People v. Schmidt

No. 3--08--1037

Filed October 27, 2010
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2010

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 9th Judicial Circuit,
) Hancock County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 08--CF--28
)
GERALD C. SCHMIDT, )
) Honorable David F. Stoverink,
Defendant-Appellant. ) Judge, Presiding.

JUSTICE SCHMIDT delivered the opinion of the court:

The State charged defendant, Gerald Schmidt, with a plethora

of crimes stemming from an incident that occurred on May 27,

2008. A Hancock County jury found defendant guilty of unlawful

use of property (720 ILCS 646/35(a) (West 2008)), unlawful

possession of methamphetamine precursor (720 ILCS 646/20(b)(1)

(West 2008)), unlawful possession of methamphetamine (720 ILCS

646/60(a) (West 2008)), obstructing justice (720 ILCS 5/31--4(a)

(West 2008)), and aggravated fleeing or attempt to elude a peace

officer (625 ILCS 5/11--204.1(a)(1) (West 2008)). The circuit

court sentenced defendant to the following terms of imprisonment:
unlawful use of property, 20 years; unlawful use of

methamphetamine precursor, 20 years; unlawful possession of

methamphetamine, 4 years; obstructing justice, 2 years; and

aggravated fleeing or attempt to elude a peace officer, 2 years.

In this direct appeal, defendant claims that his conviction

for unlawful use of property cannot stand as section 35 of the

Methamphetamine Control and Community Protection Act (the Act)

(720 ILCS 646/35 (West 2008)) is: (1) unconstitutional as it

bears no reasonable relationship to a legitimate state interest;

(2) overbroad as it criminalizes innocent conduct; and (3)

unconstitutionally vague. Defendant further claims that the

State failed to prove him guilty beyond a reasonable doubt of

possession of a methamphetamine precursor and that his

convictions for both possession of methamphetamine and possession

of a methamphetamine precursor cannot stand as they are lesser-

included offenses of unlawful use of property.

FACTS

Fuller Fertilizer is located in Hancock County, just off

Highway 96, about two miles north of the Adams County line.

There is only one road in or out of the property. A main

building fronts the property, and the driveway leads past it and

toward the back of the property. In the back of the property,

2
there are several buildings, including a seed building, a

fertilizer plant and several anhydrous ammonia wagons.

At about 10 p.m. on May 27, 2008, Jeffrey Donley, an

employee of Fuller, reported to police that a small, white pick-

up truck with a loud muffler had driven onto the company grounds

with its lights off. The truck proceeded past the main building

and up over a hill toward a large, open-ended Quonset hut.

Within 15 minutes, several officers arrived. Deputy Joshua

Smith testified that, after speaking with Donley, he drove toward

the back of the property. Deputy Mike Norris walked along the

path the white truck had followed, carrying a rifle equipped with

a flashlight. Two other officers used their squad cars to block

the entrance to the grounds.

Deputy Smith drove through a grassy field, passed the

ammonia wagons, and circled back toward the Quonset hut where he

saw a white Ford Ranger pickup truck that was later determined to

be registered to defendant. As Smith drove down a hill toward

the Quonset hut, Norris radioed him to advise that the truck's

engine had started. The truck then sped away and Smith, after

activating his emergency lights, pursued the truck.

The driver of the truck turned its headlights on as it drove

away from Smith. The driver nearly hit Deputy Norris with the

3
truck as Norris stood in a gravel parking lot on the grounds.

Norris fired two shots at the truck: one struck the front fender

and the other punctured the front driver's-side tire. The truck

continued to head for the exit, forcing the police that were

blocking it to back away to avoid being struck by the pickup.

Smith continued to follow the truck down Highway 96. Chunks

of tire flew from the left front of the truck as it drove down

the highway. During the chase, Smith witnessed the driver lean

over to the passenger-side window, open it, and throw a blue

container out of the window. A blue bowl containing suspected

pseudoephedrine was found the next day in the area where Smith

witnessed the driver of the truck jettison the blue object.

Smith followed the truck over the Adams County line, at

which time the driver's-side front tire had come completely off

the truck. Eventually, the truck stopped in a residential alley

in Quincy, Illinois. Police then arrested the defendant driver.

At the time of arrest, a white powder covered defendant as well

as the front seat of the pickup. Deputy Norris collected the

powder from the front seat.

Police later searched the Quonset hut and the area immedi-

ately surrounding it. They found a bucket, other containers,

plastic gloves, salt, Coleman fuel, Liquid Fire, coffee filters,

4
side cutters, a pocket knife and battery peelings. It is undis-

puted that all of the items found are items used in the manufac-

ture of methamphetamine.

Joni Mitchell, a forensic scientist employed by the Illinois

State Police, tested both the substance found on the front seat

of the truck and the substance found in the bowl recovered from

the side of the highway. She determined that the substance found

in the bowl was "1.9 grams of powder [that] does indeed contain

methamphetamine and pseudoephedrine." She could not determine

what percentage of the substance was pseudoephedrine and what

percentage was methamphetamine. She explained that it is "pretty

common to find in a methamphetamine sample, not all of the

pseudoephedrine gets cooked up and so some of it is left behind.

And we typically find it a lot of times with meth." The

substance recovered from the pickup truck weighed 3.1 grams and

was determined to contain methamphetamine.

Ultimately, the jury acquitted defendant of the offenses of

burglary and unlawful participation in methamphetamine

manufacturing. The jury found defendant guilty of unlawful use

of property, unlawful possession of methamphetamine precursor,

unlawful possession of methamphetamine, obstructing justice,

aggravated fleeing or attempting to elude a police officer, and

5
aggravated assault. Defendant filed a timely posttrial motion.

After the trial court considered defendant's motion, it entered a

judgment notwithstanding the verdict in favor of defendant on the

aggravated assault charge.

At sentencing, the trial court found that defendant's

criminal record mandated that he be sentenced as a Class X

offender for the two Class 2 felonies: unlawful use of property

and unlawful possession of methamphetamine precursor. For these

crimes, the trial court sentenced defendant to concurrent 20-year

terms of incarceration. The trial also sentenced defendant to a

four-year term for unlawful possession of methamphetamine, a two-

year term for obstructing justice, and a two-year term for

aggravated fleeing and attempting to elude a peace officer. All

sentences imposed run concurrently.

Defendant filed a timely motion to reconsider sentence that

the trial court denied. This timely appeal followed.

ANALYSIS

A. Constitutionality Challenges

Section 35 of the Act states:

"(a) It is unlawful for a person

knowingly to use or allow the use of a

vehicle, a structure, real property, or

6
 personal property within the person's

control to help bring about a violation

of this Act.

(b) A person who violates subsection

(a) of this Section is guilty of a Class 2

felony." 720 ILCS 646/35 (West 2008).

Defendant argues this section is unconstitutional for

several reasons. He claims it: (1) bears no reasonable

relationship to the interest intended to be protected; (2) is

overbroad; and (3) is vague. Our review of defendant's

constitutional challenge is guided by familiar principles.

Statutes are presumed constitutional and the party challenging

the constitutionality of a statute bears the burden of

establishing its invalidity. People v. Wright, 194 Ill. 2d 1,

740 N.E.2d 755 (2000). The legislature has great discretion to

establish penalties for criminal offenses, but this discretion is

limited by the constitutional guarantee that a person may not be

deprived of liberty without due process of law. In re K.C., 186

Ill. 2d 542, 714 N.E.2d 491 (1999).

1. Rational Basis Test

When legislation does not affect a fundamental constitu-

tional right, the rational basis test is used to determine

7
whether it complies with substantive due process requirements.

People v. Hamm, 149 Ill. 2d 201, 595 N.E.2d 540 (1992). Under

this test, a statute will be upheld if it "bears a reasonable

relationship to a public interest to be served, and the means

adopted are a reasonable method of accomplishing the desired

objective." People v. Adams, 144 Ill. 2d 381, 390, 581 N.E.2d

637, 642 (1991). "In other words, the statute must be reasonably

designed to remedy the evils which the legislature has determined

to be a threat to the public health, safety and general welfare."

People v. Falbe, 189 Ill. 2d 635, 640, 727 N.E.2d 200, 204

(2000).

Our legislature stated that it enacted the Act for the

following reasons:

"The purpose of this Act is to reduce the

damage that the manufacture, distribution, and

use of methamphetamine [is] inflicting on children,

families, communities, businesses, the economy,

and the environment in Illinois. The General

Assembly recognizes that methamphetamine is

fundamentally different from other drugs regulated

by the Illinois Controlled Substances Act because

the harms relating to methamphetamine stem not

8
 only from the distribution and use of the drug,

but also from the manufacture of the drug in

this State. Because methamphetamine is not only

distributed and used but also manufactured here,

and because the manufacture of methamphetamine

is extremely and uniquely harmful, the General

Assembly finds that a separate Act is needed to

address the manufacture, distribution, and use

of methamphetamine in Illinois." 720 ILCS 646/5

(West 2008).

Defendant argues section 35 fails the rational basis test,

"as it neither bears a reasonable relationship to the interest it

was intended to protect, nor does it employ a reasonable method

of furthering that interest." Defendant notes the State charged

him with violating section 35 by using his pickup truck to help

bring about a violation of the Act. This, defendant claims,

penalized him for the lawful act of driving a vehicle "solely

because that conduct occurred simultaneously with his possession

of methamphetamine." Noting that section 35 applies to all kinds

of property, not just vehicles, defendant submits that there "is

no rational relationship between reducing the harm caused by

methamphetamine and the use of any property, real or personal, to

9
commit the offense, nor does prohibiting the use of any property

further or protect a legitimate State interest." (Emphasis in

original.)

Intertwined with this constitutional argument are defen-

dant's claims that section 35 is both overbroad and vague.

Defendant argues that section 35 can bear no rational relation-

ship to the purpose of the Act since "the use of any property,

real or personal, sweeps too broadly and punishes innocent as

well as culpable conduct, and [therefore] does not bear a reason-

able relationship to the stated purpose of the Act."

In its response, the State claims that we "deal here only

with the charged use of the pickup truck to help bring about a

violation of the Act and need not be concerned with the use of

other things stated in the statute to help bring about a viola-

tion of the Act." Citing to People v. Jordan, 218 Ill. 2d 255,

843 N.E.2d 870 (2006), the State argues that unconstitutional

provisions of a statute may be severed from the remainder of a

statute if what remains is complete in and of itself and can be

executed wholly independently of the severed part. Therefore,

the State suggests the only question properly before this court

is the constitutionality of section 35's prohibition against one

"knowingly" using a vehicle to bring about a violation of the

10
Act. Defendant claims the State's severability argument is an

acknowledgment that section 35 is unconstitutionally overinclu-

sive as it effectively includes any person, such as the instant

defendant, who possesses methamphetamine while in a car, on land,

in a house, in a nonresidential building, while using any sort of

tool or other object, or even, simply, while clothed.

We agree with the State that we need not address any

provision in section 35 other than its reference to the use of a

vehicle to bring about a violation of the Act. We reach this

conclusion not because of severability issues, but because that

is the actual case that has been presented to us. Our supreme

court has clearly stated:

"We cannot, and need not in this

proceeding, pass upon all hypothetical

situations and tenuous circumstances which

may be presented by counsel. While we

recognize that a valid statute may be

unconstitutionally applied, the precise

limitations to be placed on the words in

question can best be specified when actual

cases requiring such interpretation are

presented." J.G. Stein v. Howlett, 52 Ill.

11
 2d 570, 580-81, 289 N.E.2d 409, 415 (1972).

See Jacobs v. City of Chicago, 53 Ill. 2d 412, 292 N.E.2d 401

(1973).

The "actual case" before us involves the State charging

defendant with bringing about a violation of the Act through the

use of his vehicle. Therefore, we find our inquiry is con-

strained to the consideration of whether section 35's proscrip-

tion on using a vehicle to bring about a violation of the Act

passes the rational basis test. Again, we must uphold the

statute if it bears a reasonable relationship to a public inter-

est to be served and the means adopted are a reasonable method of

accomplishing the desired objective. Adams, 144 Ill. 2d at 390,

581 N.E.2d at 642. In applying the rational basis test, "we must

identify the public interest the statute is intended to protect,

determine whether the statute bears a rational relationship to

that interest, and examine whether the method chosen to protect

or further that interest is reasonable." People v. Boeckmann,

238 Ill. 2d 1, 7, 932 N.E.2d 998, 1002 (2010). We hold the

statute satisfies this test.

While the Act is relatively new, becoming effective on

September 11, 2005, at least one other court has noted that its

"language shows the legislature intended to safeguard the public

12
welfare from the harm caused by manufacturing and distribution of

methamphetamine." People v. Willner, 392 Ill. App. 3d 121, 124,

924 N.E.2d 1029, 1032 (2009). When removing methamphetamine-

related crimes from the Illinois Controlled Substances Act and

creating the Methamphetamine Control and Community Protection

Act, our legislature specifically identified the unique nature of

methamphetamine and the damage it causes within the State of

Illinois. 720 ILCS 646/5 (West 2008). The legislature noted

that methamphetamine is "fundamentally different from other drugs

regulated" in Illinois as it is not only used and distributed

here but also manufactured here. 720 ILCS 646/5 (West 2008).

The legislature proclaimed that manufacturing the drug is so

"extremely and uniquely harmful" that "a separate Act [was]

needed to address" the evils associated with methamphetamine.

720 ILCS 646/5 (West 2008).

In our view, prohibiting the use of a vehicle to bring about

a violation of the Act is a reasonable method of accomplishing

the Act's desired objective: that is, reducing or eliminating

methamphetamine-related crimes in the state and the corresponding

harm caused by those crimes. We find section 35's proscription

against using vehicles to bring about a violation of the Act is

reasonably designed to remedy the evils that the legislature has

13
determined to be a threat to the public health, safety and

general welfare of the state and is reasonably related to

stopping the manufacturing and distribution of methamphetamine in

the state. The legislature has the power to limit the use of a

vehicle, or other property, that one intends to use to violate

the Act. See People v. Hickman, 163 Ill. 2d 250, 644 N.E.2d 1147

(1994) (the legislature has the power to declare and define

criminal conduct and to determine the type and extent of

punishment for it).

Our holding finds support from People v. McCarty, 223 Ill.

2d 109, 858 N.E.2d 15 (2006). In McCarty, when presented with a

challenge that a specific methamphetamine law was not reasonably

designed to remedy the particular evil that the legislature

targeted when enacting it, our supreme court gave great deference

to the legislature. In McCarty, defendants manufactured a

substance containing methamphetamine but did not produce any

"usable methamphetamine." McCarty, 223 Ill. 2d at 135, 858

N.E.2d at 32. The McCarty defendants did not present the exact

same challenge as defendant herein, but they did argue that,

since they produced no usable methamphetamine, "their 15-year

minimum sentences are not reasonably designed to remedy the harm

the legislature sought to address" when establishing the

14
methamphetamine laws. McCarty, 223 Ill. 2d at 135, 858 N.E.2d at

32. Our supreme court disagreed and noted that the "legislature

could reasonably have concluded that punishing manufacturers of

methamphetamine with a strict penalty, regardless of the ultimate

success of their enterprise, discourages even casual

experimentation with producing the drug, thereby reducing the

quantity of the drug available to individuals with no 'legitimate

reason to possess' it [citation], and preventing its 'unlawful

and destructive abuse.' [citation]." McCarty, 223 Ill. 2d at

139-40, 858 N.E.2d at 34.

Similarly, the legislature could reasonably have concluded

that punishing those who use vehicles to help bring about a

violation of the Act discourages transport associated with

producing or distributing the drug, thereby reducing the quantity

of the drug available. As such, we reject defendant's claim that

section 35 "neither bears a reasonable relationship to the

interest it was intended to protect, nor [employs] a reasonable

method of furthering that interest."

2. Vagueness

We also find defendant's claim of vagueness to be without

merit. The determination of whether a statute is void for

vagueness must be made in the factual context of each case.

15
Falbe, 189 Ill. 2d at 639, 727 N.E.2d at 203-04.

"In order to satisfy constitutional

principles of due process, a statute must

give a person of ordinary intelligence a

reasonable opportunity to know what is

prohibited, so that he may act accordingly,

and provide explicit standards for those

police officers, judges and juries who

apply it in order to prevent arbitrary and

discriminating enforcement. [Citations.]

Where, as here, no first amendment concern

is implicated, there is no right to challenge

the statute as being vague on its face if it

clearly applies to defendants' conduct.

[Citation.] Thus, the issue is whether [the

statute] is unconstitutionally vague as applied

to the conduct for which these defendants were

prosecuted." (Emphasis in original.) People v.

Conlan, 189 Ill. 2d 286, 292, 725 N.E.2d 1237,

1240 (2000).

Defendant does not argue that the sections of the Act that

prohibit participating in methamphetamine manufacturing (720 ILCS

16
646/15 (West 2008)), possessing a methamphetamine precursor with

the intent to manufacture methamphetamine (720 ILCS 646/20 (West

2008)), or simple possession of methamphetamine (720 ILCS 646/60

(West 2008)) are vague. Defendant simply submits that section 35

is vague as it "is unclear whether this section aims to prevent

one from assisting another, or whether it means that a person

cannot use any property, real or personal, to himself commit a

separate violation of the Act."

A statute is not unconstitutionally vague if it gives a

person of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly, and provides

explicit enough standards for those police officers, judges, and

juries who apply them in order to prevent arbitrary and

discriminatory enforcement. Grayned v. City of Rockford, 408

U.S. 104, 108-09, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2298-

99. Section 35 is sufficiently clear to provide a person of

ordinary intelligence with fair notice that, if he uses a vehicle

to bring about a violation of the Act, he violates that section

of the Act and, therefore, commits a Class 2 felony.

We also reject defendant's contention that section 35

encourages arbitrary and discriminatory enforcement. Defendant

notes that section 35 "allows the prosecutor to enhance, for

17
example, simple possession of less than 5 grams of

methamphetamine from a Class 3 felony to a Class 2 felony simply

because a person possesses methamphetamine while driving a car,

as occurred in the instant case."

When considering similar challenges, our supreme court has

invalidated penal legislation when "a criminal ordinance vests

unfettered discretion in the police to determine whether a

suspect's conduct has violated the ordinance" (City of Chicago v.

Morales, 177 Ill. 2d 440, 457, 687 N.E.2d 53, 63 (1997)), as such

legislation "'entrust[s] lawmaking "to the moment-to-moment

judgment of the policeman on his beat."'" (Morales, 177 Ill. 2d

at 457, 678 N.E.2d at 63, quoting Smith v. Goguen, 415 U.S. 566,

575, 39 L. Ed. 2d 605, 613, 94 S. Ct 1242, 1248 (1974), quoting

Gregory v. City of Chicago, 394 U.S. 111, 120, 22 L. Ed. 2d 134,

141, 89 S. Ct. 946, 951 (1969)).

Section 35 is not a statute that encourages arbitrary

enforcement like others that penalized "rogues," "vagabonds," or

"habitual loafers." See Kolender v. Lawson, 461 U.S. 352, 75 L.

Ed. 2d 903, 103 S. Ct. 1855 (1983); see also Papachristou v. City

of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839

(1972). In the context of the facts before us, section 35 does

not allow police or prosecutors to detain or prosecute people

18
"practically at their whim." People v. Anderson, 148 Ill. 2d 15,

30, 591 N.E.2d 461, 468 (1992). As such, we see no danger of

arbitrary enforcement of section 35's prohibition against using a

vehicle to bring about a violation of the Act. This prohibition

makes clear that charges may be brought only when there is

probable cause to believe one has violated the Act and used a

vehicle to do so.

3. Overbreadth

We are also not persuaded by defendant's overbreadth

challenge. Defendant argues that section 35 is "overbroad" in

that "it is impossible to conceive of a way to violate any other

Section fo the Act without also violating [section] 35. In this

fashion, Section []35 is overbroad." We disagree. Defendant has

cited no case law supporting this contention. The United States

Supreme Court noted that, "Rarely, if ever, will an overbreadth

challenge succeed against a law or regulation that is not

specifically addressed to speech or to conduct necessarily

associated with speech (such as picketing or demonstrating)."

Virginia v. Hicks, 539 U.S. 113, 124, 156 L. Ed. 2d 148, 160, 123

S. Ct. 2191, 2199 (2003). Defendant's first amendment rights are

not implicated in this matter and he cites no authority to even

suggest an overbreadth challenge is applicable in this instance.

19
 Furthermore, it is certainly not overbroad in the context of

the instant facts. It is quite easy to conceive of violations of

the Act that do not involve the use of a vehicle.

B. Sufficiency of the Evidence

Defendant next contends that the State failed to prove him

guilty of possession of precursor with intent to manufacture

methamphetamine beyond a reasonable doubt. Defendant argues that

his claim regarding the evidence adduced at trial "does not

entail any assessment of the credibility of witnesses, but only

the determination [of] whether a certain set of facts sufficed to

meet the State's burden of proof," and therefore, our review is

de novo. We disagree. As detailed below, the State and

defendant cite to very different pieces of evidence when arguing

about whether the State proved each essential element of the

offense beyond a reasonable doubt. Defendant discusses what

certain evidence "suggested" and the State refers to "reasonable

inferences" to be drawn from other evidence. Our standard of

review on this issue is to decide, after reviewing the evidence

in the light most favorable to the prosecution, if any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. People v. Cunningham, 212 Ill.

2d 274, 818 N.E.2d 304 (2004).

20
 Defendant argues no rational trier of fact could have made

such a finding concerning his conviction for possession of a

methamphetamine precursor with intent to manufacture

methamphetamine in violation of section 20(b)(1) of the Act.

Section 20(b)(1) states:

"It is unlawful to knowingly possess,

procure, transport, store, or deliver any

methamphetamine precursor or substance

containing any methamphetamine precursor in

any form other than a standard dosage form

with the intent that it be used to manufacture

methamphetamine or a substance containing

methamphetamine." 720 ILCS 646/20(b)(1)

(West 2008).

Defendant claims that he "cannot truly be said to have

possessed" a precursor since the "forensic scientist suggested

that defendant possessed [actual] methamphetamine, and that the

methamphetamine contained [the] precursor, an ingredient that had

not been fully integrated into the methamphetamine." Defendant

is referring to Joni Mitchell's testimony in which she described

the substance recovered from both the front seat of defendant's

pickup and the blue bowl as containing both methamphetamine and

21
pseudoephedrine. Mitchell also noted that she could not deter-

mine what percentage of the substance was methamphetamine and

what percentage was pseudoephedrine, but that, much of the time,

not all the pseudoephedrine gets cooked up and some is left

behind after the manufacturing process."

Defendant argues this testimony, at best, shows that any

precursor (pseudoephedrine) he did possess was not intended to be

used to manufacture additional methamphetamine but was, instead,

merely not fully cooked in the methamphetamine he already

possessed. The flaw in defendant's argument is, as the State

indicates, that he fails to consider both the possession of the

precursor, pseudoephedrine, and the intent to manufacture in the

context of all the evidence.

It is undisputed that a number of manufacturing materials

were found at the Quonset hut. These materials included a bucket

and other containers, plastic gloves, salt, Coleman fuel, Liquid

Fire, coffee filters, side cutters, a pocket knife and battery

peelings. Defendant neither disputes these items were found in

an area in which he was seen nor that they are used to manufac-

ture methamphetamine. The State notes this is not a situation in

which a defendant is caught merely possessing a bag of metham-

phetamine. Defendant possessed both methamphetamine and

22
pseudoephedrine after leaving an area that, unquestionably, had

been used to manufacture methamphetamine. From these facts, the

State argues, the jury could have reasonably inferred that

defendant was interrupted in his manufacturing of methamphetamine

and, given his flight and choice to retain possession of that

pseudoephedrine, intended to manufacture it later. We agree and,

therefore, find that when we view the evidence in the light most

favorable to the prosecution, the State proved beyond a reason-

able doubt all the essential elements necessary to convict

defendant of violating section 20(b)(1) of the Act. 720 ILCS

646/20(b)(1) (West 2008).

C. One-Act, One-Crime Challenges

Defendant's final contention is that his convictions for

possession of methamphetamine and unlawful possession of

methamphetamine precursor with intent to manufacture must be

vacated as lesser-included offenses of unlawful use of property.

Defendant acknowledges he failed to raise this issue below, but

invites us to review it as plain error. The State agrees that if

the conviction for unlawful use of property is affirmed, we must

vacate the conviction for possession of methamphetamine and

methamphetamine precursor as lesser-included offenses.

It is well settled that the plain error doctrine allows a

23
reviewing court to consider unpreserved errors when a clear and

obvious error occurs and the evidence is closely balanced so that

the error alone threatened to tip the scales of justice against

defendant. People v. Lewis, 234 Ill. 2d 32, 912 N.E.2d 1220

(2009). A court of review may also consider unpreserved errors

when a clear and obvious error occurs and that error is so

serious that it affected the fairness of the defendant's trial

and challenged the integrity of the judicial process, regardless

of the closeness of the evidence. Lewis, 234 Ill. 2d at 42-43,

912 N.E.2d at 1226-27.

Our supreme court is clear that an "alleged one-act, one-

crime violation and the potential for a surplus conviction and

sentence affects the integrity of the judicial process, thus

satisfying the second prong of the plain error rule." People v.

Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194 (2004). As

such, we will address defendant's claims that his convictions for

unlawful possession of methamphetamine and unlawful possession of

methamphetamine precursor with the intent to manufacture must be

vacated given his conviction and sentence for unlawful use of

property.

One-act, one-crime analysis involves two steps: (1) the

reviewing court must determine whether the defendant's conduct

24
consisted of one physical act or separate physical acts and, if

the court concludes that the conduct consisted of separate acts;

then, (2) the court must determine whether any of those offenses

are lesser-included offenses. In re Rodney S., 402 Ill. App. 3d

272, 932 N.E.2d 588 (2010). As this court has noted, an "act" is

any "'overt or outward manifestation which will support a

different offense.'" People v. Horrell, 381 Ill. App. 3d 571,

573-74, 885 N.E.2d 1218, 1221 (2008), quoting People v. King, 66

Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). "Multiple

convictions are improper if they are based on precisely the same

physical act." People v. Artis, 232 Ill. 2d 156, 165, 902 N.E.2d

677, 683 (2009).

Defendant's conviction for unlawful possession of

methamphetamine precursor was based on evidence that defendant

knowingly possessed or stored pseudoephedrine with the intent

that less than 10 grams of methamphetamine be manufactured in

violation of section 20(b)(1) of the Act. As noted above in

subsection B, the State proved defendant guilty of this crime

beyond a reasonable doubt.

Defendant's conviction for unlawful possession of

methamphetamine was based on evidence that defendant unlawfully

and knowingly possessed less than five grams of methamphetamine

25
or a substance containing methamphetamine in violation of section

60(a) of the Act. Defendant does not challenge the sufficiency

of the evidence on this charge.

Defendant's conviction for unlawful use of property indicate

that defendant, in violation of section 35(a) of the Act,

unlawfully and knowingly used his 1990 Ford Ranger pickup truck

to help bring about a violation of the Act, possession of

methamphetamine.

Defendant's convictions are based on three separate acts:

possessing pseudoephedrine, possessing methamphetamine, and using

a vehicle to help possess methamphetamine. The three counts and

convictions are not based on "precisely the same physical act."

As such, defendant's convictions only violate one-act, one-crime

principles if one is a lesser-included offense of the other.

To determine whether defendant's convictions for possession

of methamphetamine precursor and/or possession of methamphetamine

are lesser-included offenses of unlawful use of property, we

employ the abstract elements approach. People v. Miller, No.

107878 (September 23, 2010). "Under the abstract elements

approach, a comparison is made of the statutory elements of the

two offenses. If all of the elements of one offense are included

within a second offense and the first offense contains no element

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not included in the second offense, the first offense is deemed a

lesser-included offense of the second. *** In other words, it

must be impossible to commit the greater offense without

necessarily committing the lesser offense." Miller, slip op. at

4.

The instruction tendered to the jury concerning unlawful use

of property parroted the statutory elements but also identified

only possession of methamphetamine as the predicate violation of

the Act. The jury instruction reads as follows:

"A person commits the offense of

unlawful use of property when he knowingly

uses or allows the use of a vehicle within

his control to help bring about a violation

of Methamphetamine Control and Community

Protection Act, being the unlawful possession

of methamphetamine.

A vehicle within his control means the

power or authority to direct, restrict or

regulate the use of the vehicle."

All of the elements of possession of methamphetamine are

included in defendant's conviction for unlawful use of property.

As such, we vacate defendant's conviction for possession of

27
methamphetamine and remand to the circuit court to revise the

sentencing order to reflect the same. However, we disagree with

the State and defendant that defendant's conviction for

possession of methamphetamine precursor must be vacated. We

acknowledge that the State confesses error on this issue.

Nevertheless, as a court of review, we are not bound by a party's

concession (People v. Horrell, 235 Ill. 2d 235, 919 N.E.2d 952

(2009); People v. Kliner, 185 Ill. 2d 81, 705 N.E.2d 850 (1998))

and may affirm the trial court's ruling on any grounds evident in

the record (Gunthorp v. Golan, 184 Ill. 2d 432, 704 N.E.2d 370

(1998); Fitch v. McDermott, Will & Emery, LLP, 401 Ill. App. 3d

1006, 929 N.E.2d 1167 (2010); Brandon v. Bonell, 368 Ill. App. 3d

492, 858 N.E.2d 465 (2006)).

The instruction given to the jury makes it evident to us

that defendant's conviction for unlawful use of property is based

on the use of his vehicle while possessing methamphetamine, and

only methamphetamine. While defendant's conviction for unlawful

use of property fully encompassed his conviction for possession

of methamphetamine, in that it included every element of that

crime, his unlawful use of property conviction is unrelated to

the separate act of possession of a methamphetamine precursor.

None of the elements of possession of a methamphetamine precursor

28
laid the groundwork for defendant's conviction of unlawful use of

property; his unlawful use of property conviction would stand

even had he not possessed the pseudoephedrine. As such,

defendant's conviction for possession of methamphetamine

precursor is not a lesser-included offense of his unlawful use of

property conviction.

We note that had the unlawful use of property charge been

predicated on the unlawful possession of a methamphetamine

precursor, the result would have been different. We do not

suggest that possession of the precursor cannot be a lesser-

included offense of unlawful use of property.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Hancock County is affirmed with the exception of defendant's

conviction for possession of methamphetamine (720 ILCS 646/60(a)

West 2008)), which the parties and we agree must be, and is,

vacated as a lesser-included offense of unlawful use of property.

This cause is remanded to the circuit court to modify its

sentencing order consistent with this opinion.

Affirmed in part and vacated in part; cause remanded with

directions.

CARTER and O'BRIEN, JJ., concur.

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