Appeal from the Circuit Court of Shelby County. No. 09-CF-159 Honorable Michael P. Kiley, Judge, presiding.
The opinion of the court was delivered by: Justice Stewart
The text of this decision may be changed or corrected prior to the filing of a IN THE Petition for Rehearing or the disposition of the same.
JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Spomer and Wexstten concurred in the judgment and opinion.
¶ 1 A jury convicted the defendant, Carol J. Bell, of attempted possession of anhydrous ammonia in violation of section 25(a)(1) of the Methamphetamine Control and Community Protection Act (720 ILCS 646/25(a)(1) (West 2008)). On appeal, the defendant maintains that her right to a jury trial was denied by the circuit court's failure to instruct the jury that an essential element of the offense of attempt includes a "substantial step." For the following reasons, we affirm the defendant's conviction.
¶ 3 The State originally charged the defendant with unlawful possession of anhydrous ammonia, but the State later amended the charge to attempted unlawful possession of anhydrous ammonia. At the defendant's jury trial, the following evidence was presented.
¶ 4 Illinois State Police Investigator Clay Woodard testified that on October 20, 2009, he was involved in a stakeout at a fertilizer plant to "curb the theft of anhydrous ammonia that is used in the manufacture of methamphetamine." The fertilizer plant had various tanks on its property for storage of anhydrous ammonia.
¶ 5 At approximately 10:52 p.m. during the stakeout, Woodard saw a vehicle driving in the vicinity of the tanks. Woodard observed a "larger male" get out of the passenger side of the vehicle and run across the fertilizer plant's parking lot toward a group of anhydrous ammonia tanks. The suspect was carrying a bag. Woodard tried to quietly approach the suspect, but Woodard heard the suspect drop the bag and take off running. Woodard ran after the suspect and took him into custody. He was later identified as Jason Swango.
¶ 6 Woodard retrieved the bag that Swango had dropped, and inside the bag he found a 20-pound propane tank that is commonly used for a gas grill. The tank, however, had been camouflaged and had a modified fitting on its top. Woodard testified that he had found similar tanks being used at methamphetamine laboratories. Sergeant Matt McCormick with the Illinois State Police also testified that Swango's modified propane tank was something that was typically used to steal anhydrous ammonia.
¶ 7 The vehicle that Swango exited was driven by the defendant. When Swango jumped out of the defendant's car, the defendant drove away from the tanks, but she returned to the area of the tanks and was stopped and arrested by Officer Reeves of the Shelby County sheriff's office. After her arrest, Woodard questioned the defendant. During the questioning, the defendant admitted that she was a methamphetamine user and had purchased pseudoephedrine pills for Swango in the past for the manufacture of methamphetamine. Swango compensated her a half a gram of methamphetamine per box of pseudoephedrine.
¶ 8 The defendant also told Woodard that on the date of the incident, Swango asked her if she would drive him to the fertilizer plant so that he could steal some anhydrous ammonia. She said that she did not know where to go but that Swango directed her as she drove. She told Woodard that she had expected to be compensated by Swango with gas money, cigarettes, and some of the methamphetamine manufactured with the anhydrous ammonia.
¶ 9 The defendant testified, however, that on the day of the incident, Swango called her and asked for a ride to his girlfriend's house. She agreed and drove to his house to pick him up. Swango had a bag with him when he got in the defendant's car, and the defendant testified that she did not ask Swango what he had in the bag. The defendant testified that on their way to Swango's girlfriend's house, Swango directed the defendant to turn down a particular country road. The defendant assumed that Swango was looking for his girlfriend.
¶ 10 After driving for a period of time, they approached what she later learned was a fertilizer plant, and Swango directed the defendant to stop. According to the defendant, Swango then opened the car door and grabbed his bag. The defendant asked Swango what he was doing, the defendant replied that everything will be fine, and he added, "Come back by and get me." The defendant testified that she initially did not know that the place where they stopped was an anhydrous plant but figured it out when Swango jumped out of her vehicle.
¶ 11 The defendant claimed she was "freaked out" because she did not know where she was, and she took off down the road to head home. She made a couple of turns and ended back in front of the plant again where she was stopped and arrested by Officer Reeves.
¶ 12 The defendant testified that she attempted to explain to the officers that she was merely giving Swango a ride to his girlfriend's house, but the officers kept interrupting her, telling her "no," and telling her what she was doing at the plant and what her plans were. She denied telling the officers that she agreed to go with Swango to steal anhydrous ammonia and denied telling them that she would be paid in gas money, cigarettes, and methamphetamine made with the anhydrous ammonia. She claimed to have no idea that Swango was going to steal anhydrous ammonia when she picked him up.
¶ 13 She testified that the interrogation lasted for over an hour and that she was taken to the county jail when it ended. At the conclusion of the evidence, the jury convicted the defendant of attempted possession of anhydrous ammonia. The circuit court subsequently sentenced the defendant to four years' imprisonment in the Department of ...