Appeal from Circuit Court of McLean County. No. 12CF204. Honorable Scott Drazewski, Judge Presiding.
Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Alan D. Goldberg and Carolyn R. Klarquist (argued), both of State Appellate Defender's Office, of Chicago, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Luke McNeill (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Knecht and Holder White concurred in the judgment and opinion.
[¶1] In February 2012, a police confidential source purchased a commercially packaged product from a convenience store owned by defendant, Kuldeep Chatha. Forensic testing revealed that the product contained a lab-manufactured chemical compound--referred to as AM-2201--which mimics the effects of cannabis. The State later charged defendant with possession of a controlled substance with the intent to deliver (50 grams or more of a substance containing AM-2201 (synthetic cannabis) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole) (720 ILCS 570/401(c)(11) (West 2010)).
[¶2] Following a March 2013 bench trial, the trial court found defendant guilty. In July 2013, the court sentenced defendant to (1) jail for 180 days, which the court stayed; and (2) probation for 3 years.
[¶3] Defendant appeals, arguing that the State failed to prove his guilt beyond a reasonable doubt. We agree and reverse.
[¶4] I. BACKGROUND
[¶5] A. The State's Charges
[¶6] In March 2012, the State charged defendant with possession of a controlled substance with the intent to deliver. Specifically, the State alleged that defendant " knowingly *** possessed with the intent to deliver more than  grams of a substance containing AM-2201 (synthetic cannabis) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole)."
[¶7] B. The Evidence Presented at Defendant's March 2013 Bench Trial
[¶8] At a March 2013 bench trial, the parties presented the following evidence.
[¶9] 1. The State's Evidence
[¶10] Alexander Cole testified that as the result of his earlier arrest for selling cannabis, in February 2012, he agreed to assist the police by becoming a confidential source. On February 23, 2012, Cole agreed to meet Tim Tyler, a McLean County sheriff, to conduct a " controlled buy." At that meeting, Tyler (1) searched Cole and his car to ensure the absence of money or contraband, (2) instructed Cole to drive to a gas station/convenience store owned by defendant to purchase " spice" marketed as " California Kush," and (3) provided Cole $40 in recorded bills for that purchase. Tyler directed Cole not to purchase California Kush if the store had it openly displayed for sale.
[¶11] Cole followed Tyler to defendant's store, which was located just outside the city limits of Lexington, Illinois. After entering the store and confirming that the product was not openly displayed, Cole asked the cash-register clerk for California Kush. The clerk responded that the store
did not stock that product, but he offered Cole what the clerk described as a similar product marketed as " Bulldog Potpourri." The clerk reached under the counter and handed Cole the product. Cole inspected the packaging and, after noticing that no other Bulldog Potpourri products were being displayed on the cash-register counter, he agreed to the purchase. The clerk then scanned a bar code next to the cash register to begin the $27.74 transaction. Cole completed the sale but did not ask for a receipt. Cole then returned to Tyler and gave him the product and the remaining money. Cole acknowledged that a glass display case, which he recalled did not contain any Bulldog Potpourri, was located about four feet away from the left side of the cash register.
[¶12] Tyler's testimony regarding the circumstances preceding Cole's February 23, 2012, purchase of Bulldog Potpourri was consistent with Cole's account. Tyler explained that from the time Cole arrived at defendant's store until the time he left, two police officers surveilled Cole from the store's parking lot. Afterward, Cole met Tyler at a nearby highway ramp and gave Tyler the Bulldog Potpourri and remaining money. Tyler performed a second search of Cole and his car to ensure that Cole did not retain any product or money. Thereafter, Cole left in his vehicle, and Tyler returned to the sheriff's department to secure the Bulldog Potpourri into evidence.
[¶13] That afternoon, an evidence technician transported the Bulldog Potpourri to the Illinois State Police crime lab for analysis. Tyler testified that effective January 1, 2012, the legislature changed Illinois law to make " some chemicals that were contained in some [s]pice products illegal." Hours later, the crime lab informed Tyler that the Bulldog Potpourri contained AM-2201, which Illinois law classified as a controlled substance. Tyler then obtained a search warrant for defendant's store, which he and several other officers executed that evening.
[¶14] During the search of defendant's store, police seized the following amounts of Bulldog Potpourri: (1) 6 jars on the counter near the register, (2) 33 jars in an open box underneath the counter, (3) two additional unopened boxes underneath the counter, (4) five jars on top of the store safe, and (5) two unopened boxes in a locked back office. (A photographic exhibit admitted into evidence showed that each unopened box held 64 jars of Bulldog Potpourri.)
[¶15] Tyler explained that approximately 30 minutes after he executed the search warrant, he left the officers that were searching defendant's store and returned to the police station. Tyler called defendant and asked him to come to the police station for an interview. Defendant agreed, arriving at the station sometime before 9 p.m. that evening. The videotaped interview, which the trial court viewed, showed the following.
[¶16] Defendant stated that he owned two gas station/convenience stores, located in Lexington and Morris, Illinois. Defendant acknowledged that because of a change in the law, he discontinued selling certain products, effective December 31, 2011. Thereafter, numerous customers at his Lexington store inquired why defendant did not sell Bulldog Potpourri, which they claimed was being sold by a tobacco store in Bloomington, Illinois. Customers asked defendant to stock the product so that they would not have to drive to Bloomington. At defendant's request, a customer provided him (1) samples of the product and (2) the telephone number of the tobacco store from which it was purchased. Defendant called the number, and the person responding confirmed that the store was selling
Bulldog Potpourri. Based on that conversation, defendant " thought it might be legal."
[¶17] Defendant stated that his supplier, Mohammed, informed him that Bulldog Potpourri was " natural incense" that was " 100% lab tested" and did not contain any " synthetic drug." (The record does not reveal the supplier's full name.) Mohammed provided defendant a lab report purporting to show that Bulldog Potpourri did not contain any illegal substances. Based on Mohammed's representations, in February 2012, defendant began selling Bulldog Potpourri in his Lexington store. Acknowledging that some of his customers smoked Bulldog Potpourri, defendant stated he had a strict policy against selling that product to minors. Defendant averred that if he knew that the product was illegal, he would not have sold it. Defendant did not sell Bulldog Potpourri from his Morris store because a city ordinance prohibited such sales.
[¶18] During the interview, Tyler informed defendant of the crime-lab test results. Defendant reiterated that if he had known, he would not have sold Bulldog Potpourri. When Tyler suggested that defendant was " hiding" the Bulldog Potpourri by not displaying it openly, defendant stated that he informed his employees to display the product in the glass case located on the cash-register counter. Defendant claimed that a container of Bulldog Potpourri was displayed in the glass case, acknowledging that if he was incorrect, it was likely that the product in the glass case had been sold and not yet restocked. Defendant stated that he kept a supply of Bulldog Potpourri under the counter so that his sole store clerks working their respective shifts would not have to walk back and forth from the glass display case each time a customer requested the product. Defendant denied that he knew Bulldog Potpourri contained a controlled substance.
[¶19] A few days after his interview, defendant provided Tyler a correspondence dated January 9, 2012, signed by an " authorized representative" of S.A. Wholesale, LLC, which contained the following information:
" 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 ...