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01/28/94 PEOPLE STATE ILLINOIS v. EMMANUEL BOOSE

January 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EMMANUEL BOOSE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 91-CF-2444. Honorable Victoria A. Rossetti, Judge, Presiding.

Released for Publication March 3, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Emmanuel Boose, was charged on December 11, 1991, with one count of unlawful possession of not more than five grams of cocaine, a controlled substance, with intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(c)(2) (now 720 ILCS 570/401(c)(2) (West 1992))), a Class 1 felony. The defendant was also charged with one count of unlawful possession of less than 15 grams of cocaine, a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS 570/402(c) West 1992))), a Class 4 felony. Following a jury trial, the defendant was convicted of the Class 4 possession charge and acquitted of possession with intent to deliver. This appeal followed, and we affirm.

The defendant's sole contention on appeal is that his conviction of possession should be reversed because the jury received an improper instruction on the elements of the charge. Our review of the record discloses that, although an improperly worded instruction was given, the error was harmless.

Some confusion obviously occurred at trial over the proper form of the instruction on issues in possession of a controlled substance. During the instructions conference at trial, the prosecution tendered the People's Instruction No. 15, which read:

"To sustain the charge of possession of a controlled substance when the substance containing the controlled substance weighed less than 15 grams, the State must prove the following proposition:

That the defendant knowingly possessed a substance containing cocaine, a controlled substance; and

That the weight of the substance possessed was less than 15 grams.

If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant not guilty." (Emphasis added.) Hereinafter People's No. 15.

The instruction was based on Illinois Pattern Jury Instruction Criminal 2d No. 17:13, which reads:

"To sustain the charge of possession of a [(controlled) (counterfeit)] substance [when the substance containing the [(controlled (counterfeit)] substance weighed more than grams], ...


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