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People v. Biers





APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.


Defendant Ronald Biers appeals from convictions of calculated criminal drug conspiracy, unlawful delivery of more than 500 grams of a substance containing cannabis, and unlawful possession of more than 500 grams of a substance containing cannabis. Following a jury trial, which resulted in the convictions, defendant was sentenced by the circuit court of Will County to concurrent terms in the penitentiary of from four to eight years on the conspiracy charge and from two to six years on the cannabis charges.

On appeal in this court, defendant contends that the trial court erred in instructing the jury that it was only necessary that one of the members of the underlying conspiracy obtain more than $500 therefrom in order to convict defendant of calculated criminal drug conspiracy. It is also contended that the evidence was insufficient to support the conviction of such charge. Defendant also contends that his convictions of unlawful delivery and possession of cannabis were not adequately established in absence of proof that the plant material involved was not among those specifically exempted from the proscription of the statute. He also contends that section 16 of the Cannabis Control Act, which relieves the State of the burden of proving beyond a reasonable doubt one of the crucial elements necessary to establish violation of the Act, is violative itself of the due process clause of the fourteenth amendment to the Federal Constitution. It is additionally contended that the trial court erred in not instructing the jury with respect to the question of whether or not the cannabis delivered by defendant was actually that proscribed by the statutes involved.

Defendant Ronald Biers was indicted with three others on the drug conspiracy charges, and, also, of delivering a controlled substance, cocaine, contrary to section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401). Defendant was also indicted for possession and delivery of marijuana in violation of sections 4(e) and 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 704(e) and 705(e)). One of the indicted defendants, Joseph Santina, "jumped" bail and was not brought to trial. The other three, including Biers, were found guilty on all counts. The trial court entered judgment on the conspiracy verdict and on both cannabis verdicts. The other two convicted defendants, James Holmes and Fred Toscano, filed a separate appeal which is being disposed of separately (41 Ill. App.3d 585, 353 N.E.2d 396).

The charges involved in the instant case stem from a controlled drug purchase which was arranged by police officers and narcotics agents. The agents first purchased cocaine from Santina and Biers at Santina's house on December 4, 1973. Thereafter, in another contact, in another transaction, which was arranged for December 23, 1973, the officers procured a search warrant for the Santina house in Steger, Illinois. On December 23, Agent Pavnica and Officer Kostelny went to the Santina house and met Biers and Santina there. The two undercover men negotiated the cocaine purchase, basically with Santina, and purchased an ounce for $1,250. They also offered to buy some marijuana, which Santina agreed to sell for $120 a pound. Biers produced two one-pound bags of marijuana referred to, and Pavnica and Kostelny left with the drugs after paying a total of $1,490.

As soon as Pavnica and Kostelny left the house they directed the waiting officers to execute the search warrant. Defendants were all arrested at such time. Toscano's wife, Debbie, was also arrested and charged with marijuana violations, but was found not guilty by the trial court in the same proceedings which resulted in the conviction of the other defendants.

Of the $1,490 in money which was left by the agent and police officer, $50 was found on the person of Biers. Toscano had an additional $180 and the remaining $1,260 was found on a dresser in the master bedroom of the house. All four defendants made statements to the police which, as a whole, suggested that Santina ran the cocaine operation with some help from Biers, who lived in the basement. It was also stated that Toscano had the marijuana, which Santina allowed him to sell there for a "cut of the action."

• 1 The State initially argues that Biers' appeal should be dismissed since he failed to file a written post-trial motion despite the State's objection to the oral motion that was made. Provisions for written post-trial motions are found in section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 116-1). That section, however, does not make it mandatory for the post-trial motions to be in writing. The practice in Illinois is that an oral post-trial motion can be made and preserves the grounds for review, unless the State's Attorney objects to the oral motion and requests that the grounds therefor be specified in writing. People v. Robinson, 21 Ill.2d 30, 37, 171 N.E.2d 11 (1960); People v. Prohaska, 8 Ill.2d 579, 582-83, 134 N.E.2d 799 (1956); People v. Flynn, 8 Ill.2d 116, 118-20, 133 N.E.2d 257 (1956); People v. Everett, 117 Ill. App.2d 411, 418, 254 N.E.2d 659 (1st Dist. 1969).

In the instant case, counsel for the defendants made an oral post-trial motion. While the State objected, it only objected on the ground that oral motions were not permitted under Illinois law. Defense counsel disputed that argument, and the trial court accepted the oral motions without further objection from the State. It does not appear that the State's objection was based on a desire to require the defendants to specify their grounds for a new trial, nor did the State make an objection on the grounds of lack of specificity, once the trial court indicated that an oral motion would be permissible. On the basis of the procedure in the trial court, therefore, we do not believe it would be proper to dismiss the appeal on the sole ground of lack of a written post-trial motion.

Defendant, on the first principal argument, contends that the jury was improperly instructed concerning the offense of calculated criminal drug conspiracy and that the evidence was insufficient to support a guilty verdict thereon as against defendant.

The conspiracy statute involved provides:

"For purposes of this section, a person engages in a calculated criminal drug conspiracy when;

(1) he violates any of the provisions [relating to manufacture, delivery or possession of ...

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