In a prosecution for unlawful delivery of a controlled substance containing synthetic cannabis arising from defendant’s sale of a “spice” while working at a convenience store, the evidence only established that defendant knew he was selling a professionally packaged product called “Bulldog” that was identified as a “spice, ” that defendant knew it was smoked by some people, that it was not on open display, and that the store owner said the product was legal to sell and he had a certificate supporting that claim; therefore, defendant’s conviction was reversed on the ground that the State failed to prove the knowledge element of the offense beyond a reasonable doubt.
Appeal from the Circuit Court of McLean County, No. 12-CF-170; the Hon. James E. Souk, Judge, presiding.
Counsel on George Pappas (argued), of Chicago, for appellant. Appeal
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and Thomas R. Dodegge (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Holder White concurred in the judgment and opinion.
¶ 1 In August 2012, the trial court found defendant, Dinesh Patel, guilty of unlawful delivery f a controlled substance (substance containing AM-2201 (synthetic cannabis) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole) (720 ILCS 570/401(e) (West 2010)). Defendant appeals, arguing (1) the State failed to prove his guilt beyond a reasonable doubt and (2) his conduct was the result of a mistake of fact, a defense to this crime. We reverse defendant's conviction.
¶ 2 I. BACKGROUND
¶ 3 In March 2012, a grand jury returned a two-count indictment against defendant, charging him with the unlawful delivery of a controlled substance. Count I alleged defendant knowingly and unlawfully delivered more than 1 gram but less than 15 grams of a substance containing AM-2201 (synthetic cannabis) (720 ILCS 570/401(e) (West 2010)). Count II alleged defendant knowingly and unlawfully delivered less than 1 gram of a substance containing AM-2201 (synthetic cannabis) (720 ILCS 570/401(d)(i) (West 2010)). The State dismissed count II prior to trial.
¶ 4 At defendant's trial, Alex Cole, a student at Illinois State University, testified he was arrested by the McLean County sheriff's department for selling marijuana on February 9, 2012, and subsequently became a confidential source for the sheriff's department. As of defendant's trial, the State had not filed any charges against him.
¶ 5 Cole testified Detective Tim Tyler of the McLean County sheriff's department contacted him on February 23, 2012, via text message about a gas station possibly selling an illegal substance to the public. Cole met with Detective Tyler later that day. Tyler directed Cole to the BP Amoco station in Lexington, Illinois, and told him to go inside and purchase a specific kind of "spice" called California Kush. Tyler said not to purchase it if it was on display, in open view, or marked as legal. Tyler searched Cole and his car and gave him $40 in marked or recorded money.
¶ 6 Inside the gas station, Cole did not see any "spice" or any marked display saying the "spice" was legal. Cole approached defendant, who was behind the register, and asked if he had any Cali Kush or California Kush. The clerk said he did not have any but had another product which was the same. Defendant presented him with a jar labeled "Bulldog" from underneath the counter. Cole bought the product using the money Detective Tyler provided him. Defendant gave him change but not a receipt. Cole then left and met Detective Tyler and gave him the "Bulldog" and change.
¶ 7 On cross-examination, Cole testified he was not sure where defendant put the money he gave him but said it was probably the cash register. He testified defendant gave him change from the cash register.
¶ 8 Tim Tyler, a detective with the McLean County sheriff's department, testified he had a case against Cole for selling cannabis. On February 23, 2012, Tyler contacted Cole about making a controlled buy at the BP Amoco station in Lexington. Tyler directed Cole to ask for California Kush or Cali Kush. Tyler told Cole not to buy the product if it was readily displayed for sale or advertised as legal "spice."
¶ 9 Tyler had been told the "spice" "was not readily for sale [at the gas station] and you had to be a previous customer or person known to them in order to purchase it." Defense counsel made a hearsay objection. The judge ruled the statement was not being introduced for the truth of the matter asserted but to explain the detective's actions and the instruction he gave Cole.
¶ 10 After Cole purchased the "Bulldog, " he gave it to Tyler. The "Bulldog" was sent to a crime lab for testing. At approximately 4:30 p.m. the day of the controlled buy, the crime lab informed Tyler the "Bulldog" contained a listed controlled substance. Based on the evidence collected, a search warrant was issued for the gas station. The warrant was executed around 6 p.m. Defendant was not present at the time. Zora Singh, another store clerk, was working at the time. The money provided to the confidential source was not found at the gas station during the search.
¶ 11 Detective Tyler testified he interviewed defendant later that evening after he was taken into custody. A video recording was made of the interview, which was played for the trial court.
¶ 12 Tyler admitted he did not know whether "Bulldog" was illegal when Cole gave it to him after the controlled purchase. According to Tyler, "spice" was legal until January 1, 2012, and was still legal as long as it did not contain certain chemicals. The following exchange then occurred:
"[DEFENSE COUNSEL]: So a clerk working the morning shift, you would have to know what products are legal and what products aren't legal?
[THE STATE]: I'm going to ask for an objection here as to speculation, as to what a clerk on a certain day someplace else–he's asking for a hypothetical.
[THE COURT]: Do you want to rephrase that?
[DEFENSE COUNSEL]: Yeah. So a clerk would have to know what brands of Spice were legal and what was not legal. Right?
[THE STATE]: Objection, again speculation. The clerk would know.
[DEFENSE COUNSEL]: In order to be in compliance of the law they would have to know the difference, what was in the different Spice products?
[THE STATE]: Now we are asking the officer for a conclusion of law. I object to that also.
[DEFENSE COUNSEL]: No, I'm just saying that isn't it true that a clerk would have to be able to differentiate what is legal and what isn't as far as the Spice products as of January 1st.
[THE COURT]: Well that really gets into asking for some legal conclusion as to what knowledge the clerk would or wouldn't have to have in order to be in compliance with the law, so you're really asking the officer for an opinion about what it would take for the clerk to be breaking the law and I think that is what we are here about today. So I'll sustain the objection."
¶ 13 Detective Tyler testified he knew of no reliable field test he would feel comfortable using to test "spice." Tyler testified the fact Cole was not given a receipt after purchasing the "Bulldog" led him to believe the gas station was selling "Bulldog" off the books. Tyler admitted he did not know whether Cole asked for a receipt. Cole only told him he did not get a receipt. The police found receipts at the gas station for "incense" showing a purchase price of $27.74, which was the price Cole paid for the "Bulldog."
¶ 14 Tyler testified defendant told him the gas station sold Cali Kush and Diesel in December 2011. Defendant also told Tyler during a 21-day period in January the gas station did not sell any kind of "spice."
¶ 15 Defense counsel attempted to question Tyler about a lab report and letter provided by Kuldeep Chatha, the owner of the gas station, to the police which showed a substance called "California Kronic" was tested on January 12, 2012, by Toxicology Associates, Inc. The report stated certain listed substances were not found in "California Kronic." The report did not reference the substance at issue in this case, AM-2201. The letter was from S.A. Wholesale, LLC, stating its brands were California 10X, Bulldog, Diesel, Pandora, and Four Elements, not California Kronic. According to the letter:
"S.A. Wholesale, LLC (and Partners) only sell and distribute AROMATHERAPY products and are for fragrance purposes only, they are NOT TO BE USED IN ANY OTHER WAY. Our company, distributors, and retailers ARE NOT responsible for the misuse of any of our products.
These products DO NOT contain any of the following substances listed on Illinois HB 2089 (Public Act 097-0193) and (or) HB 2595 (Public Act 097-0192) ."
The State objected to the introduction of this evidence and questions related to it on hearsay grounds. Defense counsel argued he was not introducing the report or questioning Tyler to establish the truth of the lab reports or letter but as support for defendant's belief he was selling a legal product based on what he was told by the station owner, Kuldeep Chatha. The trial court admitted the lab report, letter, and Tyler's testimony with regard to the report and letter for a limited purpose, stating:
"Well I'll admit the exhibit and the testimony for the limited purpose of establishing that the owner apparently provided some documentation to Detective Tyler that in an apparent effort to establish he had some basis for thinking whatever product he was selling was legal. Obviously the document does not establish that; but for that limited purpose and I suppose to show there was some sort of document in his possession which would be perhaps some corroboration for what the defendant told the detective that he had been told it was okay because he had a certificate, I'll allow it for that limited purpose."
¶ 16 John Sandage, a lieutenant with the McLean County sheriff's department, testified he took part in the search of the gas station. During the search, he pried open the door to the office because it was locked and found two black boxes containing "Bulldog." The employees present at the gas station when the search was done said they did not have a key to the office. Sandage called Kuldeep Chatha, the station owner, and waited for him to arrive. (We note, in his complaint for a search warrant, Detective Tyler stated defendant was the station owner.)
¶ 17 Chris Renken, a detective with the McLean County sheriff's department, testified he accompanied Detective Dave Fritts as part of a surveillance group for the controlled buy. From outside the gas station, they watched Cole purchase the "spice, " walk back out to his car, and then drive back to Detective Tyler. Renken was also involved in arresting defendant at the trailer where he lived. Renken searched defendant and did not find the money used by Cole to purchase the "Bulldog" or any other money on his person, nor any "spice."
¶ 18 Detective Fritts, of the McLean County sheriff's department, was one of the detectives who served the search warrant on the gas station. Fritts took photographs inside the gas station. The pictures showed a few jars of "Bulldog" underneath a notepad next to the register, more jars underneath the counter, and a large amount of loose cash under the register, apparently from lottery ticket sales. Fritts testified a bar code on the side of the register was scanned when "Bulldog" was purchased. The containers of "Bulldog" did not have a bar code on them.
¶ 19 The store had pipes on display behind the counter which could be used to smoke tobacco, marijuana, or "spice." To his knowledge, the workers present when the search was conducted did not have a key to the office at the gas station. Fritts testified another brand of "spice" called "Passion Fruit" was found at the gas station. Fritts did not know if the "Passion Fruit" was legal or illegal "spice." Fritts testified he did not find "Bulldog" or "Passion Fruit" on display in the gas station.
¶ 20 Stan Hoselton, who lived in Lexington and was a member of the McLean County board and the liquor control commission, testified on defendant's behalf. He had known defendant for three or four years. He spoke to defendant almost every morning when he went to the McDonald's adjacent to the BP Amoco station. Based on his numerous conversations with defendant, Hoselton opined defendant did not know he was selling an illegal product. Hoselton described defendant as a gentleman to the customers at the gas station and someone he would hire. Hoselton believed defendant to be an honest man.
¶ 21 Defendant called Zora Singh, who also worked at the gas station as a cashier. Singh testified defendant worked from 5 a.m. to 3 p.m. At the time of the alleged offense, Singh and defendant lived together in a trailer provided by their employer. Singh stated he never knowingly sold anything illegal at the gas station. In 2011, the gas station sold small plastic containers of potpourri or incense with names like "Bulldog, " "Diesel, " and "California Kronic" for $19.99 per container. In 2012, the price increased to $24.99. When the gas station first began selling the potpourri or "spice" in 2011, some of the plastic containers were usually displayed in a locked, glass case by the door. However, the "spice" itself was always stocked under the counter by the cash register. If a customer bought "Bulldog" with a credit card, a receipt automatically printed. If a customer paid with cash, a receipt was provided if one was requested. Regardless of whether a receipt was provided, all sales were recorded by the cash register. Singh testified money from lottery sales was not placed in the cash register but rather was kept underneath the counter. Singh testified people buy "Bulldog" to smoke. According to Singh, no one told him not to put the "Bulldog" on display.
¶ 22 Defendant testified on his own behalf with the aid of an interpreter. He was born in India in 1966. His wife and 18-year-old son lived in India. He came to the United States in 2003 and worked at a Dunkin' Donuts in New Jersey for six years. He sent money he earned back to India for his wife and son. Defendant quit working at the gas station after he was arrested.
¶ 23 Defendant had worked at the gas station for 1½ years. He did not have access to the safe or the back room of the gas station. The gas station owner usually came into the station at night when defendant was not there. Defendant worked from 5 a.m. to 3 p.m., seven days a week. He made $2, 000 per month and was allowed to live in the trailer with Zora. He testified he did not count or deal with money or buy or order products. When someone purchased "Bulldog, " he placed the money in the cash register.
¶ 24 Defendant testified he did not know why Kuldeep Chatha did not want to display the "Bulldog." Defendant testified he was never aware he was selling anything illegal to anybody. The money for lottery ticket purchases was placed under the counter in the open register. Defendant did not remember Cole buying the "Bulldog."
¶ 25 On cross-examination, defendant testified he did not know what "spice" was before he was arrested. When asked why he told Detective Tyler he knew what "spice" was, defendant stated it could have been due to his limited understanding of the English language. At trial, defendant was assisted by an interpreter. He did not have an interpreter to assist him during his interview with Detective Tyler. Defendant stated he was nervous and scared when he talked to Detective Tyler because it was the first time he had ever been arrested. He could give basic information like his name and address, but he might have had trouble with ...