People v. Monteleone

2018 IL App (2d) 170150

112 N.E.3d 637

PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.John G. MONTELEONE, Defendant–Appellant.

No. 2–17–0150

Appellate Court of Illinois, Second District.

Opinion filed June 28, 2018

Richard Dvorak and Christopher A. Tinsley, of Dvorak Law Offices, LLC, of Willowbrook, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, David J. Robinson, and David A. Bernhard, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

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

¶ 1 On three separate occasions beginning in July 2013, an undercover police officer purchased commercially packaged products, known as "Mary Joy" and "Mary Joy Dead and Berried," from the King Puff–N–Stuff smoke shop owned by defendant, John G. Monteleone. The ingredient list on the packages did not include any illegal substances, but lab results revealed that the products contained lab-manufactured chemical compounds frequently referred to as synthetic cannabinoids, which are illegal controlled substances. The State charged defendant by indictment with several counts and, following a bench trial, defendant was found guilty of six counts. Defendant appeals his convictions of delivery of a controlled substance and unlawful possession with intent to deliver a controlled substance. To convict a defendant of these offenses, the State must prove, inter alia , that the defendant knew that the substance was illegal. Defendant admits that he possessed and sold the products, but he contends that the State failed to prove beyond a reasonable doubt that he knew that the products contained an illegal substance. We affirm.

¶ 2 I. FACTS

¶ 3 Defendant's charges included three counts of delivery of a controlled substance (counts V, VI, and VII), two counts of possession with intent to deliver a controlled substance (counts I and III), two counts of possession of a controlled substance (counts II and IV), one count of possession of cannabis (count VIII), and one count of possession of drug paraphernalia (count IX). Except for counts VIII and IX, the counts alleged that defendant sold and possessed an amount of a "substance containing 1–Pentyl–3–(2,2,3,3 tetramethylcyclopropyl) indole (UR–144), 1–(5–fluoropentyl)–3–(2,2,3,3 tetramethylcyclopropyl) indole (XLR–11), a controlled substance analog that has a chemical structure substantially similar to that of the controlled substance JWH–018." See 720 ILCS 550/4(b) (West 2012); 720 ILCS 570/401(a)(11), (c)(11), (d), 402(a)(11), (c) (West 2012); 720 ILCS 600/3.5(a) (West 2012).

¶ 4 The following relevant facts were taken from the trial. Scott Torkleson, the undercover police officer, entered defendant's store on July 16, 2013. The store displayed digital scales, smoking pipes, bongs, vaporizers, and tobacco products in glass cases and on the walls. Torkleson asked if defendant had any Mary Joy for sale. Defendant responded that he did and that another person, who had just entered the store, also was there to purchase Mary Joy. Defendant went to an office in the back of the store for a few minutes and then called the other person to the office. After a short period, that person left the store, carrying cash in his hand. Defendant then called Torkleson to the office. Defendant showed him a small green and purple package labeled "Mary Joy" and told Torkleson that it would cost $15. Torkleson paid defendant with a $20 bill. Defendant did not use the cash register or give Torkleson a receipt. Torkleson asked if he could return and buy more if he liked it, and defendant responded "absolutely." Defendant gave him a business card on his way out.

¶ 5 Torkleson later called defendant and told him that he wanted to purchase more Mary Joy and defendant said that he would meet him at the store. When Torkleson returned to the store, on July 25, 2013, defendant stated that he had only one package of Mary Joy but that he also had Mary Joy Dead and Berried. Defendant told Torkleson that he should be careful with it because it was very strong; that it would "knock him on his ass." Defendant and Torkleson walked to the back office. Torkleson saw defendant take the Mary Joy and the Dead and Berried out of an open safe that contained money. Torkleson then purchased the two packages from defendant, with cash. As before, defendant did not ring up the purchase or give Torkleson a receipt. Before he left, Torkleson asked defendant about purchasing cannabis, and defendant said that he could take care of him.

¶ 6 On September 19, 2013, Torkleson conducted another undercover buy from defendant. When he entered the store, defendant asked if he was there to purchase some Mary Joy. Torkleson said yes and they went to the back office. Torkleson saw defendant take the Mary Joy out of the safe before he handed it to him. Defendant did not ring up the $15 purchase or give Torkleson a receipt. Torkleson never saw Mary Joy displayed or advertised in the public area of the store.

¶ 7 Torkleson testified that, based on his training, he knew that none of the ingredients listed on the back of the Mary Joy package was an illegal substance. The ingredient list for Dead and Berried was identical to that for Mary Joy. The package itself was a manufactured container, not a baggie.

¶ 8 Virgil Schroeder, a master sergeant with the Illinois State Police, testified that on September 25, 2013, search and arrest warrants were served on defendant in his store. Defendant gave Schroeder the combination to his safe and told him that there was some "Spice" in it. "Spice" is a generic term for various synthetic cannabinoids. Schroeder found two plastic bag bundles containing both types of Mary Joy in the safe. He found no other packages of either kind of Mary Joy in the rest of the store. He did find a pipe that appeared to have been used to smoke some kind of substance. When Schroeder went to defendant's residence, he saw defendant's wife, Tracy, in her car and noticed two large overflowing tubs of Mary Joy and Dead and Berried in her back seat. In total, there were 3295 packages of Mary Joy.

¶ 9 Master Sergeant William Backus assisted in executing the warrant. Defendant told him "I no longer sell drugs here anymore. I just have a little weed." Another officer searched defendant and found a small amount of cannabis.

¶ 10 Sara Anderson, a forensic drug chemistry expert who worked at the Illinois State Police forensic science laboratory, received a bag of plant material on August 6, 2013. Using several techniques, including a gas chromatograph mass spectrometer, she determined that the plant material contained XLR–11 and UR–144. It did not contain JWH–018.

¶ 11 Martin Skelcy, another forensic drug chemistry expert employed by the State Police, analyzed the material and found that it contained XLR–11 and UR–144. He also weighed and tested the bin full of Mary Joy packages. The bin contained 209 grams of Mary Joy, and the plant material in the packages contained XLR–11 and UR–144.

¶ 12 Greg Endres, who was qualified as an expert in the field of medicinal and forensic chemistry, identified chemical diagrams of both tetrahydrocannabinol (THC), the active ingredient in cannabis, and JWH–018. JWH–018's structure has some similarity to THC, primarily because it binds to cannabinoid receptors in the human body. This binding is responsible for the psychotropic effects of cannabis and synthetic cannabinoids. Synthetic cannabinoids have more serious adverse effects on the body and tend to continually increase in effect with dosage. "K2" and "Spice" are two early and predominant brand names of an herbal mixture that has been sprayed with synthetic cannabinoids. Endres noted that synthetic cannabinoids have dozens of brand names, which are constantly changing. He frequently referred to all synthetic cannabinoids as K2. He also noted that new, slightly distinct compounds are designed and marketed to avoid criminal liability. Endres concluded that UR–144 and XLR–11 are substantially similar to JWH–018, falling within the same subclassification of indole-based synthetic cannabinoids. In drug-discrimination tests, mice were not able to discriminate between XLR–11 or UR–144 and THC or JWH–018. He testified that, within a reasonable degree of scientific certainty, XLR–11 and UR–144 are analogs of JWH–018. Endres testified that new synthetic cannabinoids are created by chemists to be similar to existing ones but not specifically banned by statute. XLR–11 and UR–144 were not specifically banned by federal statute until May 2013. Under Illinois law, they are illegal based on the analog statute, but there are synthetic cannabinoids that are not illegal.

¶ 13 Jeffrey Moran, an expert in the field of synthetic-cannabinoid pharmacology, metabolism, and detection, testified that JWH–018 is a controlled substance under both federal and Illinois law. He stated that XLR–11 and UR–144 are substantially similar to JWH–018, and he opined that they are analogs of JWH–018.

¶ 14 Jeff File, an Illinois State Police officer, searched the King Puff–N–Stuff after other officers executed the search warrant on the business. He did not find any Mary Joy or other illegal substances in the main customer area. He also searched the glass case on the counter and did not find any Mary Joy or empty Mary Joy packages or any sign that it was for sale.

¶ 15 File also interviewed defendant. Defendant stated that he had about 85 packages of Mary Joy and between 35 and 40 packages of Dead and Berried in his safe in the back room of his store. Defendant stated that he had a number of suppliers whose full names he did not know and that people who purchased the product rolled it into blunts and seemed to get addicted to it. Defendant stated that he used it once and got a head rush but that it did not get him high. He believed that Mary Joy was illegal under federal law, though he was not sure about Illinois, and thus he kept it in the...