The opinion of the court was delivered by: Presiding Justice Garman
Following a jury trial in the circuit court of Adams County, defendant Steven Hanna was convicted of unlawful possession of less than 200 grams of a substance containing methamphetamine (720 ILCS 570/402(c) (West 1992)) and driving while his driver's license was revoked (DWR) (625 ILCS 5/6-303(a) (West 1992)). He was sentenced to a term of six years' imprisonment on the drug conviction and a concurrent term of 364 days in jail on the DWR conviction. Defendant appeals, arguing that (1) the State failed to prove beyond a reasonable doubt that the substances found in his possession were in fact controlled substances; (2) a limited remand is necessary to determine whether he was denied due process of law by the failure to afford him a fitness hearing, where he was ingesting psychotropic drugs during the pendency of the case; and (3) the trial court erred in ordering him to pay $300 toward the fees of his appointed counsel. We affirm in part, vacate in part and remand.
After first waiving counsel, defendant requested that counsel be appointed for him. At a hearing on this issue, defendant testified that he was self-employed in the automotive business, but his garage burned down and he was currently without any source of income. The garage was not insured. Due to injuries sustained in the fire, he is not able to work and is applying for disability payments. His home is worth between $8,000 and $12,000 and he owes approximately $3,000 in past-due real estate taxes on it. He also owns a vacant lot in joint tenancy with another person valued at approximately $500. He has a bank account with a balance of approximately $11. He owes approximately $5,000 to his father and approximately $4,500 to people who lost vehicles in his garage fire. His wife posted his bond of $1,200. She did not sign a bond assignment. The trial court appointed counsel for defendant and advised him that should he gain income or assets, he could be required to repay the county for the cost of the public defender. Defendant represented himself at trial, with his appointed counsel acting as standby counsel. Testimony for the State indicated that defendant was seen driving a truck and a check of his driver's license revealed that it had been revoked. Police officers arrested him at a donut shop. He was handcuffed and officers conducted a custodial search. In one of defendant's pockets, the officers found an open package of cigarettes. Two cigarettes were in the package, but the officers noticed that the package felt heavier than it should with only two cigarettes in it. The package contained a small vial with a screw cap, a small, clear plastic baggie with a whitish-brown powdery substance inside and a piece of newsprint commonly referred to as a "snow seal," which is usually used to carry illegal drugs. Inside the snow seal was a whitish-brown powdery substance. Such a substance is sometimes known to be methamphetamine. Defendant told the officers the substance in the vial was his nitroglycerin. He asked that a waitress at the donut shop keep all his personal effects, but the officers refused. Prior to the search, defendant said he felt sick and asked to go to the bathroom, but that request was also refused. One officer conducted a field test on the powdery substance. The substance in the vial did not test positive for methamphetamine, but the substances in the snow seal and baggie tested positive.
Nancy Antonaccio, a forensic scientist for the Illinois State Police who specializes in drug chemistry, testified that she performed preliminary and confirmatory tests on the substances. The preliminary test indicated that a stimulant could be present. She then performed an infrared spectrophotometer test, which is a confirmatory test, on each substance. The substances all contained methamphetamine hydrochloride, which is a controlled substance. An over-the-counter preparation, the "Vicks Inhaler," also contains methamphetamine. It must be in the inhaler to be an exempted substance in Illinois.
On cross-examination, Antonaccio stated that there are different isomers in methamphetamine, referred to as "D" and "L." Those letter designations refer to the rotation of the molecule as either "dextro-" or "levo-." Both are controlled substances in Illinois. There is a test available to distinguish between the D and L isomers, but she did not perform this test on the substances in question. The substance in the Vicks inhaler contains an L isomer; she is not aware of any other over-the-counter medication that contains methamphetamine with either the D or L isomer.
Daniel Brown, a privately employed toxicologist, testified for the defense that he reviewed the report prepared by Antonaccio. His conclusion is that her findings do not necessarily indicate the presence of a controlled substance in the items tested. Methamphetamine is a stimulant, and it is sometimes prescribed by doctors for different uses. L methamphetamine is available in inhalers used for cold medications. Vicks makes the inhalers, and it also makes inhalers for pharmacies such as Walgreen's and Hook's, which then sell them under their own names. Since no test was completed to determine whether D or L methamphetamine was present in the substances tested by Antonaccio, Brown has no way of knowing whether the substances tested were controlled substances. Brown testified he has no knowledge of whether the controlled-substances law distinguishes between D and L methamphetamine. The federal government has exempted the Vicks inhaler from its list of controlled substances because it does not produce the euphoria and stimulation that D methamphetamine does; it simply dries up the nasal passages and opens the sinuses. The L methamphetamine is usually found in the inhaler form, although it is possible to take several inhalers, extract the drug from it, and crystallize it back to a street-drug form. However, it is Brown's understanding that since it is L methamphetamine, it would still not be a controlled substance, although he admitted he did not review the federal statutes before his testimony and he is not an attorney. Brown was shown a copy of federal regulations listing the Vicks inhaler as an excluded substance.
Brown testified that the Vicks inhaler is the only excluded methamphetamine substance. The other excluded substances are mainly phenobarbital. He is unaware of any form of the L methamphetamine available for over-the-counter medications other than the Vicks inhaler.
Defendant testified that he has a heart condition and has used small amounts of methamphetamine for medicinal purposes. He also takes nitroglycerin. He admitted he drove the truck on the night in question but denied that his driver's license was revoked. Defendant admitted purchasing controlled substances over the last few years but stated that they were for his heart condition. He does not use drugs to get "high." He admitted having the methamphetamine in his possession when he was arrested.
On cross-examination, defendant stated that within the last 10 years he had convictions for residential burglary and burglary and had spent time in the Department of Corrections (DOC). Antonaccio testified in rebuttal that under Illinois law both D and L methamphetamine are controlled substances unless they are on the list of excluded substances. That list includes the Vicks inhaler; the substance must be in the inhaler. The substances found on defendant are not excluded and are controlled substances. The state and federal exclusions are the same.
Following the Conclusion of all evidence, the jury returned verdicts of guilty on both counts. Defendant's posttrial motion was denied and he was sentenced as stated. This appeal followed.
Defendant first argues that the State failed to prove beyond a reasonable doubt that the substances found in his possession were in fact controlled substances because there was no proof that the methamphetamine contained the D isomer. Defendant contends that methamphetamine containing the L isomer is not a controlled substance under Illinois law.
A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276 (1985). When presented with a challenge to the sufficiency of the evidence, a reviewing court will sustain a criminal conviction if "'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis in original.) Collins, 106 Ill. 2d at 261, 478 N.E.2d at 920, quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979).
In order to prove defendant guilty of unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that the substance possessed by the defendant is in fact a controlled substance. This is normally accomplished through chemical testing and expert testimony. However, where sufficient circumstantial evidence exists to convince a fact finder beyond a reasonable doubt that the substance defendant possessed is indeed a controlled substance, expert testimony is not always required. See People v. Eichelberger, 189 Ill. App. 3d 1020, 1027, 546 N.E.2d 274, 278 (1989); People v. Ortiz, 197 Ill. App. 3d 250, 255, 554 N.E.2d 416, 420 (1990).
Defendant cites section 214 of the Illinois Controlled Substances Act (Act) (720 ILCS 570/214 (West 1992)), which excludes from all schedules of the Act those substances excluded from the schedules of the federal Controlled Substances Act (21 U.S.C. §801 et seq. (1994)), pursuant to section 1308.22 of title 21 of the Code of Federal Regula- tions (Code) (21 C.F.R. §1308.22 (1994)). That section of the Code excludes "I-Desoxyephedrine" (21 C.F.R. §1308.22 (1994)), which is a diluted isomer of methamphetamine. United States v. Martinez, 950 F.2d 222, 223 (5th Cir. 1991). This substance is contained in the Vicks inhaler. Defendant argues that under the plain language of the regulation, it is the substance itself which is excluded, not the container in which it is held. He further complains that any other interpretation would effectively criminalize possession of L methamphet- amine contained in inhalers other than the Vicks-brand inhaler. We find no merit in defendant's argument. The regulation clearly states that the "Vicks Inhaler" manufactured by Vicks Chemical Company may be lawfully sold over the counter without a prescription and is therefore excluded from all schedules. 21 C.F.R. §1308.22 (1994). The form of the product excluded is designated as the inhaler. The Vicks inhaler is one of several products listed in the regulation, all designated by brand name, manufacturer, and the form in which the substance may be used. The regulation could not be more clear. As to defendant's argument that the regulation would punish those in possession of inhalers containing methamphetamine other than the Vicks brand, we note that this is purely a hypothetical argument not available to defendant here. He was not charged with possession of a substance contained in an inhaler. See People v. Wisslead, 108 Ill. 2d 389, 397, 484 N.E.2d 1081, 1084 (1985).
We also disagree with defendant's argument that methamphet- amine with the L isomer is not a controlled substance under Illinois law. It is irrelevant which isomer is present; methamphetamine is a controlled substance unless used in the approved form, i.e., in the Vicks inhaler. The removal of the over-the-counter form of L metham- phetamine found in the Vicks inhaler from the schedule of banned controlled substances did not result in the removal of methamphetamine in general from the list of proscribed controlled substances. Martinez, ...