Appeal from the Circuit Court of Cook County; the Hon. Romie
J. Palmer, Judge, presiding.
PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty in a jury trial of distribution of look-alike substances (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(b)) and was sentenced to 30-months' probation and fined $5,000 plus costs. Defendant appeals his conviction.
At trial, John Carey, an investigator for the Illinois Attorney General's office, testified that on October 27, 1982, he went with a partner to defendant's company, Midwestern Wholesale Supply Company (MWS) located at 311 North Des Plaines Avenue, Chicago. Carey met with defendant and Brian Bolggess at MWS.
Carey asked defendant if he had any of the big black capsules he had advertised in Hustler magazine. That advertisement referred to the capsules as "body stimulants." Defendant replied he sold the capsules for $50 per thousand. Carey told defendant he would take a thousand of the big black capsules.
Defendant went into a back room. When he returned, he filled out a receipt and gave Carey a bottle of black capsules. The label on the bottle indicated it was manufactured for MWS, 311 North Des Plaines, Office 101, Chicago. It was marked "Decongestant Capsules," stated the ingredients of the capsules, and contained some warnings. Mr. Carey paid defendant $53.50 for the bottle. Defendant said he appreciated the business and hoped he would see Carey again soon.
Later that same day, Carey and several law enforcement officials returned to MWS and executed a search warrant and two arrest warrants. These individuals took photographs of defendant's business premises, including shelves holding bottles of substances, and confiscated other substances and documents. Of this evidence, several of the photographs, two books, a lease, and two boxes containing pills were introduced by the State at trial.
Dr. Jorge Pirl, Assistant Chief Toxicologist for the Illinois Department of Public Health, testified at trial that he had performed an analysis of the capsules purchased by Carey. This analysis revealed that the capsules contained caffeine and phenylpropanolamine. Caffeine stimulates the central nervous system, and phenylpropanolamine acts as both a decongestant and a stimulant. He had performed an analysis of the contents of one of the capsules seized by Carey, and they also contained caffeine and phenylpropanolamine.
Dr. Pirl identified an amphetamine capsule and testified that it was a controlled substance. On cross-examination, he testified that not all amphetamines are black, that the capsule purchased by Carey and the amphetamine had different markings, and that the capsule purchased by Carey was larger.
Barry Kelter, an investigator for the Illinois Attorney General's office, testified that he went to MWS with Carey on October 27, 1982, and waited outside when Carey entered MWS at about 10:30 a.m. Around 4:30 p.m. he went back to MWS with other individuals and served a search warrant. He identified various pictures taken on the premises.
Laureen Morrison, a law clerk in the Attorney General's office, testified that she examined eight boxes of documents seized at MWS.
The defendant did not testify or present any evidence.
On appeal, defendant urges that the trial court erred in denying his motion to dismiss the indictment. Defendant styles his first contention under this argument as challenging the definition of look-alike substances in the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1102(z)), on the grounds that it is unconstitutionally vague in violation of the fourteenth amendment and article I, section 2, of the Illinois Constitution. However, defendant also challenges as unconstitutionally vague section 404 of the Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1404). Among other things, this section prohibits the knowing distribution of a look-alike substance.
• 1 We find that defendant's challenge fails because he was charged for conduct "clearly prohibited" by the statute. (People v. Greene (1983), 96 Ill.2d 334, 339, 450 N.E.2d 329, 331, citing Parker v. Levy (1974), 417 U.S. 733, 41 L.Ed.2d 439, 94 S.Ct. 2547.) In the instant case, defendant was charged with knowingly distributing a look-alike substance. Since knowledge of the law is presumed (Reed v. Albanese (1966), 78 Ill. App.2d 53, 59, 223 N.E.2d 419, 423), the defendant cannot complain he was without notice of the law. After a trial on the merits, the jury found the defendant knowingly distributed capsules that looked like amphetamines. Since this unlawful conduct falls within the statute's proscription, defendant has no standing to challenge the statute on the grounds of vagueness.
The defendant denies that his conduct was clearly prohibited, and contends that his challenge has merit because he merely sold Carey a bottle of capsules identified as decongestants containing caffeine and phenylpropanolamine. Defendant refers us to the case of People v. Matkovick, citing it for the proposition that "vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." People v. Matkovick (1984), 101 Ill.2d ...