People v. Schmidt ( 2010 )

No. 3--08--1037
Filed October 27, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 9th Judicial Circuit,
) Hancock County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 08--CF--28
)
GERALD C. SCHMIDT, )
) Honorable David F. Stoverink,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
The State charged defendant, Gerald Schmidt, with a plethora
of crimes stemming from an incident that occurred on May 27,
2008. A Hancock County jury found defendant guilty of unlawful
use of property (720 ILCS 646/35(a) (West 2008)), unlawful
possession of methamphetamine precursor (720 ILCS 646/20(b)(1)
(West 2008)), unlawful possession of methamphetamine (720 ILCS
646/60(a) (West 2008)), obstructing justice (720 ILCS 5/31--4(a)
(West 2008)), and aggravated fleeing or attempt to elude a peace
officer (625 ILCS 5/11--204.1(a)(1) (West 2008)). The circuit
court sentenced defendant to the following terms of imprisonment:
unlawful use of property, 20 years; unlawful use of
methamphetamine precursor, 20 years; unlawful possession of
methamphetamine, 4 years; obstructing justice, 2 years; and
aggravated fleeing or attempt to elude a peace officer, 2 years.
In this direct appeal, defendant claims that his conviction
for unlawful use of property cannot stand as section 35 of the
Methamphetamine Control and Community Protection Act (the Act)
(720 ILCS 646/35 (West 2008)) is: (1) unconstitutional as it
bears no reasonable relationship to a legitimate state interest;
(2) overbroad as it criminalizes innocent conduct; and (3)
unconstitutionally vague. Defendant further claims that the
State failed to prove him guilty beyond a reasonable doubt of
possession of a methamphetamine precursor and that his
convictions for both possession of methamphetamine and possession
of a methamphetamine precursor cannot stand as they are lesser-
included offenses of unlawful use of property.
FACTS
Fuller Fertilizer is located in Hancock County, just off
Highway 96, about two miles north of the Adams County line.
There is only one road in or out of the property. A main
building fronts the property, and the driveway leads past it and
toward the back of the property. In the back of the property,
2
there are several buildings, including a seed building, a
fertilizer plant and several anhydrous ammonia wagons.
At about 10 p.m. on May 27, 2008, Jeffrey Donley, an
employee of Fuller, reported to police that a small, white pick-
up truck with a loud muffler had driven onto the company grounds
with its lights off. The truck proceeded past the main building
and up over a hill toward a large, open-ended Quonset hut.
Within 15 minutes, several officers arrived. Deputy Joshua
Smith testified that, after speaking with Donley, he drove toward
the back of the property. Deputy Mike Norris walked along the
path the white truck had followed, carrying a rifle equipped with
a flashlight. Two other officers used their squad cars to block
the entrance to the grounds.
Deputy Smith drove through a grassy field, passed the
ammonia wagons, and circled back toward the Quonset hut where he
saw a white Ford Ranger pickup truck that was later determined to
be registered to defendant. As Smith drove down a hill toward
the Quonset hut, Norris radioed him to advise that the truck's
engine had started. The truck then sped away and Smith, after
activating his emergency lights, pursued the truck.
The driver of the truck turned its headlights on as it drove
away from Smith. The driver nearly hit Deputy Norris with the
3
truck as Norris stood in a gravel parking lot on the grounds.
Norris fired two shots at the truck: one struck the front fender
and the other punctured the front driver's-side tire. The truck
continued to head for the exit, forcing the police that were
blocking it to back away to avoid being struck by the pickup.
Smith continued to follow the truck down Highway 96. Chunks
of tire flew from the left front of the truck as it drove down
the highway. During the chase, Smith witnessed the driver lean
over to the passenger-side window, open it, and throw a blue
container out of the window. A blue bowl containing suspected
pseudoephedrine was found the next day in the area where Smith
witnessed the driver of the truck jettison the blue object.
Smith followed the truck over the Adams County line, at
which time the driver's-side front tire had come completely off
the truck. Eventually, the truck stopped in a residential alley
in Quincy, Illinois. Police then arrested the defendant driver.
At the time of arrest, a white powder covered defendant as well
as the front seat of the pickup. Deputy Norris collected the
powder from the front seat.
Police later searched the Quonset hut and the area immedi-
ately surrounding it. They found a bucket, other containers,
plastic gloves, salt, Coleman fuel, Liquid Fire, coffee filters,
4
side cutters, a pocket knife and battery peelings. It is undis-
puted that all of the items found are items used in the manufac-
ture of methamphetamine.
Joni Mitchell, a forensic scientist employed by the Illinois
State Police, tested both the substance found on the front seat
of the truck and the substance found in the bowl recovered from
the side of the highway. She determined that the substance found
in the bowl was "1.9 grams of powder [that] does indeed contain
methamphetamine and pseudoephedrine." She could not determine
what percentage of the substance was pseudoephedrine and what
percentage was methamphetamine. She explained that it is "pretty
common to find in a methamphetamine sample, not all of the
pseudoephedrine gets cooked up and so some of it is left behind.
And we typically find it a lot of times with meth." The
substance recovered from the pickup truck weighed 3.1 grams and
was determined to contain methamphetamine.
Ultimately, the jury acquitted defendant of the offenses of
burglary and unlawful participation in methamphetamine
manufacturing. The jury found defendant guilty of unlawful use
of property, unlawful possession of methamphetamine precursor,
unlawful possession of methamphetamine, obstructing justice,
aggravated fleeing or attempting to elude a police officer, and
5
aggravated assault. Defendant filed a timely posttrial motion.
After the trial court considered defendant's motion, it entered a
judgment notwithstanding the verdict in favor of defendant on the
aggravated assault charge.
At sentencing, the trial court found that defendant's
criminal record mandated that he be sentenced as a Class X
offender for the two Class 2 felonies: unlawful use of property
and unlawful possession of methamphetamine precursor. For these
crimes, the trial court sentenced defendant to concurrent 20-year
terms of incarceration. The trial also sentenced defendant to a
four-year term for unlawful possession of methamphetamine, a two-
year term for obstructing justice, and a two-year term for
aggravated fleeing and attempting to elude a peace officer. All
sentences imposed run concurrently.
Defendant filed a timely motion to reconsider sentence that
the trial court denied. This timely appeal followed.
ANALYSIS
A. Constitutionality Challenges
Section 35 of the Act states:
"(a) It is unlawful for a person
knowingly to use or allow the use of a
vehicle, a structure, real property, or
6
personal property within the person's
control to help bring about a violation
of this Act.
(b) A person who violates subsection
(a) of this Section is guilty of a Class 2
felony." 720 ILCS 646/35 (West 2008).
Defendant argues this section is unconstitutional for
several reasons. He claims it: (1) bears no reasonable
relationship to the interest intended to be protected; (2) is
overbroad; and (3) is vague. Our review of defendant's
constitutional challenge is guided by familiar principles.
Statutes are presumed constitutional and the party challenging
the constitutionality of a statute bears the burden of
establishing its invalidity. People v. Wright, 194 Ill. 2d 1,
740 N.E.2d 755 (2000). The legislature has great discretion to
establish penalties for criminal offenses, but this discretion is
limited by the constitutional guarantee that a person may not be
deprived of liberty without due process of law. In re K.C., 186
Ill. 2d 542, 714 N.E.2d 491 (1999).
1. Rational Basis Test
When legislation does not affect a fundamental constitu-
tional right, the rational basis test is used to determine
7
whether it complies with substantive due process requirements.
People v. Hamm, 149 Ill. 2d 201, 595 N.E.2d 540 (1992). Under
this test, a statute will be upheld if it "bears a reasonable
relationship to a public interest to be served, and the means
adopted are a reasonable method of accomplishing the desired
objective." People v. Adams, 144 Ill. 2d 381, 390, 581 N.E.2d
637, 642 (1991). "In other words, the statute must be reasonably
designed to remedy the evils which the legislature has determined
to be a threat to the public health, safety and general welfare."
People v. Falbe, 189 Ill. 2d 635, 640, 727 N.E.2d 200, 204
(2000).
Our legislature stated that it enacted the Act for the
following reasons:
"The purpose of this Act is to reduce the
damage that the manufacture, distribution, and
use of methamphetamine [is] inflicting on children,
families, communities, businesses, the economy,
and the environment in Illinois. The General
Assembly recognizes that methamphetamine is
fundamentally different from other drugs regulated
by the Illinois Controlled Substances Act because
the harms relating to methamphetamine stem not
8
only from the distribution and use of the drug,
but also from the manufacture of the drug in
this State. Because methamphetamine is not only
distributed and used but also manufactured here,
and because the manufacture of methamphetamine
is extremely and uniquely harmful, the General
Assembly finds that a separate Act is needed to
address the manufacture, distribution, and use
of methamphetamine in Illinois." 720 ILCS 646/5
(West 2008).
Defendant argues section 35 fails the rational basis test,
"as it neither bears a reasonable relationship to the interest it
was intended to protect, nor does it employ a reasonable method
of furthering that interest." Defendant notes the State charged
him with violating section 35 by using his pickup truck to help
bring about a violation of the Act. This, defendant claims,
penalized him for the lawful act of driving a vehicle "solely
because that conduct occurred simultaneously with his possession
of methamphetamine." Noting that section 35 applies to all kinds
of property, not just vehicles, defendant submits that there "is
no rational relationship between reducing the harm caused by
methamphetamine and the use of any property, real or personal, to
9
commit the offense, nor does prohibiting the use of any property
further or protect a legitimate State interest." (Emphasis in
original.)
Intertwined with this constitutional argument are defen-
dant's claims that section 35 is both overbroad and vague.
Defendant argues that section 35 can bear no rational relation-
ship to the purpose of the Act since "the use of any property,
real or personal, sweeps too broadly and punishes innocent as
well as culpable conduct, and [therefore] does not bear a reason-
able relationship to the stated purpose of the Act."
In its response, the State claims that we "deal here only
with the charged use of the pickup truck to help bring about a
violation of the Act and need not be concerned with the use of
other things stated in the statute to help bring about a viola-
tion of the Act." Citing to People v. Jordan, 218 Ill. 2d 255,
843 N.E.2d 870 (2006), the State argues that unconstitutional
provisions of a statute may be severed from the remainder of a
statute if what remains is complete in and of itself and can be
executed wholly independently of the severed part. Therefore,
the State suggests the only question properly before this court
is the constitutionality of section 35's prohibition against one
"knowingly" using a vehicle to bring about a violation of the
10
Act. Defendant claims the State's severability argument is an
acknowledgment that section 35 is unconstitutionally overinclu-
sive as it effectively includes any person, such as the instant
defendant, who possesses methamphetamine while in a car, on land,
in a house, in a nonresidential building, while using any sort of
tool or other object, or even, simply, while clothed.
We agree with the State that we need not address any
provision in section 35 other than its reference to the use of a
vehicle to bring about a violation of the Act. We reach this
conclusion not because of severability issues, but because that
is the actual case that has been presented to us. Our supreme
court has clearly stated:
"We cannot, and need not in this
proceeding, pass upon all hypothetical
situations and tenuous circumstances which
may be presented by counsel. While we
recognize that a valid statute may be
unconstitutionally applied, the precise
limitations to be placed on the words in
question can best be specified when actual
cases requiring such interpretation are
presented." J.G. Stein v. Howlett, 52 Ill.
11
 2d 570, 580-81, 289 N.E.2d 409, 415 (1972).
See Jacobs v. City of Chicago, 53 Ill. 2d 412, 292 N.E.2d 401
(1973).
The "actual case" before us involves the State charging
defendant with bringing about a violation of the Act through the
use of his vehicle. Therefore, we find our inquiry is con-
strained to the consideration of whether section 35's proscrip-
tion on using a vehicle to bring about a violation of the Act
passes the rational basis test. Again, we must uphold the
statute if it bears a reasonable relationship to a public inter-
est to be served and the means adopted are a reasonable method of
accomplishing the desired objective. Adams, 144 Ill. 2d at 390,
581 N.E.2d at 642. In applying the rational basis test, "we must
identify the public interest the statute is intended to protect,
determine whether the statute bears a rational relationship to
that interest, and examine whether the method chosen to protect
or further that interest is reasonable." People v. Boeckmann,
238 Ill. 2d 1, 7, 932 N.E.2d 998, 1002 (2010). We hold the
statute satisfies this test.
While the Act is relatively new, becoming effective on
September 11, 2005, at least one other court has noted that its
"language shows the legislature intended to safeguard the public
12
welfare from the harm caused by manufacturing and distribution of
methamphetamine." People v. Willner, 392 Ill. App. 3d 121, 124,
924 N.E.2d 1029, 1032 (2009). When removing methamphetamine-
related crimes from the Illinois Controlled Substances Act and
creating the Methamphetamine Control and Community Protection
Act, our legislature specifically identified the unique nature of
methamphetamine and the damage it causes within the State of
Illinois. 720 ILCS 646/5 (West 2008). The legislature noted
that methamphetamine is "fundamentally different from other drugs
regulated" in Illinois as it is not only used and distributed
here but also manufactured here. 720 ILCS 646/5 (West 2008).
The legislature proclaimed that manufacturing the drug is so
"extremely and uniquely harmful" that "a separate Act [was]
needed to address" the evils associated with methamphetamine.
720 ILCS 646/5 (West 2008).
In our view, prohibiting the use of a vehicle to bring about
a violation of the Act is a reasonable method of accomplishing
the Act's desired objective: that is, reducing or eliminating
methamphetamine-related crimes in the state and the corresponding
harm caused by those crimes. We find section 35's proscription
against using vehicles to bring about a violation of the Act is
reasonably designed to remedy the evils that the legislature has
13
determined to be a threat to the public health, safety and
general welfare of the state and is reasonably related to
stopping the manufacturing and distribution of methamphetamine in
the state. The legislature has the power to limit the use of a
vehicle, or other property, that one intends to use to violate
the Act. See People v. Hickman, 163 Ill. 2d 250, 644 N.E.2d 1147
(1994) (the legislature has the power to declare and define
criminal conduct and to determine the type and extent of
punishment for it).
Our holding finds support from People v. McCarty, 223 Ill.
2d 109, 858 N.E.2d 15 (2006). In McCarty, when presented with a
challenge that a specific methamphetamine law was not reasonably
designed to remedy the particular evil that the legislature
targeted when enacting it, our supreme court gave great deference
to the legislature. In McCarty, defendants manufactured a
substance containing methamphetamine but did not produce any
"usable methamphetamine." McCarty, 223 Ill. 2d at 135, 858
N.E.2d at 32. The McCarty defendants did not present the exact
same challenge as defendant herein, but they did argue that,
since they produced no usable methamphetamine, "their 15-year
minimum sentences are not reasonably designed to remedy the harm
the legislature sought to address" when establishing the
14
methamphetamine laws. McCarty, 223 Ill. 2d at 135, 858 N.E.2d at
32. Our supreme court disagreed and noted that the "legislature
could reasonably have concluded that punishing manufacturers of
methamphetamine with a strict penalty, regardless of the ultimate
success of their enterprise, discourages even casual
experimentation with producing the drug, thereby reducing the
quantity of the drug available to individuals with no 'legitimate
reason to possess' it [citation], and preventing its 'unlawful
and destructive abuse.' [citation]." McCarty, 223 Ill. 2d at
139-40, 858 N.E.2d at 34.
Similarly, the legislature could reasonably have concluded
that punishing those who use vehicles to help bring about a
violation of the Act discourages transport associated with
producing or distributing the drug, thereby reducing the quantity
of the drug available. As such, we reject defendant's claim that
section 35 "neither bears a reasonable relationship to the
interest it was intended to protect, nor [employs] a reasonable
method of furthering that interest."
2. Vagueness
We also find defendant's claim of vagueness to be without
merit. The determination of whether a statute is void for
vagueness must be made in the factual context of each case.
15
Falbe, 189 Ill. 2d at 639, 727 N.E.2d at 203-04.
"In order to satisfy constitutional
principles of due process, a statute must
give a person of ordinary intelligence a
reasonable opportunity to know what is
prohibited, so that he may act accordingly,
and provide explicit standards for those
police officers, judges and juries who
apply it in order to prevent arbitrary and
discriminating enforcement. [Citations.]
Where, as here, no first amendment concern
is implicated, there is no right to challenge
the statute as being vague on its face if it
clearly applies to defendants' conduct.
[Citation.] Thus, the issue is whether [the
statute] is unconstitutionally vague as applied
to the conduct for which these defendants were
prosecuted." (Emphasis in original.) People v.
Conlan, 189 Ill. 2d 286, 292, 725 N.E.2d 1237,
1240 (2000).
Defendant does not argue that the sections of the Act that
prohibit participating in methamphetamine manufacturing (720 ILCS
16
646/15 (West 2008)), possessing a methamphetamine precursor with
the intent to manufacture methamphetamine (720 ILCS 646/20 (West
2008)), or simple possession of methamphetamine (720 ILCS 646/60
(West 2008)) are vague. Defendant simply submits that section 35
is vague as it "is unclear whether this section aims to prevent
one from assisting another, or whether it means that a person
cannot use any property, real or personal, to himself commit a
separate violation of the Act."
A statute is not unconstitutionally vague if it gives a
person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly, and provides
explicit enough standards for those police officers, judges, and
juries who apply them in order to prevent arbitrary and
discriminatory enforcement. Grayned v. City of Rockford, 408
U.S. 104, 108-09, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2298-
99. Section 35 is sufficiently clear to provide a person of
ordinary intelligence with fair notice that, if he uses a vehicle
to bring about a violation of the Act, he violates that section
of the Act and, therefore, commits a Class 2 felony.
We also reject defendant's contention that section 35
encourages arbitrary and discriminatory enforcement. Defendant
notes that section 35 "allows the prosecutor to enhance, for
17
example, simple possession of less than 5 grams of
methamphetamine from a Class 3 felony to a Class 2 felony simply
because a person possesses methamphetamine while driving a car,
as occurred in the instant case."
When considering similar challenges, our supreme court has
invalidated penal legislation when "a criminal ordinance vests
unfettered discretion in the police to determine whether a
suspect's conduct has violated the ordinance" (City of Chicago v.
Morales, 177 Ill. 2d 440, 457, 687 N.E.2d 53, 63 (1997)), as such
legislation "'entrust[s] lawmaking "to the moment-to-moment
judgment of the policeman on his beat."'" (Morales, 177 Ill. 2d
at 457, 678 N.E.2d at 63, quoting Smith v. Goguen, 415 U.S. 566,
575, 39 L. Ed. 2d 605, 613, 94 S. Ct 1242, 1248 (1974), quoting
Gregory v. City of Chicago, 394 U.S. 111, 120, 22 L. Ed. 2d 134,
141, 89 S. Ct. 946, 951 (1969)).
Section 35 is not a statute that encourages arbitrary
enforcement like others that penalized "rogues," "vagabonds," or
"habitual loafers." See Kolender v. Lawson, 461 U.S. 352, 75 L.
Ed. 2d 903, 103 S. Ct. 1855 (1983); see also Papachristou v. City
of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839
(1972). In the context of the facts before us, section 35 does
not allow police or prosecutors to detain or prosecute people
18
"practically at their whim." People v. Anderson, 148 Ill. 2d 15,
30, 591 N.E.2d 461, 468 (1992). As such, we see no danger of
arbitrary enforcement of section 35's prohibition against using a
vehicle to bring about a violation of the Act. This prohibition
makes clear that charges may be brought only when there is
probable cause to believe one has violated the Act and used a
vehicle to do so.
3. Overbreadth
We are also not persuaded by defendant's overbreadth
challenge. Defendant argues that section 35 is "overbroad" in
that "it is impossible to conceive of a way to violate any other
Section fo the Act without also violating [section] 35. In this
fashion, Section []35 is overbroad." We disagree. Defendant has
cited no case law supporting this contention. The United States
Supreme Court noted that, "Rarely, if ever, will an overbreadth
challenge succeed against a law or regulation that is not
specifically addressed to speech or to conduct necessarily
associated with speech (such as picketing or demonstrating)."
Virginia v. Hicks, 539 U.S. 113, 124, 156 L. Ed. 2d 148, 160, 123
S. Ct. 2191, 2199 (2003). Defendant's first amendment rights are
not implicated in this matter and he cites no authority to even
suggest an overbreadth challenge is applicable in this instance.
19
Furthermore, it is certainly not overbroad in the context of
the instant facts. It is quite easy to conceive of violations of
the Act that do not involve the use of a vehicle.
B. Sufficiency of the Evidence
Defendant next contends that the State failed to prove him
guilty of possession of precursor with intent to manufacture
methamphetamine beyond a reasonable doubt. Defendant argues that
his claim regarding the evidence adduced at trial "does not
entail any assessment of the credibility of witnesses, but only
the determination [of] whether a certain set of facts sufficed to
meet the State's burden of proof," and therefore, our review is
de novo. We disagree. As detailed below, the State and
defendant cite to very different pieces of evidence when arguing
about whether the State proved each essential element of the
offense beyond a reasonable doubt. Defendant discusses what
certain evidence "suggested" and the State refers to "reasonable
inferences" to be drawn from other evidence. Our standard of
review on this issue is to decide, after reviewing the evidence
in the light most favorable to the prosecution, if any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. People v. Cunningham, 212 Ill.
2d 274, 818 N.E.2d 304 (2004).
20
Defendant argues no rational trier of fact could have made
such a finding concerning his conviction for possession of a
methamphetamine precursor with intent to manufacture
methamphetamine in violation of section 20(b)(1) of the Act.
Section 20(b)(1) states:
"It is unlawful to knowingly possess,
procure, transport, store, or deliver any
methamphetamine precursor or substance
containing any methamphetamine precursor in
any form other than a standard dosage form
with the intent that it be used to manufacture
methamphetamine or a substance containing
methamphetamine." 720 ILCS 646/20(b)(1)
(West 2008).
Defendant claims that he "cannot truly be said to have
possessed" a precursor since the "forensic scientist suggested
that defendant possessed [actual] methamphetamine, and that the
methamphetamine contained [the] precursor, an ingredient that had
not been fully integrated into the methamphetamine." Defendant
is referring to Joni Mitchell's testimony in which she described
the substance recovered from both the front seat of defendant's
pickup and the blue bowl as containing both methamphetamine and
21
pseudoephedrine. Mitchell also noted that she could not deter-
mine what percentage of the substance was methamphetamine and
what percentage was pseudoephedrine, but that, much of the time,
not all the pseudoephedrine gets cooked up and some is left
behind after the manufacturing process."
Defendant argues this testimony, at best, shows that any
precursor (pseudoephedrine) he did possess was not intended to be
used to manufacture additional methamphetamine but was, instead,
merely not fully cooked in the methamphetamine he already
possessed. The flaw in defendant's argument is, as the State
indicates, that he fails to consider both the possession of the
precursor, pseudoephedrine, and the intent to manufacture in the
context of all the evidence.
It is undisputed that a number of manufacturing materials
were found at the Quonset hut. These materials included a bucket
and other containers, plastic gloves, salt, Coleman fuel, Liquid
Fire, coffee filters, side cutters, a pocket knife and battery
peelings. Defendant neither disputes these items were found in
an area in which he was seen nor that they are used to manufac-
ture methamphetamine. The State notes this is not a situation in
which a defendant is caught merely possessing a bag of metham-
phetamine. Defendant possessed both methamphetamine and
22
pseudoephedrine after leaving an area that, unquestionably, had
been used to manufacture methamphetamine. From these facts, the
State argues, the jury could have reasonably inferred that
defendant was interrupted in his manufacturing of methamphetamine
and, given his flight and choice to retain possession of that
pseudoephedrine, intended to manufacture it later. We agree and,
therefore, find that when we view the evidence in the light most
favorable to the prosecution, the State proved beyond a reason-
able doubt all the essential elements necessary to convict
defendant of violating section 20(b)(1) of the Act. 720 ILCS
646/20(b)(1) (West 2008).
C. One-Act, One-Crime Challenges
Defendant's final contention is that his convictions for
possession of methamphetamine and unlawful possession of
methamphetamine precursor with intent to manufacture must be
vacated as lesser-included offenses of unlawful use of property.
Defendant acknowledges he failed to raise this issue below, but
invites us to review it as plain error. The State agrees that if
the conviction for unlawful use of property is affirmed, we must
vacate the conviction for possession of methamphetamine and
methamphetamine precursor as lesser-included offenses.
It is well settled that the plain error doctrine allows a
23
reviewing court to consider unpreserved errors when a clear and
obvious error occurs and the evidence is closely balanced so that
the error alone threatened to tip the scales of justice against
defendant. People v. Lewis, 234 Ill. 2d 32, 912 N.E.2d 1220
(2009). A court of review may also consider unpreserved errors
when a clear and obvious error occurs and that error is so
serious that it affected the fairness of the defendant's trial
and challenged the integrity of the judicial process, regardless
of the closeness of the evidence. Lewis, 234 Ill. 2d at 42-43,
912 N.E.2d at 1226-27.
Our supreme court is clear that an "alleged one-act, one-
crime violation and the potential for a surplus conviction and
sentence affects the integrity of the judicial process, thus
satisfying the second prong of the plain error rule." People v.
Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194 (2004). As
such, we will address defendant's claims that his convictions for
unlawful possession of methamphetamine and unlawful possession of
methamphetamine precursor with the intent to manufacture must be
vacated given his conviction and sentence for unlawful use of
property.
One-act, one-crime analysis involves two steps: (1) the
reviewing court must determine whether the defendant's conduct
24
consisted of one physical act or separate physical acts and, if
the court concludes that the conduct consisted of separate acts;
then, (2) the court must determine whether any of those offenses
are lesser-included offenses. In re Rodney S., 402 Ill. App. 3d
272, 932 N.E.2d 588 (2010). As this court has noted, an "act" is
any "'overt or outward manifestation which will support a
different offense.'" People v. Horrell, 381 Ill. App. 3d 571,
573-74, 885 N.E.2d 1218, 1221 (2008), quoting People v. King, 66
Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). "Multiple
convictions are improper if they are based on precisely the same
physical act." People v. Artis, 232 Ill. 2d 156, 165, 902 N.E.2d
677, 683 (2009).
Defendant's conviction for unlawful possession of
methamphetamine precursor was based on evidence that defendant
knowingly possessed or stored pseudoephedrine with the intent
that less than 10 grams of methamphetamine be manufactured in
violation of section 20(b)(1) of the Act. As noted above in
subsection B, the State proved defendant guilty of this crime
beyond a reasonable doubt.
Defendant's conviction for unlawful possession of
methamphetamine was based on evidence that defendant unlawfully
and knowingly possessed less than five grams of methamphetamine
25
or a substance containing methamphetamine in violation of section
60(a) of the Act. Defendant does not challenge the sufficiency
of the evidence on this charge.
Defendant's conviction for unlawful use of property indicate
that defendant, in violation of section 35(a) of the Act,
unlawfully and knowingly used his 1990 Ford Ranger pickup truck
to help bring about a violation of the Act, possession of
methamphetamine.
Defendant's convictions are based on three separate acts:
possessing pseudoephedrine, possessing methamphetamine, and using
a vehicle to help possess methamphetamine. The three counts and
convictions are not based on "precisely the same physical act."
As such, defendant's convictions only violate one-act, one-crime
principles if one is a lesser-included offense of the other.
To determine whether defendant's convictions for possession
of methamphetamine precursor and/or possession of methamphetamine
are lesser-included offenses of unlawful use of property, we
employ the abstract elements approach. People v. Miller, No.
107878 (September 23, 2010). "Under the abstract elements
approach, a comparison is made of the statutory elements of the
two offenses. If all of the elements of one offense are included
within a second offense and the first offense contains no element
26
not included in the second offense, the first offense is deemed a
lesser-included offense of the second. *** In other words, it
must be impossible to commit the greater offense without
necessarily committing the lesser offense." Miller, slip op. at
4.
The instruction tendered to the jury concerning unlawful use
of property parroted the statutory elements but also identified
only possession of methamphetamine as the predicate violation of
the Act. The jury instruction reads as follows:
"A person commits the offense of
unlawful use of property when he knowingly
uses or allows the use of a vehicle within
his control to help bring about a violation
of Methamphetamine Control and Community
Protection Act, being the unlawful possession
of methamphetamine.
A vehicle within his control means the
power or authority to direct, restrict or
regulate the use of the vehicle."
All of the elements of possession of methamphetamine are
included in defendant's conviction for unlawful use of property.
As such, we vacate defendant's conviction for possession of
27
methamphetamine and remand to the circuit court to revise the
sentencing order to reflect the same. However, we disagree with
the State and defendant that defendant's conviction for
possession of methamphetamine precursor must be vacated. We
acknowledge that the State confesses error on this issue.
Nevertheless, as a court of review, we are not bound by a party's
concession (People v. Horrell, 235 Ill. 2d 235, 919 N.E.2d 952
(2009); People v. Kliner, 185 Ill. 2d 81, 705 N.E.2d 850 (1998))
and may affirm the trial court's ruling on any grounds evident in
the record (Gunthorp v. Golan, 184 Ill. 2d 432, 704 N.E.2d 370
(1998); Fitch v. McDermott, Will & Emery, LLP, 401 Ill. App. 3d
1006, 929 N.E.2d 1167 (2010); Brandon v. Bonell, 368 Ill. App. 3d
492, 858 N.E.2d 465 (2006)).
The instruction given to the jury makes it evident to us
that defendant's conviction for unlawful use of property is based
on the use of his vehicle while possessing methamphetamine, and
only methamphetamine. While defendant's conviction for unlawful
use of property fully encompassed his conviction for possession
of methamphetamine, in that it included every element of that
crime, his unlawful use of property conviction is unrelated to
the separate act of possession of a methamphetamine precursor.
None of the elements of possession of a methamphetamine precursor
28
laid the groundwork for defendant's conviction of unlawful use of
property; his unlawful use of property conviction would stand
even had he not possessed the pseudoephedrine. As such,
defendant's conviction for possession of methamphetamine
precursor is not a lesser-included offense of his unlawful use of
property conviction.
We note that had the unlawful use of property charge been
predicated on the unlawful possession of a methamphetamine
precursor, the result would have been different. We do not
suggest that possession of the precursor cannot be a lesser-
included offense of unlawful use of property.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Hancock County is affirmed with the exception of defendant's
conviction for possession of methamphetamine (720 ILCS 646/60(a)
West 2008)), which the parties and we agree must be, and is,
vacated as a lesser-included offense of unlawful use of property.
This cause is remanded to the circuit court to modify its
sentencing order consistent with this opinion.
Affirmed in part and vacated in part; cause remanded with
directions.
CARTER and O'BRIEN, JJ., concur.
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