FILED 2016 IL App (4th) 140995 October 25, 2016 Carla Bender NO. 4-14-0995 4th District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Adams County TODD L. LAWS, ) No. 14CF232 Defendant-Appellant. ) ) Honorable ) Scott H. Walden, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Appleton concurred in the judgment and opinion.
OPINION
¶1 Defendant, Todd L. Laws, had a 2010 conviction for unlawful possession of
methamphetamine. He now appeals his November 2014 conviction for unlawful possession of
methamphetamine precursors in violation of section 120(a) of the Methamphetamine Control and
Community Protection Act (Act) (720 ILCS 646/120(a) (West 2012)). On appeal, defendant
argues the State failed to prove he knowingly purchased, owned, or otherwise possessed a
product he knew to contain a methamphetamine precursor on November 18, 2013. The State
argues it met its burden of proof because the statute requires the State to prove only knowledge
of possession and not knowledge the substance contains a methamphetamine precursor. We
affirm. ¶2 I. BACKGROUND
¶3 During a stipulated bench trial on November 13, 2014, defendant was found
guilty of one count of unlawful possession of methamphetamine precursors in violation of
section 120(a) of the Act (Id.), a Class 4 felony. Pursuant to a negotiated agreement between
defendant and the State, the court sentenced defendant to two years in prison and one year of
mandatory supervised release.
¶4 Section 120(a) of the Act reads:
“Whenever any person pleads guilty to, is found guilty of, or is
placed on supervision for an offense under this Act, in addition to
any other penalty imposed by the court, no such person shall
thereafter knowingly purchase, receive, own, or otherwise possess
any substance or product containing a methamphetamine precursor
as defined in Section 10 of this Act, without the methamphetamine
precursor first being prescribed for the use of that person in the
manner provided for the prescription of Schedule II controlled
substances under Article III of the Illinois Controlled Substances
Act.” Id.
A person convicted under section 120(a) is guilty of a Class 4 felony. 720 ILCS 646/120(b)
(West 2012). Pseudoephedrine is a methamphetamine precursor as defined by the Act. 720 ILCS
646/10 (West 2012).
¶5 Prior to trial, defendant challenged the constitutionality of section 120(a) of the
Act (720 ILCS 646/120(a) (West 2012)) in a motion to dismiss, arguing the statute violates the
-2- due process clauses of both the Illinois Constitution and the United States Constitution.
Defendant argued because the statute does not require “a culpable mental state beyond mere
knowledge,” it creates the potential for subjecting wholly innocent conduct to criminal
punishment. In sum, defendant made an overbreadth argument. In support, defendant cited
People v. Madrigal, 241 Ill. 2d 463, 948 N.E.2d 591 (2011), which held unconstitutional a
statute relating to identity theft because the statute did not contain a culpable mental state beyond
mere knowledge, resulting in the potential for criminal punishment of wholly innocent conduct.
Id. at 479, 948 N.E.2d at 600. The Madrigal court noted several cases striking down statutes as
unconstitutional for the same reason. Id. at 467-68, 948 N.E.2d at 594 (citing People v.
Carpenter, 228 Ill. 2d 250, 888 N.E.2d 105 (2008); People v. Wright, 194 Ill. 2d 1, 740 N.E.2d
755 (2000); In re K.C., 186 Ill. 2d 542, 714 N.E.2d 491 (1999); People v. Zaremba, 158 Ill. 2d
36, 630 N.E.2d 797 (1994); People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676 (1985)). In these
cases, the courts determined there was no rational relationship between the statute and the
legislative purpose because the risk of subjecting wholly innocent conduct to criminal
punishment attenuated the relationship, rendering the statute overbroad and therefore
unconstitutional. E.g., Madrigal, 241 Ill. 2d at 467-68, 474, 948 N.E.2d at 594, 598.
¶6 The State countered defendant’s constitutional argument by analogizing section
120(a) of the Act to rules preventing felons from possessing a firearm or ammunition (720 ILCS
5/24-1.1 (West 2014)) or from voting while imprisoned (Ill. Const. 1970, art. III, § 2). The State
argued section 120(a) of the Act, like the statute preventing felons from possessing a firearm or
ammunition, merely limits a specific privilege to a limited class of citizens who have
demonstrated a proclivity to abuse the privilege. The State also noted the prescription exception
-3- contained in section 120(a) is a further limitation on the statute’s applicability, which weighs in
favor of rationality. The State argued the relationship between the statute and the legislative
objective was not attenuated in this case because these limitations prevent punishment of wholly
innocent conduct. The court rejected defendant’s constitutional argument and denied defendant’s
motion to dismiss, and the case proceeded to a stipulated bench trial.
¶7 The stipulated facts presented at the trial follow. The National Precursor Log
Exchange (NPLEx) indicated that, on November 18, 2013, defendant purchased 12-hour
Sudafed, a product containing pseudoephedrine, at a drugstore in Adams County. Surveillance
footage showed a man purchasing the Sudafed, and Officer James Brown of the West Central
Illinois Task Force would have identified defendant as the man in the surveillance footage. An
employee of the drugstore would have testified if a person had a doctor’s prescription to
purchase a product containing pseudoephedrine, or any other methamphetamine precursor, the
purchase would not appear in the NPLEx logs, which indicates defendant did not have a
prescription to purchase Sudafed on November 18, 2013. Finally, the State would have
introduced a certified copy of defendant’s October 2010 conviction for unlawful possession of
methamphetamine in violation of section 60(a) of the Act (720 ILCS 646/60(a) (West 2008)).
Based upon this evidence, the trial court found defendant guilty of unlawful possession of a
methamphetamine precursor in violation of section 120(a) of the Act (720 ILCS 646/120(a)
(West 2012)) and concurred in the negotiated sentence of two years in prison and one year of
mandatory supervised release. This appeal followed.
-4- ¶8 II. ANALYSIS
¶9 On appeal, defendant expressly states in his reply brief he does not challenge the
constitutionality of section 120(a), but argues the statute must be read to require “criminal
knowledge” because interpreting the statute to require mere knowledge could subject wholly
innocent conduct to criminal punishment. Defendant also argues the proper construction of the
statute requires both knowledge of possession and knowledge the substance contains a
methamphetamine precursor. Defendant argues this dual-pronged knowledge requirement would
satisfy a showing of the criminal knowledge he asserts is required by the statute. Defendant
claims, because the stipulated facts did not establish he had a criminal purpose for the Sudafed or
actual knowledge Sudafed contained a methamphetamine precursor, the State did not meet its
burden to convict under the Act. Finally, defendant argues our court system disfavors
interpreting statutes to impose absolute liability absent a clear intention by the legislature, which
he asserts supports his argument the Act requires criminal knowledge rather than mere
knowledge. According to defendant, interpreting the statute to require mere knowledge as
opposed to criminal knowledge would result in an absolute liability statute because it would
create the potential for criminal punishment of wholly innocent conduct.
¶ 10 The State argues the court should enforce the statute as written when the
legislature clearly provides a mental state. The statute here expressly prohibits “knowingly
purchas[ing], receive[ing], own[ing], or otherwise possess[ing]” a methamphetamine precursor.
(Emphasis added.) 720 ILCS 646/120(a) (West 2012). Therefore, the State argues mere
knowledge, as opposed to criminal knowledge, is the requisite mental state for this crime. In
response to the statutory construction argument, the State notes an offense typically consists of
-5- an act committed with a culpable mental state, and the act here is possession, which must be
done knowingly. Accordingly, the State’s construction of the statute requires application of the
mens rea element only to the possessory element of the crime. Because knowledge of possession
was sufficient to convict, the State argues it met its burden. The State agrees section 120(a)
should not be read to impose absolute liability because the statute expressly requires a knowing
mental state. Finally, the State maintains section 120(a) of the Act is constitutional because the
statute is a rational means of promoting the legislative objective of reducing methamphetamine
manufacture and abuse. The limited class of persons regulated by this statute (i.e., those
previously convicted of methamphetamine crimes), coupled with the prescription exception,
sufficiently limits the applicability of the statute so as to prevent criminal punishment of wholly
innocent conduct. These limitations, the State argues, maintain the statute’s rational relationship
to the legislative purpose and therefore its constitutionality.
¶ 11 Defendant maintains we must read into the statute criminal knowledge as opposed
to applying the mental state expressly provided by the legislature. Defendant asserts we need not
reach a constitutional analysis because the statute can be construed so as to preserve its
constitutionality by requiring criminal knowledge, which would, in turn, require both knowledge
of possession and knowledge the substance contains a methamphetamine precursor. Defendant
appears to muddle his arguments. Reading the requirement of criminal knowledge into the statute
is not the same as construing the express language of the statute to require the dual-pronged
knowledge for which he advocates. Criminal knowledge is a mental state requiring both
knowledge and criminal or devious intent. People v. Tolliver, 147 Ill. 2d 397, 400-01, 589
N.E.2d 527, 529 (1992). As will be discussed more fully infra, the instances where criminal
-6- knowledge has been read into a statute are those where the court is preserving the
constitutionality of the statute in question. Thus, despite defendant’s contentions to the contrary,
we conclude he has presented two separate arguments: (1) a statutory construction argument and
(2) an argument to read criminal knowledge into section 120(a) of the Act, which is a
constitutional argument.
¶ 12 A. Standard of Review
¶ 13 Questions of law, statutory construction, and constitutionality are reviewed
de novo. People v. Molnar, 222 Ill. 2d 495, 508, 857 N.E.2d 209, 217 (2006). Statutes are
presumed constitutional and should be interpreted so as to uphold constitutionality where
possible. Id. Additionally, the Illinois Supreme Court has repeatedly held courts should attempt
to resolve cases on nonconstitutional grounds before considering constitutionality. In re E.H.,
224 Ill. 2d 172, 178, 863 N.E.2d 231, 234 (2006). Accordingly, we will consider defendant’s
statutory construction argument prior to proceeding to his argument asserting section 120(a)
requires criminal knowledge as opposed to mere knowledge.
¶ 14 B. Statutory Construction
¶ 15 We begin our analysis by considering whether section 120(a) of the Act requires
knowledge of both possession and the presence of a methamphetamine precursor or merely
knowledge of possession.
¶ 16 1. Construction of Section 120(a)
¶ 17 Our supreme court has explained:
“The cardinal rule of statutory construction is to ascertain
and give effect to the true intent of the legislature. [Citation.] The
-7- best evidence of legislative intent is the language used in the
statute itself, which must be given its plain and ordinary meaning.
[Citations.] The statute should be evaluated as a whole, with each
provision construed in connection with every other section.
[Citation.] If legislative intent can be ascertained from the statute’s
plain language, that intent must prevail without resort to other
interpretive aids. [Citation.]” Paris v. Feder, 179 Ill. 2d 173, 177,
688 N.E.2d 137, 139 (1997).
¶ 18 The purpose of the Act “is to reduce the damage that the manufacture,
distribution, and use of methamphetamine are inflicting on children, families, communities,
businesses, the economy, and the environment in Illinois.” 720 ILCS 646/5 (West 2012). The
statutory language of section 120(a) prohibits individuals previously convicted under the Act
from “knowingly purchas[ing], receiv[ing], own[ing], or otherwise possess[ing] any substance or
product containing a methamphetamine precursor.” 720 ILCS 646/120(a) (West 2012). The
legislature undoubtedly intended to regulate the possession of methamphetamine precursors by
individuals who have a prior conviction of a methamphetamine crime.
¶ 19 Turning to the plain meaning of the relevant word chosen by our legislature, our
supreme court has stated “knowledge,” as a criminal mens rea, means conscious awareness of
facts making a person’s conduct unlawful. People v. Gean, 143 Ill. 2d 281, 288, 573 N.E.2d 818,
822 (1991). We note the meaning assigned does not require awareness one’s conduct is
unlawful; the meaning requires only awareness of the facts.
¶ 20 Defendant argues the proper construction of the statute requires the State to show
-8- both knowledge of possession and knowledge the substance contains a methamphetamine
precursor. To support this argument, defendant cites Tolliver and People v. DePalma, 256 Ill.
App. 3d 206, 627 N.E.2d 1236 (1994), which discuss the constitutionality of the statutes in
question, not the construction of the plain language contained in those statutes. Defendant also
asserts that failure to require knowledge that the substance contains a methamphetamine
precursor would render the statute an absolute liability offense because it would create the
potential for criminal punishment of wholly innocent conduct. However, defendant’s assertion
regarding the potential punishment of wholly innocent conduct is a constitutional argument, not a
statutory construction argument. The potential punishment of wholly innocent conduct does not
render a statute an absolute liability crime; it would render the statute overbroad and therefore
unconstitutional. “An absolute liability offense is one which does not require a culpable mental
state as an element.” People v. Studley, 259 Ill. App. 3d 556, 559, 631 N.E.2d 839, 841 (1994).
Section 120(a) undoubtedly requires knowledge, a mental state, as an element; therefore, this
argument is without merit.
¶ 21 The State argues the proper construction of the statute only requires knowledge of
possession. In support, the State cites People v. Ivy, 133 Ill. App. 3d 647, 479 N.E.2d 399 (1985);
People v. Stanley, 397 Ill. App. 3d 598, 921 N.E.2d 445 (2009); and People v. Wright, 140 Ill.
App. 3d 576, 488 N.E.2d 1344 (1986). In Ivy, the court considered whether the State was
required to prove the defendant had knowledge of a weapon’s illicit nature or character to
convict the defendant of unlawful possession of a “sawed-off” shotgun (Ill. Rev. Stat. 1981, ch.
38, ¶ 24-1(a)(7)). The court stated:
-9- “We are aware of no other case involving the issue of
whether the knowledge element *** may be satisfied by showing
knowledge of the presence of a weapon which later proves to be
illegal or whether it is necessary to show that the defendant had
knowledge of the status and character of the illegal weapon. As
pointed out by the State, it is well settled that one is presumed to
know the law and that ignorance of the law is no excuse.
[Citations.] *** Since it is ‘knowing possession’ of an illegal
object that is proscribed by statute, the State was not required to
prove that the defendant knew her possession was illegal but only
that she knew she possessed the object in question.” Ivy, 133 Ill.
App. 3d at 652-53, 479 N.E.2d at 403.
Stanley upheld Ivy, concluding the mens rea element only applied to the possessory element of
unlawful possession of a “sawed-off” shotgun and not to whether the defendant actually knew
the weapon was defaced or altered. Stanley, 397 Ill. App. 3d at 607-09, 921 N.E.2d at 452-54;
see also 720 ILCS 5/24-5(b) (West 2006) (the statute interpreted by the Stanley court). Similarly,
Wright considered a statute prohibiting “knowingly *** possess[ing] *** any weapon made from
a shotgun *** if such weapon *** has *** a barrel length of less than 18 inches.” Ill. Rev. Stat.
1983, ch. 38, ¶ 24-1(a)(7). The Wright court determined the statute did not require the defendant
to actually know the barrel of such a weapon was less than 18 inches; rather, the statute only
required the defendant to know he or she possessed the weapon in question. Wright, 140 Ill. App.
3d at 582, 488 N.E.2d at 1348. In sum, these courts held the mens rea element applies only to the
- 10 - possessory element and not to the illegal nature or character of the contraband.
¶ 22 We agree with these cases, which are consistent with interpretations of knowing
possession throughout our jurisprudence as well as the definition of “knowledge” supplied by
our supreme court in Gean. For example, with respect to unlawful possession of a controlled
substance, the State bears the burden of proving the defendant knew he or she possessed and had
control over the contraband; the State need not prove the defendant had knowledge of the
substance’s illegal nature. See People v. Givens, 237 Ill. 2d 311, 335, 934 N.E.2d 470, 484
(2010). With respect to unlawful possession of a firearm by a felon, the State bears the burden of
proving the defendant knew he or she possessed a firearm and he or she had a prior felony
conviction; the State need not prove the defendant had knowledge he or she was prohibited from
possessing the firearm because of the prior felony conviction. See People v. Hester, 271 Ill. App.
3d 954, 956, 649 N.E.2d 1351, 1354 (1995). Requiring the State to prove the defendant knew the
illegal nature or character of his or her act is simply requiring the defendant to know the law,
which is knowledge we impute to all defendants regardless of the crime in question. We
determine section 120(a) of the Act (720 ILCS 646/120(a) (West 2012)) requires the State to
show the defendant knew he or she possessed a substance containing a methamphetamine
precursor.
¶ 23 An individual who purchases medication containing a methamphetamine
precursor is on notice the medication contains the precursor because the ingredients are listed on
the box or bottle containing the medication. The argument an individual is unaware a particular
substance is a methamphetamine precursor is a mistake of law claim, which is no defense. Even
if we interpreted the statute to require knowledge a methamphetamine precursor is contained in
- 11 - the substance possessed, defendant’s argument he was unaware Sudafed contained
pseudoephedrine or unaware pseudoephedrine was a methamphetamine precursor would
necessarily fail.
¶ 24 2. Application of Section 120(a) to Defendant’s Case
¶ 25 We determine the stipulated evidence was sufficient to convict defendant for one
count of unlawful possession of methamphetamine precursors in violation of section 120(a) of
the Act (720 ILCS 646/120(a) (West 2012)). When reviewing a criminal case on appeal, the
relevant question is whether a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt as to each element of the crime in question. People v. Davison, 233
Ill. 2d 30, 43, 906 N.E.2d 545, 553 (2009). Section 120(a) required the State to have proved
defendant was consciously aware he possessed a substance containing a methamphetamine
precursor on November 18, 2013. See 720 ILCS 646/120(a) (West 2012). Additionally, the State
needed to have shown defendant had a prior conviction under the Act. Id.
¶ 26 The stipulated facts at trial establish, on November 18, 2013, defendant purchased
12-hour Sudafed, a product containing the methamphetamine precursor pseudoephedrine. By
physically purchasing the Sudafed and taking it with him from the drugstore, we can infer
defendant was consciously aware he was in possession of the Sudafed. Additionally, the
stipulated facts established defendant had a prior conviction for methamphetamine possession in
violation of section 60(a) of the Act (720 ILCS 646/60(a) (West 2008)). A reasonable trier of
fact could have found defendant guilty beyond a reasonable doubt for each element of unlawful
possession of a methamphetamine precursor as defined in section 120(a) of the Act (720 ILCS
646/120(a) (West 2012)).
- 12 - ¶ 27 Defendant argues the State failed to prove him guilty beyond a reasonable doubt
because the State did not present evidence showing he knew Sudafed contained a
methamphetamine precursor. However, notwithstanding the fact defendant should have known
Sudafed contained pseudoephedrine, his argument fails because we have decided knowledge the
substance possessed contains a methamphetamine precursor is not required by section 120(a).
Accordingly, we find the State met its burden and decline to reverse the trial court’s judgment.
¶ 28 C. Criminal Knowledge
¶ 29 Having first considered defendant’s nonconstitutional arguments and determining
those arguments do not afford defendant the relief he seeks, we now turn to defendant’s
argument asserting criminal knowledge must be read into section 120(a) of the Act.
¶ 30 As previously stated, criminal knowledge has been read into a statute only where
the court is preserving the constitutionality of the statute in question. Indeed, the two cases
defendant cites in support of this argument present the question of constitutionality. See
DePalma, 256 Ill. App. 3d at 207, 627 N.E.2d at 1237 (challenging the constitutionality of
section 4-103(a)(4) of the Illinois Vehicle Code (625 ILCS 5/4-103(a)(4) (West 1992)));
Tolliver, 147 Ill. 2d at 399, 589 N.E.2d at 528 (challenging the constitutionality of section
104(a)(2) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, ¶ 4-104(a)(2))).
¶ 31 In Tolliver, the statute in question contained no express mental state, but the
statute in DePalma did contain a knowing mental state. See Ill. Rev. Stat. 1989, ch. 95½, ¶ 4-
104(a)(2) (Tolliver statute); 625 ILCS 5/4-103(a)(4) (West 1992) (DePalma statute). In these
cases, the courts concluded the requirement of mere knowledge was not sufficiently rationally
related to the legislative purpose at hand, thereby violating due process. E.g., Tolliver, 147 Ill. 2d
- 13 - at 399-403, 589 N.E.2d 528-30. The courts reached this conclusion because mere knowledge
absent a criminal purpose created the potential for criminal punishment of wholly innocent
conduct (i.e., conduct unrelated to the legislative purpose of the statute and devoid of criminal or
devious intent). E.g., id. at 401-03, 589 N.E.2d at 529-30; see also DePalma, 256 Ill. App. 3d at
211, 214, 627 N.E.2d at 1239, 1241 (defining wholly innocent conduct). This potential
attenuated the relationship between the statute and the legislative intent so as to render the
relationship irrational and the statute overbroad. Tolliver, 147 Ill. 2d at 401-03, 589 N.E.2d at
529-30; DePalma, 256 Ill. App. 3d at 214, 627 N.E.2d at 1241. Therefore, a showing of criminal
knowledge was necessary to preserve the constitutionality of the statutes in question, and the
courts read criminal knowledge into the statutes to that effect. Tolliver, 147 Ill. 2d at 403, 589
N.E.2d at 530; DePalma, 256 Ill. App. 3d at 214, 627 N.E.2d at 1241.
¶ 32 Pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016), points not
argued in appellant’s brief are forfeited, as are claims not fully analyzed. See Bartlow v.
Costigan, 2014 IL 115152, ¶ 52, 13 N.E.3d 1216. Additionally, voluntary express relinquishment
of an available right or argument constitutes waiver. Buenz v. Frontline Transportation Co., 227
Ill. 2d 302, 320 n.2, 882 N.E.2d 525, 536 n.2 (2008). While defendant has provided law and
analysis on the issue of overbreadth and constitutionality, an issue properly preserved for appeal
at the trial, defendant expressly maintains he is not challenging the constitutionality of the statute
and has waived the issue.
¶ 33 Defendant asserts his argument that to read criminal knowledge into the statute
does not require a constitutional analysis. However, defendant’s argument rests on the premise
criminal knowledge is required to prevent criminal punishment of wholly innocent conduct—the
- 14 - exact constitutional argument outlined in Tolliver and DePalma. As discussed, the courts in
Tolliver and DePalma only reached the conclusion criminal knowledge was required after first
finding the statute unconstitutional as written. Because defendant has waived the issue of
constitutionality, we will not conduct the analysis necessary to consider whether the conclusion
he desires is warranted.
¶ 34 Nonetheless, defendant’s reliance on Tolliver and DePalma is misplaced. Rather,
this case would be controlled by Carpenter, 228 Ill. 2d 250, 888 N.E.2d 105, and Wright, 194 Ill.
2d 1, 740 N.E.2d 755. According to Carpenter and Wright, where the express language of a
statute provides a mental state, the court may not read into the statute a different or additional
culpable mental state. Carpenter, 228 Ill. 2d at 270-71, 888 N.E.2d at 117-18; Wright, 194 Ill. 2d
at 29-30, 740 N.E.2d at 769. The Wright court specifically distinguished Tolliver by stating: “In
Tolliver, we were able to imply the mental state of knowledge plus criminal purpose as an
element of section 4-104(a)(2) because that provision contained no mental state.” Wright, 194 Ill.
2d at 29, 740 N.E.2d at 769. The statute here expressly requires knowledge, which is a mental
state, as an element. Even if defendant had not waived the issue, we could not have read criminal
knowledge into section 120(a) regardless of whether we determined the statute was constitutional
as written. We also note our supreme court’s decisions in Wright and Carpenter call into doubt
the validity of DePalma because the DePalma court read criminal knowledge into that statute
despite the statute’s express inclusion of knowledge as the requisite mental state.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the trial court’s judgment. As part of our
judgment, we award the State its $50 statutory assessment against defendant as costs of this
- 15 - appeal. 55 ILCS 5/4-2002 (West 2014).
¶ 37 Affirmed.
- 16 -