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October 11, 1994


Appeal from the Circuit Court of Kane County. Nos. 91-CM-2236, 91-CM-2237. Honorable Timothy Q. Sheldon, Judge, Presiding.

Released for Publication November 16, 1994.


The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendants, James B. Feld and William S. Munson, appeal their convictions following a bench trial on two counts of violating the Drug Paraphernalia Control Act (Drug Act). (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 2101 et seq. (now 720 ILCS 600/1 et seq. (West 1992)).) For the following reasons, we reverse the convictions.

On April 18, 1991, police officers executed a search warrant at Grove Manufacturing, Inc. (Grove), in Sugar Grove, Illinois, which manufactures a variety of wood products. Pursuant to the warrant, the officers seized various items alleged to be drug paraphernalia, including empty wooden boxes with sliding tops and small wooden pipes. The boxes are made according to specifications provided by Contempo Products of Nashville, Tennessee, which fits the unfinished boxes with metal cylinders and sells them under the name Dugout Smoking System. No metal cylinders, smoking tubes or springs were found by the police at Grove's manufacturing plant. The finished boxes and the pipes made by Grove are alleged by the State to be used primarily for smoking cannabis.

On May 3, 1991, the defendants were charged with violating the Drug Act. Munson was the production manager for Grove; Feld was the general manager. The defendants pleaded not guilty on June 5, 1991. They then filed motions to suppress evidence, quash their arrests, and dismiss the complaints. The motions were denied on October 2, 1991, following a hearing. At the same time, the trial court ordered some of the property seized from Grove returned to the defendants. After further pretrial motions, the matter proceeded to a bench trial on March 15, 1993.

Former Sugar Grove police officer Bradley Sauer testified that he helped execute the warrant at Grove during which officers seized some 5,400 unfinished Dugout boxes. Sauer said he also confiscated a copy of "High Times" magazine, which allegedly is read by users of illicit drugs, as well as a catalog and mailing invoices.

Officer Gerald Lange testified that he interviewed the defendants and was told by Feld that he had not read "High Times." Lange said Munson told him he had "flipped through" the magazine but did not read it thoroughly. Lange also said he bought some finished Dugout boxes at a local retailer described as a "head shop," a business associated with the drug culture. Lange said that in his experience as a police officer, whenever he found a Dugout box, he found cannabis but never tobacco.

Officer Michael Sullivan said that in his experience wooden pipes of the type found at Grove were associated with illicit drugs.

Ken Raiser, a forensic chemist with the State Police, said that he often tested Dugout boxes for traces of drugs and that the boxes often tested positive for drugs but never for tobacco. Paul Titus, also a forensic scientist, offered testimony similar to Raiser's.

Douglas Needham testified as an expert in drug paraphernalia. He said that Dugout boxes were used to ingest illicit drugs and never tobacco. Officer Victor Fields also testified that Dugout boxes were used for drugs and not tobacco.

Charles Levi, a tobacco dealer, testified that the wooden pipes confiscated from Grove were not of a type suited to tobacco use because they were made of teakwood, which burns and scorches when tobacco is smoked in it. Levi said that tobacco pipes were more commonly made of briarwood, cherry wood, and the fossil mineral meerschaum because those materials did not scorch or burn when smoked with tobacco.

Levi said that he had never seen Dugout boxes in legitimate tobacco shops and that they were not suited to tobacco use because they hold too little smoking material. On cross-examination, Levi said that a tobacco industry magazine "Smokeshop" did carry advertisements for Dugout boxes and that the tobacco retailers association to which he belongs had a policy that prohibits display of drug paraphernalia.

Following the denial of a motion by Feld for a directed finding of not guilty at the close of the State's case, the defense offered the testimony of Stuart Silber, a long-time pipemaker and tobacconist, who said that the pipes and boxes at issue were suited to smoking tobacco and that he had seen them used with tobacco.

The defense also offered the videotaped deposition of tobacco expert Benjamin Rapaport. However, neither the videotaped deposition nor a verbatim transcript of that deposition was included in the record on appeal. As such, we may not consider it. People v. Thomas (1991), 220 Ill. App. 3d 110, 128, 163 Ill. Dec. 12, 580 N.E.2d 1353.

Defendant Feld testified, but Munson did not. Feld said that he had seen a promotional videotape made by Contempo to market the Dugout Smoking System. On cross-examination, Feld said that his firm made the unfinished wooden box and that he was aware that a metal cylinder was placed inside the box after it left his firm. Feld said that Grove had an interest in seeing that the Dugout boxes were marketed effectively.

The trial court found the defendants guilty. Each defendant was fined $3,000 and placed on one year of conditional discharge. Following unsuccessful motions to reconsider or for a new trial, the defendants appealed.

On appeal the defendants claim that (1) the Drug Act is unconstitutionally vague; (2) the State failed to prove that the defendants had the requisite mental intent to "market" drug paraphernalia; (3) the trial court admitted evidence that had no nexus between the defendants and the crime charged; and (4) the trial court improperly declined to return certain seized property to the defendants.

The defendants claim that the Drug Act is unconstitutionally vague because it fails to provide fair notice to potential offenders as to what characteristics various items must possess to qualify as illegal paraphernalia. This claim is without merit.

Section 2(d) of the Drug Act defines "drug paraphernalia" as "all equipment, products and materials of any kind which are peculiar to and marketed for use * * * [with] a controlled substance." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 2102(d) (now 720 ILCS 600/2 (West 1992)).) A statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by statute or if it delegates basic policy matters to officials with the attendant danger of encouraging arbitrary enforcement. ( Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2298-99.) To sustain a vagueness challenge, the person alleging vagueness must prove that the statute is not merely imprecise but that it articulates no standard of conduct at all. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495 n.7, 71 L. Ed. 2d 362, 369 n.7, 102 S. Ct. 1186, 1191 n.7.

Citing both Hoffman Estates and Grayned, the Appellate Court, First District, declared in Adams Apple Distributing Co. v. Zagel (1986), 152 Ill. App. 3d 157, 103 Ill. Dec. 281, 501 N.E.2d 302, that section 2(d) of the Drug Act, the definition section, is not unconstitutionally vague. In reaching its Conclusion, the court declared:

"The statute [Drug Act] generally defines drug paraphernalia in six ways and specifically lists 10 items that have been determined to constitute drug paraphernalia. A statute is not unconstitutionally vague merely because the legislature has not delineated every conceivable item that may fall within the statute's proscription. Moreover, the Supreme Court has stated that the presence of a scienter requirement in a ...

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