the expert’s qualifications, the chain of custody, or the weight and chemical composition of the suspect materials.

Defendant contends that the parties only agreed that “if called to testify” Somerville would have stated what was read into the record, and that those statements, standing alone, would not suffice to prove him guilty of possessing a Class X amount of cocaine under the standard enunciated in Hill and other cases. However, in light of the entire record, we decline to subject Somerville’s statement that “the white powder” was in fact cocaine, to further scrutiny. First, we do not believe that the State reasonably would have agreed to Somerville’s stipulated testimony, thereby foregoing the opportunity to place the chemist on the witness stand, where he could have described in detail the number and type of tests performed on individual packets, were not the stipulation intended, in part, to eliminate the need for defending his testimony against a challenge to its sufficiency. Furthermore, we can only assume that defendant’s trial counsel, having received notice during discovery, prior to trial, that Somerville was a potential State’s witness, and having also received a copy of the laboratory report, decided to forego the opportunity to cross-examine the expert and to submit the report into evidence, in order to focus on other theories and aspects of the defense. Throughout the course of the trial, no question was raised concerning the evidence presented by Somerville or its sufficiency to support any element of the charged offenses. Nor did the defense offer any additional testimony or evidence to contradict Somerville’s statements. In his argument for a directed finding of not guilty at the close of State’s evidence, and in his closing argument, defense counsel focused almost entirely on the issue of Williams’ constructive possession of the drugs. Defendant’s written motion for a new trial, while containing the boilerplate language that the prosecution failed to prove his guilt beyond a reasonable doubt and to prove every material allegation in the indictment beyond a reasonable doubt, addressed with specificity only the constructive possession issue. Outside of Somerville’s stipulated testimony, the weight and composition of the drugs are nowhere discussed. For all of the above reasons, regardless of whether the issue may be considered waived on appeal, it is meritless in light of the record. We hold that the State presented evidence sufficient for a rational trier of fact to conclude that defendant possessed a Class X amount of cocaine beyond a reasonable doubt.

Defendant next contends that his cocaine and marijuana convictions must be modified because there was insufficient proof of an intent to deliver these drugs. Considering all of the evidence in the light most favorable to the prosecution, we must disagree. Defendant was convicted of knowing possession with intent to deliver more than 30 grams but not more than 500 grams of a substance containing cannabis, and with knowing possession with intent to deliver 30 or more grams of a substance containing cocaine. The first two elements, knowledge and possession, were addressed by the trial judge. He pointed to testimony that defendant had stated that the apartment was his. He further noted that, while the apartment was not the sort where people would live on an ongoing basis, controlled substances were kept there. The trial court also based its guilty finding on testimony that Williams had a house key to this apartment and that he opened the door, stating that both facts were consistent with defendant’s control of the premises.

The governing principles relating to possession and knowledge have been well summarized by this court as follows:

“Proof of the crime of unlawful possession of controlled substances requires that the State establish that the accused had knowledge of the presence of the narcotics and that the narcotics were within his immediate and exclusive control. [Citations.] Because knowledge is seldom susceptible of direct proof, it may be proved by evidence of acts, declarations, or conduct from which it is reasonable to infer that the accused knew of the existence of the narcotics at the place they were found. [Citation.] Moreover, actual physical possession need not be demonstrated in order to sustain such conviction if constructive possession can be inferred from the facts. [Citations.] Constructive possession has been defined as ‘that which exists without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion.’ [Citation.]” (People v. Stamps (1982), 108 Ill. App. 3d 280, 291-92, 438 N.E.2d 1282, 1292-93.)

In defendant’s case, the elements of knowledge and possession were sufficiently established by the testimony of Officer Rogers. Rogers stated that defendant, upon request, retrieved from his pants pocket working keys to the front steel door and burglar gates of a sparsely furnished apartment, with blackened windows, which had a hole in its utility closet through which the first-floor apartment was visible. Rogers twice testified that defendant told him that the second-floor apartment was “his” or “his place.” Police officers first encountered defendant in the kitchen of this apartment, where a large plastic bag, containing 102 individually wrapped packets of cocaine, was found in plain view on a stove, along with two wrapped marijuana sticks, both of which were “right next to” an O’Haus triple-beam scale. Williams testified that, while he recognized these materials as cocaine and marijuana when police brought them to his attention, because he knew what these drugs looked like, he had not previously known of their presence because he had not searched the apartment, where he was merely waiting for a friend. He further stated that he did not open the front door for the other officers, and did not know how they gained entry to the apartment. However, the trier of fact was not required to accept defendant’s account, and it was the province of the trial judge to determine the witnesses’ credibility. The court resolved the inconsistency between Rogers’ testimony and that of defendant in favor of the police officer.

Furthermore, with regard to the element of intent, the quantity of cocaine alone, prepackaged in 102 separate packets and sitting next to the scale, was circumstantial evidence from which the trier of fact could properly conclude that it was not intended for personal use but was possessed with intent to deliver. (See People v. Tovar (1988), 169 Ill. App. 3d 986, 994, 523 N.E.2d 1178, 1183; People v. Stamps (1982), 108 Ill. App. 3d 280, 295, 438 N.E.2d 1282, 1295.) The blackened windows, the lack of significant furnishings and a refrigerator, and the hole in the closet floor were also circumstantial evidence that the drugs were not present solely for the personal use of the three individuals found on the premises. While the amount of marijuana recovered may have been closer to an amount conceivably kept by three persons for their own personal use, its proximity to the large quantity of cocaine and the scale also raises a reasonable inference that it was in defendant’s possession with intent to deliver. We acknowledge that had other factors, such as large quantities of cash, or weapons, been found on the premises, they might have added to the weight of the State’s evidence. (See, e.g., People v. Trask (1988), 167 Ill. App. 3d 694, 521 N.E.2d 1222.) However, the absence of such additional factors does not mean that the State has not met its burden of proof. We therefore find that the State presented sufficient, if not overwhelming, evidence of defendant’s guilt on the charges of possession with intent to deliver the two drugs, and that a rational trier of fact could have found him guilty of these charges beyond a reasonable doubt.

In light of the foregoing, we will not disturb the trial court’s judgment in this case. Notwithstanding, we wish to point out that defendant’s claimed error relating to the stipulated testimony of the chemist, based on a document not in evidence in the trial record, may be more amenable to review in the context of a post-conviction petition, although it could not be addressed on direct review. (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.; see Perry v. Fairman (7th Cir. 1983), 702 F.2d 119; People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973; and People v. Jones (1988), 168 Ill. App. 3d 925, 522 N.E.2d 1325.) We of course offer no opinion as to the likelihood of defendant’s success on any claim in other proceedings. For the above-stated reasons, based on the record before us, we affirm defendant’s convictions and sentences entered by the circuit court of Cook County.

Affirmed.

LORENZ and MURRAY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff-Appellant, v. CROSS CITY DISPOSAL, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—0319
    Opinion filed June 22, 1990.
    Rehearing denied July 25, 1990.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellant.
    Janette C. Wilson, of Wilson, Howard P.C., of Chicago, for appellee Cross City Disposal, Inc.
   JUSTICE MURRAY

delivered the opinion of the court:

The City of Chicago (City), plaintiff, appeals from an order of a trial court reducing the City’s request for reimbursement costs of $635,603.18 to $295,789.73 in a nuisance abatement case.

The facts are as follows.

Defendant Henry Smith (Smith) operated a transfer dumping station known as Cross City Disposal, Inc. (Cross City), located at 8159 South Wallace in Chicago. A transfer dumping station is a dump that serves as a holding point for refuse that is later moved to a permanent dump. In May and June of 1987, inspectors from the City observed accumulations of garbage, debris, building materials and decaying food at the site. The inspectors also observed the existence of numerous rat colonies as well as rats measuring approximately 12 to 14 inches in length. As a result on June 11, 1987, the City filed a complaint for equitable and other relief against Smith and Cross City for operating an unauthorized dump in violation of the Municipal Code of Chicago. (Chicago Municipal Code, ch. 17, §§6.2, 6 — 3(b); ch. 99, §§4, 4.1, 4.5 (1983, as amended).) The City sought injunctive relief and an order allowing the City to abate the nuisance, with the entire cost of the abatement charged to Smith. The City also sought fines of $200 per day until the illegal use of the property ceased. Chicago Municipal Code ch. 194A, §11.13 (1988).

A temporary restraining order was issued effective June 12, 1987. The order prohibited further dumping on the site. It also ordered Smith to bear the cost of abatement. On June 26, 1987, the restraining order was modified to include property adjacent to 8159 South Wallace. On June 29, 1987, the trial court converted the temporary restraining order to a preliminary injunction and imposed a fine of $200 per day accruing until the nuisance was abated.

On September 11, 1987, the City filed its verified petition to recover the cost of abating the nuisance. The verified petition set forth costs amounting to $662,943.15. On various dates between February 2, 1988, and May 27, 1988, the trial court heard testimony in support of and in opposition to the City’s verified petition for costs. At the conclusion of the hearing the City reduced its requested petition for costs from $662,943.15 to $635,603.18.

On June 29, 1988, the trial court entered an order continuing its preliminary injunction prohibiting operation of a transfer station and all dumping at the subject properties. In addition the trial court’s order assessed the cost of the abatement to Smith in the amount of $295,789.73. The court also imposed a fine of $3,800 against Smith, said amount representing a fine at the rate of $200 per day for each day between the periods of June 29 and July 17 that the garbage and debris had not been removed.

The City filed a motion to reconsider and an amendment thereto. On December 22, 1988, the trial court entered its final order permanently enjoining all dumping on the subject property but refusing to change its previous order to reimburse the City its full cost of reimbursement.

On January 20, 1989, the City filed a notice of appeal appealing from that portion of the order relating to the ordered reimbursement. On appeal the City argues that the trial court erred when it reduced the cost of abatement from $635,603.18 to $295,789.73. The City seeks a reversal of the trial court’s order and remandment with instructions to enter an order awarding the City $635,603.18 in reimbursable costs.

We agree and reverse and remand with instructions.

The court is first met with a reserved ruling on motions to strike portions of Smith’s appellate briefs.

On appeal, Smith, in addition to questioning the award of the cost of abatement, raises errors unrelated to the amount of the award including the issue of ownership and control of the property and the propriety of granting judicial relief. The City moved to strike those portions of Smith’s brief.

We agree with the City and grant the City’s motion.

A review of the record discloses that Cross City Disposal and Smith filed a notice of appeal on August 16, 1988, from the trial court’s judgment of July 29, 1988. The record also discloses that a notice of appeal was filed on July 15, 1987, from orders entered by the trial court on June 12, June 22, June 25, June 29, July 2 and July 9 all in 1987. The July 15, 1987, appeal never was pursued by Cross City Disposal.

Smith and Cross City’s appeal of August 16, 1988, was filed under appellate court No. 1 — 88—2373. A docketing statement was also filed on August 16, 1988. The record on appeal was due on October 10, 1988, but never filed. On March 7, 1989, this court dismissed the appeal in case No. 1 — 88—2373 for want of prosecution. Additionally, it appears that Smith and Cross City’s appeal (No. 1 — 88—2373) was assigned to the first division of this court rather than this division and that the first division entered the March 7, 1989, order. On May 25, 1989, the mandate in appeal No. 1 — 88—2373 was issued. It does not appear that Smith or Cross City has ever filed a cross appeal in this appeal (case No. 1 — 89—0319), nor have the defendants moved to consolidate the two appeals.

Since any jurisdiction in this court with respect to the appeal filed by Smith and Cross City terminated on May 25, 1989, with the issuance of mandate, the court must sustain the City’s motion and strike all portions of plaintiff’s brief that refer to matters other than the correctness or error of the award in favor of the City in the amount of $295,789.73 as opposed to the request of the City for an award of $635,306.18.

Whether Cross City Disposal, Inc., is even in existence is a factual question unanswered by the parties. The record reflects that Cross City Disposal, Inc., was dissolved by the Secretary of State on December 1, 1977, for failure to pay franchise tax. The record further reflects that the December 22, 1988, order appealed from entered judgment solely against Smith and not Cross City.

The City of Chicago is a home rule unit. By virtue of the provisions of section 6(a) of article VII of the Illinois Constitution of 1970 the City may

“exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.” (Ill. Const. 1970, art. VII, §6(a).)

The City did exercise such power with respect to abatement of nuisances by providing in part:

“[T]he expense of such abatement shall be collected from the person who may have created, continued, or suffered the nuisance to exist, in addition to any penalty or fine ***.” Chicago Municipal Code ch. 99, §99 — 1 (1983, as amended Dec. 18, 1986.)

Also, the City’s zoning ordinance provides:

“A person who violates, disobeys, omits, neglects or refuses to comply with or resists the enforcement of any of the provisions of this comprehensive amendment shall be fined not less than 50 dollars nor more than 200 dollars each day, such a violation or failure to comply is permitted to exist after notification shall constitute a separate offense.” Chicago Municipal Code ch. 194A, §11.13 (1988).

The defendant argues that he is not the owner of the property upon which the nuisance existed and therefore should not be liable. However, the Municipal Code specifies that “the expense of such abatement shall be collected from the person who may have created, continued, or suffered the nuisance to exist.” (Chicago Municipal Code ch. 99, §99 — 1 (1983, as amended Dec. 18, 1986).) The Municipal Code of the City of Chicago specifically makes no mention of ownership as a prerequisite to liability for the expense of abating a nuisance.

The issue of the question of a nuisance or violation of the zoning ordinance is not before this court in this appeal. The only issue currently before the court is whether the trial judge properly reduced the City’s verified computation of the expenses of abatement of the nuisance from $635,603.18 to $295,789.73. In reducing the reimbursement amount, the trial court stated “certain budgetary items contained in the city’s figures were going to go on irrespective of removal operations and there were certain costs relating to staff that would be there whether or not you had this situation or not.” The court also reduced the City’s reimbursable costs by an unspecified amount because of the possibility that some refuse from other parts of the City might have been included with some refuse from other parts of the defendant’s property and hauled to a permanent landfill. However, the record reflects that only $3,888 of the total could be charged to commingling. The City’s documentation of the cost of abatement was:

Bureau of Street Operations $197,195.75

Bureau of Sanitation $292,948.00

Bureau of Rodent Control $105,878.55

Bureau of Forestry $2,760.00

Bureau of Streets $2,233.00

Department of Sewers $2,000.00

Department of Consumer Services $28,751.85

Department of Inspectional Services $62.33

Chicago Fire Department $9,418.00

Chicago Police Department $11,695.56

$662,943.15

The City voluntarily reduced the requested reimbursement amount from $662,943.15 to $635,603.18.

The trial court’s order does not specify how the court ultimately calculated the final reimbursement figure of $295,789.73. The trial court failed to cite any statutory or case law in support of its decision to reduce the reimbursement amount. The defendant also failed to cite any authority for his position. A point raised but not argued or supported by citation to relevant authority fails to satisfy the requirements of Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)) and is therefore waived. (Brown v. Tenney (1988), 125 Ill. 2d 348, 362, 532 N.E.2d 230, 236.) Defendant presents no argument other than conclusory statements in support of his contention that the costs of abatement were excessive. Furthermore, this court has failed to find any relevant statutory or case law to support the decision of the trial court.

The primary rule in construing statutes and ordinances is to ascertain and give effect to the intention of the legislative body. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 5, 424 N.E.2d 1239, 1242; Levitt Homes, Inc. v. Old Farm Homeowner’s Association (1982), 111 Ill. App. 3d 300, 311, 444 N.E.2d 194, 201.) This is done by concentrating on the terminology, its goals and purposes, and the natural import of the words used in common general structure of the ordinance. (Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493, 500, 404 N.E.2d 228, 232; Levitt Homes, Inc. v. Old Farm Homeowner’s Association (1982), 111 Ill. App. 3d 300, 311, 444 N.E.2d 194, 201.) The ordinance involved in this case entitles the City to recover “the expense of the abatement.” The fact that the expenses included overhead items or budgetary items or items that are necessary for the operation of government is not a reason for reducing the City’s abatement expenses either by statute, case law or otherwise. The trial court determined that the abatement of this nuisance was the responsibility of Smith. Smith did not abate the nuisance and various departments of the City of Chicago were ordered to do so. The various departments engaged in the abatement operation would of necessity have to diminish the services rendered to the residents of the City to clean up the nuisance caused by Smith.

Since there is not statutory or case law supporting the trial courts diminishment of the expense incurred by the City in cleaning up the nuisance created by Smith, we must reverse and remand with direction to enter judgment in the amount of $635,603.18 in favor of the City of Chicago.

Reversed and remanded with directions.

COCCIA, P.J., and GORDON, J., concur.


text:
    RUBEN RIOS, Plaintiff-Appellant, v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—1002
    Opinion filed June 22, 1990.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellant.
    Arnstein & Lehr, of Chicago (Louis A. Lehr, Jr., Arthur L. Klein, and Sally Y. Mengo, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Ruben Rios (Rios), appeals from a jury verdict and final judgment in favor of defendant, Navistar International Transportation Corporation (Navistar), formerly International Harvester. We affirm.

On January 17, 1979, Rios filed a strict liability action against defendant seeking damages for injuries he sustained on June 28, 1978, while operating a Series 2400B tractor that had been manufactured by Navistar and sold to his employer, Trees Unlimited. Rios claimed that the tractor was unreasonably dangerous and unsafe due to various design defects. A jury trial commenced on April 12, 1988, and the jury returned a verdict in favor of defendant. Judgment was entered on the verdict, and it is from this judgment that Rios now appeals, raising four issues: (1) whether it was error to have admitted into evidence videotapes of experiments performed by defendant, (2) whether the trial court improperly instructed the jury using two non-pattern (non-IPI) jury instructions, (3) whether it was error to have admitted into evidence reconstruction testimony through defendant’s expert witness, and (4) whether the trial court improperly struck from plaintiff’s case the claim that defendant’s tractor was defective because the step in the exit way was not slip resistant. Before we address these issues, we shall review the pertinent facts of the case and the evidence presented at trial material to the issues raised on appeal.

On June 28, 1978, Rios was an employee of Trees Unlimited, a landscaping company. On this date, under the supervision of the foreman, George Hoy, Rios assisted with the planting of trees at a residential development in Lincolnshire, Illinois. At approximately 6 p.m. Hoy and his crew finished preparing a hole for the last tree to be planted that day. Rios was then sent to obtain a tree from the storage area, which was located a few blocks from the planting site. To accomplish this, Rios operated the Series 2400B International Harvester tractor, which had recently been purchased by Trees Unlimited and which had a bucket attachment on the front that was used to transport trees to the planting site.

It should be noted that the Series 2400B tractor used by Rios was a small tractor which was designed for industrial applications such as landscaping. The transmission was designed with a separate forward/ reverse lever on the front instrument panel, a notched gear lever with four gear options (one through four), and a speed range lever with three options (low, neutral or high). The speed range lever was located in a panel on the left side of the driver seat. Typically, to place the lever in “low” the operator would pull up on the lever while depressing the clutch and to place the lever in “high” the operator would push down on the lever while depressing the clutch. Midway between low and high was the neutral position, and when the lever was in neutral, the lever extended approximately three inches into the exit way of the tractor, which was lls/4 inches wide at the bottom and 18 inches wide at the top.

Rios testified at trial through an interpreter, indicating that he climbed onto the tractor, started it and then noticed an oil leak. He kept the engine running and in first gear, but placed the range lever in neutral. He then attempted to get off the tractor to check the oil leak. As he exited the tractor, he inadvertently struck the range lever with his left side, causing it to move out of neutral position. Rios then fell from the tractor, which moved forward and rolled over his left leg and hip. Rios could remember little about the positioning of the tractor’s levers and attachments at the time of the accident, and on cross-examination he was impeached with his deposition testimony, in which he had indicated that he noticed the oil leak before he got onto the tractor.

Although Rios was the only person on the scene at the time of the accident, Hoy, who had been with the rest of the crew at the planting site, heard Rios’ screams and immediately ran to that area. Hoy later testified that when he arrived at the scene Rios was pinned under the tractor and the bucket of the tractor was stuck in the trunk of a parked car. The tractor was in first gear, and the range lever was in the “high” position. Hoy then got onto the tractor and drove it off of Rios. An ambulance was called, and Rios was taken to the hospital. On cross-examination Hoy testified that he asked Rios about the accident when he visited him in the hospital and that Rios indicated that he caught his shirttail on the range lever as he was getting off the tractor and this is what caused the lever to be moved.

Although there was some evidence presented to show that the Series 2400B tractor was unreasonably unsafe because it had no handholds and because the step up to the tractor was not slip resistant, the main thrust of the case was that the tractor’s range lever mechanism was defective because of its location, because it extended into the entranceway of the tractor, and because the range lever mechanism had no external “detent,” a device that would insure that the lever could not be accidentally knocked into gear without depressing the clutch.

Rios’ initial witness was Richard Hennesey, who had been the chief design engineer for the Series 2400 tractors. Hennesey admitted that tests he had performed showed that it was possible to cause Series 2400 tractors to move into the “low” range without depressing the clutch when the transmission was in first or second gear. However, he also testified that he did not believe that it would be possible to force the range lever into “high” without first depressing the clutch if the transmission was running in first or second gear.

Rios then presented two experts. The first expert, who was not an engineer but had a degree in safety and experience as an accident investigator, opined that the tractor was unreasonably dangerous because the range lever was not guarded by its location and because it lacked an external detent mechanism which would lock the range lever into the neutral position to keep it from being inadvertently moved into gear. However, on cross-examination this expert admitted that when he inspected the tractor, he never actually attempted to force the range lever into high range with the motor running and without depressing the clutch. The second expert, an aeronautical engineer, testified that the tractor was unreasonably unsafe because the range lever extended into an area that was already too narrow and because it did not conform to various standards promulgated by the Society of Automotive Engineers (SAE) and the American Society of Agricultural Engineers (ASAE). This expert explained that the steering wheel was 16 inches in diameter and that the operator of the tractor would have to “worm” his body past the steering wheel and the range lever to exit the vehicle. Due to these conditions, he felt that there was a duty to insure that the range lever could not be forced into gear without depressing the clutch.

Although plaintiff’s experts based their conclusions upon the assumption that it had been shown that it was possible to force the range lever into “high” when the motor was running and without depressing the clutch, the only evidence to this effect came from George Hoy, Rios’ foreman at Trees Unlimited. Hoy testified that approximately four weeks after the accident, using the same tractor that Rios had used, he attempted to force the tractor into gear without engaging the clutch. He testified that during “several hundred attempts” he was able, on one or two occasions, to cause the tractor to move into gear without depressing the clutch. However, on cross-examination, Hoy was unable to specify the exact conditions when he was able to force the tractor into gear. That is, he testified that he had used “all combinations” of the range lever and gear positions and he was unable to remember how the levers were positioned when he had been able to force the tractor to move into gear without depressing the clutch.

The defense, on the other hand, presented Lance Hendrickson, an engineer employed by Navistar, who testified that the Series 2400B tractor had been designed in accordance with standards promulgated by the SAE and that the placement of the range lever to the left side of the operator was the optimum location for operator comfort and ease of use. Furthermore, Hendrickson explained that the range lever had an internal “spring and ball” detent mechanism rather than an external detent device, which would have been slower and less safe for the operator. Additionally, Hendrickson testified that the very nature of the “sliding gear” transmission found on the Series 2400B tractor was a form of detent as well.

Defendant was then allowed to present videotapes, over plaintiff’s objection, showing tests that had been performed on the tractor used by Rios (termed the Rios tractor). Plaintiff’s objection stemmed from the fact that the tests were performed nine years after the accident, using the Rios tractor, which had been purchased by Navistar and repaired prior to the testing. These tests showed several unsuccessful attempts to force the range level' into “high” with the engine running in first or second gear.

Additionally, defendant presented the testimony of Dr. Edward Caulfield, who was qualified as a reconstruction expert due to his educational background in theoretical applied mechanics and biomechanics. Initially, Dr. Caulfield testified regarding his expertise in gear research and design. He expressed his opinion that the gear design on the Rios tractor was not unreasonably unsafe, explaining that the tests that had been performed under his supervision (those seen earlier in the videotapes) showed that the range lever could not be “inadvertently activated,” as was being presented by plaintiff. He conceded that, when forcing the lever down, some contact of the gears occurred and the friction caused some movement. But he noted that the videotapes illustrated that the movement ceased when the force was removed. Caulfield also indicated that, when forcing the lever as shown in the test, there would have been insufficient momentum for the tractor to have continued to move if it had encountered any resistance such as the obstacle of a body.

Finally, Dr. Caulfield testified that, based upon his review of the physical evidence and the medical evidence concerning the location of Rios’ injuries, “coupled with the mechanical fact *** that it is virtually impossible to engage the machine into high gear,” the accident could not have occurred as Rios had testified. He then hypothesized that when the accident occurred Rios had, in fact, been standing on the ground next to the tractor. He surmised that Rios had noticed the oil leak as he had approached the tractor and, deciding to check the leak, placed his right leg into the tractor to depress the clutch as he leaned into the tractor to turn the key to start the engine. As Rios removed his right foot from the clutch, the transmission, which had been left in gear, engaged and moved forward. This scenario, he testified, was consistent with plaintiff’s injuries.

After argument and instruction, the jury returned a verdict for defendant, and plaintiff appeals from the judgment entered upon the verdict.

The first contention of prejudicial error is the trial court’s admission of defendant’s videotape evidence of experiments which were conducted at the direction of their expert, Dr. Caulfield. The objection here, as at trial, is that the tests were performed more than nine years after the Rios accident, under conditions that did not approximate the conditions at the time of the accident and using the Rios tractor, which had been repaired and reconditioned.

Whether evidence of experiments made or tests performed should be admissible at trial depends upon whether the “essential conditions” or “essential elements” of the experiment are substantially similar to those existing at the time of the accident. (Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311; Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 524 N.E.2d 1136.) What constitutes the “essential elements” or the “essential conditions” varies and must be decided on a case-by-case basis. Surely, if a test is represented to be a reenactment of the occurrence at issue, it would be necessary to show that the test was performed under conditions that duplicate, as closely as possible, the conditions at the time of the occurrence. But if an experiment is intended to test only one aspect or principle directly related to the cause or result of the accident, the “essential conditions” need not involve an exact duplication of the accident conditions. (Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 144, 437 N.E.2d 376.) Whether the experiment evidence meets the criteria for admission is a determination left to the sound discretion of the trial judge, whose decision will not be overturned absent a clear abuse of discretion. Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 225, 419 N.E.2d 1253.

In the present case plaintiffs theory was that defendant’s tractor was defective, namely, that the design of the transmission made it likely that an operator of the tractor would inadvertently strike or hit against the range lever and that this condition was unreasonably dangerous because, by merely administering a certain amount of force to the range lever, the transmission could engage without requiring the use of the clutch mechanism. Defendant’s experiments were designed to test this theory by determining whether an exertion of force to the range lever could overcome the need for the clutch mechanism. Since the testimony of plaintiff’s witnesses established that the tractor, at the time of the accident, had been at “idle speed” (first or second gear) with the bucket attachment in “float” (up off the ground) and the range lever in neutral, when Rios inadvertently rubbed against or fell against the range lever, allegedly causing it to move into gear, these were the “essential conditions” which should have been, and were, duplicated by defendant.

The fact that the experiments took place nine years after the accident, using the Rios tractor which had been “reconditioned,” were circumstances to be considered when deciding whether the evidence should have been admitted. However, since defendant’s witness established that the repairs they made to the tractor involved only the clutch and that the transmission, when disassembled and inspected, was in the same condition as when it was manufactured and since plaintiff was alleging a design flaw, it would appear that the gap in time and the repairs were irrelevant. Consequently, after considering the limited purpose of the tests, i.e., to test the plausibility of plaintiff’s theory of causation, and the manner in which they were performed, we find no abuse of discretion in the trial court’s decision to admit this evidence.

What is more, even if we were to have found that the trial court had erred by admitting these experiments into evidence, we would not have found the matter to constitute reversible error. Generally, a reviewing court will not reverse a jury verdict because of an error in admission of evidence unless it appears that the error could have prejudiced the outcome and there has been a real denial of justice. (Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1019, 498 N.E.2d 867.) In this case, prior to the admission of defendant’s evidence, plaintiff had been allowed to present testimony through his witness, George Hoy, concerning tests he had performed on the tractor. According to his testimony, several hundred attempts were made to force the range lever from neutral into gear without depressing the clutch and he had been successful only once or possibly twice. We note, too, that this testimony was admitted even though plaintiff was unable to establish under what conditions he had been able to force the lever into gear. We find that under these circumstances the admission of defendant’s experiment evidence could not have unduly prejudiced the plaintiff’s position.

Rios next charges that the trial court erred in giving the following two non-IPI instructions to the jury:

“No. 4A: There is no duty upon the manufacturer of a tractor to manufacture a product with a different design if the different design is not feasible. Feasibility includes the elements of effectiveness and practicality.”
No. 9: In your consideration of whether at the time the tractor left the control of the defendant there existed a condition which made the tractor unreasonably dangerous, you may consider its compliance with relevant industry standards and practices. A standard or practice is relevant if it applies to the equipment and the use of that equipment involved in a particular case.”

Plaintiff alleges that there was no evidence presented at trial to support the giving of instruction No. 4A and that it was “an abstract statement that could only mislead the jury.” Plaintiff further alleges that the giving of instruction No. 9 severely prejudiced his case by misleading and confusing the jury.

The law concerning the giving of non-IPI instructions is derived from Supreme Court Rule 239 (107 Ill. 2d R. 239) and the case law interpreting this rule. Basically, the law states that Illinois Pattern Jury Instructions (IPI), which were devised for a court to instruct a jury on the law in an impartial and nonargumentative manner, shall be used unless the court determines that they do not accurately state the law. (Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152; Woolley v. Hafner’s Wagon Wheel, Inc. (1961), 22 Ill. 2d 413, 176 N.E.2d 757.) The use of non-IPI instructions in addition to IPI instructions is improper where the IPI instructions correctly and adequately charge the jury. (Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 419 N.E.2d 1253.) By the same token, however, each party has the right to have the jury instructed on his or her theory of the case, and the trial court must instruct the jury on all issues which it finds, in the exercise of its discretion, have been raised by the evidence presented. Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 751, 464 N.E.2d 866.

In light of these principles, we find that the trial court did not err by instructing the jury with the non-IPI instructions tendered by defendant. Defendant’s theory of the case was that the range lever was reasonably safe and designed in accordance with recommended industry standards and practice, which called for the placement of the lever to the left of the operator for efficiency and practicality. We note, too, that plaintiff’s experts, as well as defendant’s experts, relied upon various standards and industry practices in reaching their conclusions regarding the safety and appropriateness of the tractor design. Thus, it would appear that the non-IPI instructions were fully warranted by the evidence presented at trial. Additionally, the instructions correctly stated the law. See Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859 (a strict liability action where the court condoned an instruction nearly identical to instruction No. 4A used in this case, finding it to be an accurate statement of the law); Ruffiner v. Material Service Corp. (1987), 116 Ill. 2d 53, 58, 506 N.E.2d 581 (where the court held that evidence of standards promulgated by industry, trade, or regulatory groups or agencies are admissible to aid the trier of fact in determining whether a condition is unreasonably dangerous).

Finally, even if we were to grant plaintiff the gratuitous assumption that the use of these instructions had been improper, we would not find that the error warranted reversal since our review of the entire record convinces us that no harm could have accrued to plaintiff as a result of such error. See Palmer v. Palmer (1988), 169 Ill. App. 3d 828. 831. 523 N.E.2d 1316.

We now consider whether plaintiff was unduly prejudiced by the admission of defendant’s reconstruction evidence. We begin our analysis by first acknowledging that whether reconstruction evidence should be admitted at trial is a matter within the trial court’s discretion. (Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 649, 518 N.E.2d 205.) Generally, reconstruction testimony will not be allowed where the available physical evidence or eyewitness testimony is sufficient for a jury to draw conclusions on the material issues in question, but may be allowed in addition to eyewitness testimony when matters in the case involve scientific principles ordinarily beyond the ken of the jury and expert testimony would assist the jury in understanding these principles so that they might reach a correct and just verdict. Plank v. Holman (1970), 46 Ill. 2d 465, 471, 264 N.E.2d 12.

In a recent opinion, Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 547 N.E.2d 1345, the court discussed, at great length and detail, the status of the law in Illinois on the matter of admissibility of reconstruction evidence. The Augenstein court concluded that the admissibility of reconstruction evidence should be determined using the same standards announced by our supreme court concerning the admission of opinion evidence, i.e., whether the proffered expert is qualified to render an opinion and whether his testimony will aid the fact finder in the resolution of the dispute. In that court’s opinion, the availability of eyewitness testimony should be considered as merely one factor in determining whether the expert testimony will aid the fact finder in arriving at a just result. We agree with the Augenstein court’s summarization and interpretation of the law concerning the admission of reconstruction evidence and find that, applying the standard set forth in that case, the trial court did not abuse its discretion by allowing the reconstruction testimony into evidence.

In this case Rios, the only eyewitness to the accident, could remember very little about the incident but indicated, consistent with his theory of recovery, that he was injured when he fell from the tractor after he inadvertently struck the range lever, placing it into gear. He was impeached on various details, however, raising an issue as to the sufficiency of the available eyewitness testimony. Navistar’s expert was then permitted to express his opinion that the absence of injury to Rios’ right leg, his post-accident position, and the design of the tractor, precluded the possibility that the accident occurred in the manner that plaintiff had described. He then submitted for consideration an alternative explanation of the accident, consistent with the evidence and the defendant’s theory that no design defect existed in the tractor.

Under the circumstances of this case we find that the trial court’s exercise of its discretion in allowing the reconstruction testimony was not error. There is no doubt that defendant’s expert, Dr. Caulfield, based upon his credentials, background and experience, was highly qualified to testify. Thus, the issue is whether his testimony was helpful to the jury in resolving the dispute. We believe that the testimony was valuable in assisting the jury in understanding defendant’s theory of the case and, therefore, was admissible.

Plaintiff’s final issue on appeal is that the trial court erred by striking from the case plaintiff’s claim that the step in the exit way of the tractor was not slip resistant, thereby taking this issue away from the jury. While it is true that a party has the right to have the jury instructed on his theory of recovery or defense, if that theory is supported by facts in evidence or by reasonable inferences drawn therefrom (Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336), to prevail in a strict liability action the plaintiff must show not only some defect in the product or its design, but also that the condition of the product proximately caused the injury. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201.

In this case, although there was some evidence presented at trial that the step on the tractor was not equipped with a slip resistant surface, there was no evidence that Rios’ injury was caused by a slip from this step. Rios testified that the accident occurred when he inadvertently hit the range lever with his left side and then fell to the ground as he was exiting the tractor. Hoy testified that a few weeks after the accident Rios had told him that his shirttail caught on the lever, pulling it into gear as he was in the process of getting off the tractor. Since Rios’ own versions of the accident did not in any way implicate the condition of the step on the tractor, the court properly removed that issue from the jury.

While no trial is perfect, the record reflects that, in this instance, both parties had a fair opportunity to present their case. Consequently, reversal of the jury verdict and a remand for new trial is not warranted.

For the reasons stated above we affirm the judgment of the circuit court.

Affirmed.

COCCIA, P.J., and GORDON, J., concur.