People v. Fiumetto

2018 IL App (2d) 170230

109 N.E.3d 756

The PEOPLE of the State of Illinois, Plaintiff–Appellant,

v.Nicole E. FIUMETTO, Defendant–Appellee.

The People of the State of Illinois, Plaintiff–Appellant,

v.Joclyn E. Hall, Defendant–Appellee.

Nos. 2–17–0230 & 2–17–0231 cons.

Appellate Court of Illinois, Second District.

Opinion filed June 12, 2018

Rehearing denied September 28, 2018

Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino, David J. Robinson, and Ivan O. Taylor Jr., of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

James E. Chadd, Thomas A. Lilien, and Bruce Kirkham, of State Appellate Defender’s Office, of Elgin, for appellees.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 In these consolidated cases, the State appeals from the judgment of the circuit court of Lake County dismissing the charges of knowingly possessing a hypodermic syringe ( 720 ILCS 635/1 (West 2016) ) against defendants, Nicole E. Fiumetto and Joclyn E. Hall, and dismissing the charge of possessing drug paraphernalia ( 720 ILCS 600/3.5(a) (West 2016) ) against Hall. Because the trial court correctly dismissed the drug-paraphernalia charge but erred in dismissing the hypodermic-syringe charges, we affirm in part, reverse in part, and remand.

¶ 2 I. BACKGROUND

¶ 3 Defendants were charged by information with possession of a hypodermic syringe ( 720 ILCS 635/1 (West 2016) ) and possession of drug paraphernalia ( 720 ILCS 600/3.5(a) (West 2016) ).

¶ 4 In each case, count I of the information alleged that the defendant knowingly possessed a hypodermic syringe.

¶ 5 Count II of Hall's information alleged that she knowingly possessed drug paraphernalia (a spoon) with the intent to ingest, inhale, or introduce a controlled substance into a human body. Counts II and III of Fiumetto's information alleged, respectively, that she knowingly possessed drug paraphernalia (a cooker and tin foil) with the intent to ingest, inhale, or introduce a controlled substance into a human body.

¶ 6 Defendants moved to dismiss all of the charges. Each defendant contended that the charge of possessing a hypodermic syringe was deficient because the State failed to allege that she was not a person who was at least 18 years old and who had purchased no more than 20 syringes from a pharmacy, per section 1(b) of the Hypodermic Syringes and Needles Act (Syringes Act) ( 720 ILCS 635/1(b) (West 2016) ). Both defendants further maintained that the drug-paraphernalia charges were deficient because the alleged items did not fall within the definition of drug paraphernalia, as set forth in section 2(d) of the Drug Paraphernalia Control Act (Paraphernalia Act) ( 720 ILCS 600/2(d) (West 2016) ).

¶ 7 The trial court dismissed all charges as to both defendants. The State filed a motion to reconsider the dismissal of the hypodermic-syringe charges as to both defendants and the drug-paraphernalia charge as to Hall. The trial court denied the motion to reconsider. In doing so, the court noted that the parties had stipulated that the spoon was the "kind of spoon that you find in any home, any restaurant, any school" and had not been modified to be used for drug consumption.

¶ 8 Following the denial of the motion to reconsider, the State filed a certificate of impairment (see Ill. S. Ct. R. 604(a)(1) (eff. Mar. 8, 2016) ) and appealed the dismissal of the hypodermic-syringe charges as to both defendants and the drug-paraphernalia charge as to Hall. We consolidated the cases.

¶ 9 II. ANALYSIS

¶ 10 On appeal, the State contends that (1) because section 1(b) of the Syringes Act constitutes an exception to, rather than a description of, the offense of possessing a hypodermic syringe, its inapplicability need not be alleged in the charging instrument and, (2) although it was an ordinary spoon, because Hall intended to use the spoon to ingest a controlled substance, it qualified as drug paraphernalia. Defendants respond that, because section 1(b) describes the offense of possessing a hypodermic syringe, its inapplicability must be included in the charge. Hall further responds that, because a common spoon, without modification, is not intended to be used to ingest, inhale, or otherwise introduce a controlled substance into a human body, the State failed to properly allege a violation of the Paraphernalia Act.

¶ 11 We first address whether the State properly charged the offense of possession of a hypodermic syringe. It did.

¶ 12 A defendant has the fundamental right to be informed of the nature and cause of a criminal accusation. People v. Rowell , 229 Ill. 2d 82, 92–93, 321 Ill.Dec. 765, 890 N.E.2d 487 (2008) (citing 725 ILCS 5/111–3 (West 2004) ). Section 111–3(a)(3) of the Code of Criminal Procedure of 1963 requires that a charging instrument set forth the nature and elements of the offense. 725 ILCS 5/111–3(a)(3) (West 2016). If a charging instrument is challenged before trial, the charge must strictly comply with the pleading requirements of section 111–3. Rowell , 229 Ill. 2d at 93, 321 Ill.Dec. 765, 890 N.E.2d 487. If it does not, the proper remedy is dismissal. Rowell , 229 Ill. 2d at 93, 321 Ill.Dec. 765, 890 N.E.2d 487. Dismissal is proper regardless of any prejudice. People v. Cuadrado , 214 Ill. 2d 79, 87, 291 Ill.Dec. 638, 824 N.E.2d 214 (2005).

¶ 13 It is well established that, where an act is made criminal with exceptions embraced in the enacting clause creating the offense, so as to be descriptive of it, the State must allege and prove that the defendant is not within the exceptions so as to show that the precise crime has been committed. People v. Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389. Put another way, where the exception is descriptive of the offense, it must be charged and negatived. Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389. However, if the exception, instead of being part of the description of the offense, merely withdraws certain persons or acts from the operation of the statute, it need not be charged and negatived. Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389. Whether the exception is in the same section as the offense or in a separate section is not dispositive. Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389. Instead, a court must determine more generally whether the legislature intended the exception to be descriptive of the offense or whether it intended only to withdraw, or except, certain persons or acts from the operation of the statute. Tolbert , 2016 IL 117846, ¶ 15, 401 Ill.Dec. 1, 49 N.E.3d 389. Those latter exceptions are generally matters of defense. Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389.

¶ 14 The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent. People v. Espino–Juarez , 2018 IL App (2d) 150966, ¶ 12, ––– Ill.Dec. ––––, ––– N.E.3d ––––. The best evidence of legislative intent is the language of the statute. Espino–Juarez , 2018 IL App (2d) 150966, ¶ 12, ––– Ill.Dec. ––––, ––– N.E.3d ––––. Where possible, the court should interpret the statutory language according to its plain and ordinary meaning. Espino–Juarez , 2018 IL App (2d) 150966, ¶ 12, ––– Ill.Dec. ––––, ––– N.E.3d ––––.

¶ 15 Here, we must decide whether the legislature intended section 1(b) of the Syringes Act to describe the offense or merely to except certain persons or acts from criminal liability. It is the latter.

¶ 16 Section 1(a) of the Syringes Act begins with the phrase "[e]xcept as provided in subsection (b)." 720 ILCS 635/1(a) (West 2016). In turn, section 1(b) states that any person who is at least 18 years old may possess up to 20 syringes if she has purchased them from a pharmacy. 720 ILCS 635/1(b) (West 2016). The plain language of section 1(b) excepts from liability certain persons (those who are at least 18 years old) who commit certain acts (purchasing from a pharmacy no more than 20 syringes). By identifying certain persons and certain acts not subject to criminal prosecution, the legislature intended to create an exception to, as opposed to a description of, the offense. See Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389.

¶ 17 The mere placement of the reference to section 1(b) within section 1(a), which defines the offense, does not alone show any intent to make the language in section 1(b) descriptive of the offense. As noted, the location of the exception, whether in the same or a separate section, is not determinative. See Tolbert , 2016 IL 117846, ¶ 14, 401 Ill.Dec. 1, 49 N.E.3d 389.

¶ 18 Although no case has addressed the precise issue, several older appellate-court cases, in interpreting a former version of the Syringes Act, have held that other categories of persons similar to those identified in the current Syringes Act are exceptions to, as opposed to descriptions of, the offense. In People v. Miller , 30 Ill. App. 3d 643, 332 N.E.2d 440 (1975), the court held that the State was required to charge and prove only possession and that a defendant had the burden to prove that he fell within the category of persons excepted under the statute. Miller , 30 Ill. App. 3d at 645, 332 N.E.2d 440 (citing People v. Phillips , 30 Ill. 2d 158, 160, 195 N.E.2d 717 (1964) ). Similarly, in People v. Harper , 35 Ill. App. 2d 247, 182 N.E.2d 379 (1962), the court held that an indictment charging a defendant with unlawful possession of a hypodermic syringe was sufficient and need not allege further that the defendant was not a physician or any other person excepted from prosecution under the statute. Thus, Miller and Harper further support our conclusion that section 1(b) creates an exception to, as opposed to a description of, the offense of possessing a hypodermic syringe.

¶ 19 Our conclusion is further supported by a recent appellate-court decision. In People v. Brace , 2017 IL App (4th) 150388, 414 Ill.Dec. 130, 79 N.E.3d 765, the defendant was charged with unlawful possession...