from the Circuit Court of Kane County. No. 13-CF-1891
Honorable Linda S. Abrahamson, Judge, Presiding.
JUSTICE BURKE delivered the judgment of the court, with
opinion. Justices Hutchinson and Jorgensen concurred in the
judgment and opinion.
1 On three separate occasions beginning in July 2013, an
undercover police officer purchased commercially packaged
products, known as "Mary Joy" and "Mary Joy
Dead and Berried," from the King Puff-N-Stuff smoke shop
owned by defendant, John G. Monteleone. The ingredient list
on the packages did not include any illegal substances, but
lab results revealed that the products contained
lab-manufactured chemical compounds frequently referred to as
synthetic cannabinoids, which are illegal controlled
substances. The State charged defendant by indictment with
several counts and, following a bench trial, defendant was
found guilty of six counts. Defendant appeals his convictions
of delivery of a controlled substance and unlawful possession
with intent to deliver a controlled substance. To convict a
defendant of these offenses, the State must prove, inter
alia, that the defendant knew that the substance was
illegal. Defendant admits that he possessed and sold the
products, but he contends that the State failed to prove
beyond a reasonable doubt that he knew that the products
contained an illegal substance. We affirm.
2 I. FACTS
3 Defendant's charges included three counts of delivery
of a controlled substance (counts V, VI, and VII), two counts
of possession with intent to deliver a controlled substance
(counts I and III), two counts of possession of a controlled
substance (counts II and IV), one count of possession of
cannabis (count VIII), and one count of possession of drug
paraphernalia (count IX). Except for counts VIII and IX, the
counts alleged that defendant sold and possessed an amount of
a "substance containing 1-Pentyl-3-(2, 2, 3, 3
tetramethylcyclopropyl) indole (UR-144),
1-(5-fluoropentyl)-3-(2, 2, 3, 3 tetramethylcyclopropoyl)
indole (XLR-11), a controlled substance analog that has a
chemical structure substantially similar to that of the
controlled substance JWH-018." See 720 ILCS 550/4(b)
(West 2012); 720 ILCS 570/401(a)(11), (c)(11), (d),
402(a)(11), (c) (West 2012); 720 ILCS 600/3.5(a) (West 2012).
4 The following relevant facts were taken from the trial.
Scott Torkleson, the undercover police officer, entered
defendant's store on July 16, 2013. The store displayed
digital scales, smoking pipes, bongs, vaporizers, and tobacco
products in glass cases and on the walls. Torkleson asked if
defendant had any Mary Joy for sale. Defendant responded that
he did and that another person, who had just entered the
store, also was there to purchase Mary Joy. Defendant went to
an office in the back of the store for a few minutes and then
called the other person to the office. After a short period,
that person left the store, carrying cash in his hand.
Defendant then called Torkleson to the office. Defendant
showed him a small green and purple package labeled
"Mary Joy" and told Torkleson that it would cost
$15. Torkleson paid defendant with a $20 bill. Defendant did
not use the cash register or give Torkleson a receipt.
Torkleson asked if he could return and buy more if he liked
it, and defendant responded "absolutely." Defendant
gave him a business card on his way out.
5 Torkleson later called defendant and told him that he
wanted to purchase more Mary Joy and defendant said that he
would meet him at the store. When Torkleson returned to the
store, on July 25, 2013, defendant stated that he had only
one package of Mary Joy but that he also had Mary Joy Dead
and Berried. Defendant told Torkleson that he should be
careful with it because it was very strong; that it would
"knock him on his ass." Defendant and Torkleson
walked to the back office. Torkleson saw defendant take the
Mary Joy and the Dead and Berried out of an open safe that
contained money. Torkleson then purchased the two packages
from defendant, with cash. As before, defendant did not ring
up the purchase or give Torkleson a receipt. Before he left,
Torkleson asked defendant about purchasing cannabis, and
defendant said that he could take care of him.
6 On September 19, 2013, Torkleson conducted another
undercover buy from defendant. When he entered the store,
defendant asked if he was there to purchase some Mary Joy.
Torkleson said yes and they went to the back office.
Torkleson saw defendant take the Mary Joy out of the safe
before he handed it to him. Defendant did not ring up the $15
purchase or give Torkleson a receipt. Torkleson never saw
Mary Joy displayed or advertised in the public area of the
7 Torkleson testified that, based on his training, he knew
that none of the ingredients listed on the back of the Mary
Joy package was an illegal substance. The ingredient list for
Dead and Berried was identical to that for Mary Joy. The
package itself was a manufactured container, not a baggie.
8 Virgil Schroeder, a master sergeant with the Illinois State
Police, testified that on September 25, 2013, search and
arrest warrants were served on defendant in his store.
Defendant gave Schroeder the combination to his safe and told
him that there was some "Spice" in it.
"Spice" is a generic term for various synthetic
cannabinoids. Schroeder found two plastic bag bundles
containing both types of Mary Joy in the safe. He found no
other packages of either kind of Mary Joy in the rest of the
store. He did find a pipe that appeared to have been used to
smoke some kind of substance. When Schroeder went to
defendant's residence, he saw defendant's wife,
Tracy, in her car and noticed two large overflowing tubs of
Mary Joy and Dead and Berried in her back seat. In total,
there were 3295 packages of Mary Joy.
9 Master Sergeant William Backus assisted in executing the
warrant. Defendant told him "I no longer sell drugs here
anymore. I just have a little weed." Another officer
searched defendant and found a small amount of cannabis.
10 Sara Anderson, a forensic drug chemistry expert who worked
at the Illinois State Police forensic science laboratory,
received a bag of plant material on August 6, 2013. Using
several techniques, including a gas chromatograph mass
spectrometer, she determined that the plant material
contained XLR-11 and UR-144. It did not contain JWH-018.
11 Martin Skelcy, another forensic drug chemistry expert
employed by the State Police, analyzed the material and found
that it contained XLR-11 and UR-144. He also weighed and
tested the bin full of Mary Joy packages. The bin contained
209 grams of Mary Joy, and the plant material in the packages
contained XLR-11 and UR-144.
12 Greg Endres, who was qualified as an expert in the field
of medicinal and forensic chemistry, identified chemical
diagrams of both tetrahydrocannabinol (THC), the active
ingredient in cannabis, and JWH-018. JWH-018's structure
has some similarity to THC, primarily because it binds to
cannabinoid receptors in the human body. This binding is
responsible for the psychotropic effects of cannabis and
synthetic cannabinoids. Synthetic cannabinoids have more
serious adverse effects on the body and tend to continually
increase in effect with dosage. "K2" and
"Spice" are two early and predominant brand names
of an herbal mixture that has been sprayed with synthetic
cannabinoids. Endres noted that synthetic cannabinoids have
dozens of brand names, which are constantly changing. He
frequently referred to all synthetic cannabinoids as K2. He
also noted that new, slightly distinct compounds are designed
and marketed to avoid criminal liability. Endres concluded
that UR-144 and XLR-11 are substantially similar to JWH-018,
falling within the same subclassification of indole-based
synthetic cannabinoids. In drug-discrimination tests, mice
were not able to discriminate between XLR-11 or UR-144 and
THC or JWH-018. He testified that, within a reasonable degree
of scientific certainty, XLR-11 and UR-144 are analogs of
JWH-018. Endres ...