                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Coots, 2012 IL App (2d) 100592




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    AMANDA K. COOTS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0592


Filed                      April 16, 2012


Held                       Defendant’s conviction for drug-induced homicide arising from the death
(Note: This syllabus       of her companion from heroin was reversed and the cause was remanded
constitutes no part of     for a new trial where defense counsel was ineffective in failing to request
the opinion of the court   a complete instruction on the meaning of “delivery,” especially when the
but has been prepared      jury’s question about the meaning of “delivery” suggested that defendant
by the Reporter of         could be found guilty of drug-induced homicide for merely handing
Decisions for the          heroin to the victim.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McHenry County, No. 09-CF-827; the
Review                     Hon. Sharon L. Prather, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Thomas A. Lilien and Barbara R. Paschen, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M. Bauer
                           and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justice Burke concurred in the judgment and opinion.
                           Justice McLaren specially concurred in the judgment, with opinion.




                                             OPINION

¶1           After a jury trial, defendant, Amanda K. Coots, was convicted of drug-induced homicide
        (720 ILCS 5/9-3.3(a) (West 2008)), based on the death of Rustin Cawthon from heroin, and
        was sentenced to 10 years’ imprisonment. On appeal, she contends that (1) she was not
        proved guilty beyond a reasonable doubt, because the evidence showed at most that she and
        Cawthon jointly possessed the fatal heroin, not that she “deliver[ed]” (id.) it to him; and (2)
        her attorney was ineffective for failing to request a supplemental instruction, based on the
        joint possession theory, in response to the jury’s question about the meaning of “delivery.”
        We reverse and remand for a new trial.
¶2           The indictment against defendant alleged that she knowingly delivered a substance
        containing heroin, a controlled substance, to Cawthon, in violation of section 401 of the
        Illinois Controlled Substances Act (720 ILCS 570/401 (West 2008)), and that Cawthon died
        by ingesting some of the heroin. We summarize the pertinent evidence at trial.
¶3           Neil Patel testified as follows. On Friday, June 5, 2009, he managed the Super 8 Motel
        in McHenry. That evening, defendant and Cawthon checked into a room. The next day, at
        about 11 a.m., she and Cawthon checked out and left in a cab. At about 12:30 p.m., they
        returned and rented room 119. On Sunday, at about 10:45 a.m., housekeeper Leticia Cortez
        knocked on the door to room 119. Receiving no response, she opened the door and saw
        Cawthon sitting in a chair. Cortez left and told Patel what she had seen. Patel called the
        room, got no response, then went to the room and opened the door. Cawthon was not
        moving. Patel called the police.
¶4           McHenry police officer Derrick Kay testified that, shortly after 11 a.m. on June 7, 2009,
        he arrived at room 119. Cawthon was lying motionless in a recliner; foam had accumulated
        around his mouth and nose. Nobody else was there until medical personnel and Detective
        Marc Fisher entered.


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¶5          Kimberly Bostic, a McHenry County deputy coroner, testified as follows. At about 11:32
       a.m. on June 7, 2009, she arrived at room 119 and examined Cawthon’s body. Rigor mortis
       had set in. Bostic explained that rigor mortis sets in about 10 to 12 hours after death and
       starts to reverse itself about 24 to 36 hours after death. Bostic could not determine precisely
       when Cawthon died. Cawthon’s body was taken to the county morgue, where Bostic helped
       Dr. Mark Peters perform the autopsy. Peters testified that fluid samples from the laboratory
       established that Cawthon had died from the adverse effects of heroin.
¶6          Joane Kurth, a taxi driver, testified that, on June 6, 2009, at about 11:30 a.m., she picked
       up defendant and Cawthon at the Super 8. Kurth drove to a bank in Wauconda, where
       Cawthon exited. Five minutes later, he returned and told defendant that he had withdrawn
       $1,000 from his account. Kurth then returned to the Super 8, dropping defendant and
       Cawthon off at 12:30 or 1 p.m. At about 4:15 p.m., Kurth returned to the Super 8, where she
       picked up defendant, who was alone. Kurth drove her to a subdivision in Wauconda.
¶7          The trial court admitted a copy of a statement that defendant gave Fisher on June 8, 2009.
       It related the following. On the afternoon of Friday, June 5, 2009, Cawthon called her and
       asked whether she wanted to get a hotel room and “party.” She agreed, so they got a ride,
       picking up beer along the way. Next, they checked into the Super 8, drank beer in their room,
       and went to sleep. On Saturday, at 11 a.m., they took a cab to Cawthon’s bank, where he
       withdrew $1,000 and suggested that they “party” with heroin. Defendant said that she was
       not sure whether she could get heroin. They returned to the Super 8 and got another room.
       At Cawthon’s request, defendant made some calls, but with no luck. At about 3 p.m., she
       called “A.J.” for the third time; A.J. said that he could deliver six bags of heroin for $100 and
       would be there within an hour. At 3:30 or 4 p.m., defendant decided to take a cab home to
       shower and change, because she had no clean clothes at the motel. The cab arrived at about
       4 p.m. A.J. had not shown up yet. At about 4:30 p.m., defendant got home, showered, and
       ate. She called room 119 to tell Cawthon that she did not have a ride back to the motel, but
       nobody answered. At about 8 p.m., she went to sleep.
¶8          Detectives Fisher and Ryan Sciame interviewed defendant at the police station on August
       4, 2009. The trial court played the videotape for the jury. We summarize the tape.
¶9          Initially, defendant gave Fisher and Sciame approximately the same account as in her
       written statement. She said that, on the afternoon of June 6, 2009, she called several possible
       drug suppliers; that she called A.J. about an hour or an hour and a half after she checked into
       room 119, telling him that, if she were not there to meet A.J., Cawthon would be; and that
       she left the motel at about 3:30 or 4 p.m., before A.J. showed up. The detectives expressed
       doubt that she had left before A.J. showed up. They noted that phone records proved that A.J.
       had been at the Super 8 before defendant left. Further, the evidence of when Cawthon went
       into rigor mortis proved that he was already dead when defendant left. Defendant then
       changed her story.
¶ 10        Defendant told the detectives that A.J. “brought up the shit” and dropped it off, although
       she could not remember exactly when. Sciame told defendant that she had said she left the
       motel at 4 p.m., and he asked how long before then A.J. had dropped off the heroin. She
       responded, “probably an hour, tops.” After A.J. left, Cawthon told defendant that he wanted


                                                 -3-
       to “go first.” Defendant, who had brought along only one needle, acquiesced. Cawthon, who
       was sitting on the bed, ingested the first bag. As defendant was using her first two bags
       simultaneously, Cawthon complained that he was not high, and he asked for another bag.
       Defendant told him, “You need to just wait.” Defendant estimated that she waited 10 to 15
       minutes. During that time, Cawthon “kept begging and begging.”
¶ 11       Defendant told the detectives, “I had the bags in my pocket, so I wasn’t going to give it
       to him.” Cawthon kept “begging,” so she said, “All right, Rusty, whatever. You’re a grown
       man, you do what you’ve got to do.” Defendant explained, “it was his money, he paid for it.”
       She gave him another bag. She then threw her one needle into the garbage, took her cooker,
       and left.
¶ 12       Defendant next said that, on June 6, 2009, she and Cawthon arrived at room 119 between
       1:30 and 2 p.m. Shortly afterward, A.J. “came in, gave it to me, and walked back out.” He
       was there about five minutes, leaving at about 2:30 p.m. Defendant left the motel between
       3:30 and 4 p.m.
¶ 13       The interview returned to defendant’s and Cawthon’s use of the heroin. Defendant said
       that Cawthon sat at the desk against the wall and used defendant’s needle to inject one bag.
       Five minutes later, he started “bitching” that he was “not even high,” and he asked defendant
       for “another one.” Defendant told him to “wait a little bit.” Five minutes later, Cawthon
       complained again that he was “not high.” He “bitched for maybe 5 or 10 minutes” while
       defendant was finishing her first two bags. When she was done, she “gave him the bag.”
       Cawthon injected the second bag while sitting on the bed, then got up and sat in the chair.
¶ 14       In closing arguments, the parties focused on whether the evidence proved that defendant
       had “deliver[ed]” (720 ILCS 5/9-3.3(a) (West 2008)) heroin to Cawthon. The State
       contended that defendant was guilty because she “gave Rustin Cawthon heroin” that killed
       him. The heroin “went from [defendant’s] hand into Rustin Cawthon’s bloodstream by
       injecting it with the rig that [defendant] gave to him.” That Cawthon paid for the heroin did
       not negate defendant’s guilt. More important was that defendant, not Cawthon, had a
       supplier–A.J.–and she called him repeatedly to obtain heroin. Also, she gave Cawthon one
       bag, lent him her needle to ingest it, and then removed another bag from her pocket and
       handed it to Cawthon. The heroin that defendant removed from her control and gave
       Cawthon contributed to his death, making her guilty of drug-induced homicide.
¶ 15       In response, defendant’s attorney observed that the decision to “party” originated with
       Cawthon and that Cawthon used his money, not hers, to obtain the heroin. Defendant’s
       attorney told the jury that defendant and Cawthon were both “consumers of heroin” who
       were “at the bottom of the food chain in the heroin distribution cycle.” In rebuttal, the State
       countered that, according to the evidence, defendant had called A.J., arranged the purchase,
       and given Cawthon both the heroin and the needle that he used to consume it.
¶ 16       During deliberations, the jury sent the judge a note reading, “With respect to the
       definition of the term ‘delivery,’ may the jury reasonably interpret the term to mean
       ‘give[?]’ ” The judge proposed “to refer the jury to their jury instructions.” The prosecutor
       and defendant’s attorney agreed. The judge wrote to the jury, “Please refer to your jury
       instructions.” The jury convicted defendant. The court denied her motion for a new trial and


                                                -4-
       sentenced her to 10 years’ imprisonment. She appealed.
¶ 17        On appeal, defendant contends first that she was not proved guilty beyond a reasonable
       doubt, because the evidence did not allow the jury to find that she “unlawfully deliver[ed]”
       (720 ILCS 5/9-3.3(a) (West 2008)) the heroin that caused Cawthon’s death. (Emphasis
       added.) Relying on a line of foreign case law that appears to have originated with United
       States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), defendant contends that the evidence
       proved only that she and Cawthon jointly possessed the heroin and that their status as joint
       possessors meant that she was not guilty of delivering the heroin to Cawthon.
¶ 18        In considering a challenge to the sufficiency of the evidence, we ask only whether, after
       viewing all of the evidence in the light most favorable to the State, any rational fact finder
       could have found the elements of the offense proved beyond a reasonable doubt. People v.
       Ward, 154 Ill. 2d 272, 326 (1992); People v. Hill, 272 Ill. App. 3d 597, 603-04 (1995). The
       trier of fact is responsible for determining the witnesses’ credibility, weighing their
       testimony, and deciding on the reasonable inferences to be drawn from the evidence. People
       v. Lamon, 346 Ill. App. 3d 1082, 1089 (2004).
¶ 19        Whether defendant’s conduct fit within the statute turns not only on what facts the jury
       could reasonably have found, but also on the legal effect of those facts. Therefore, we must
       construe the drug-induced-homicide statute, specifically the language “delivering a
       controlled substance to another.” 720 ILCS 5/9-3.3(a) (West 2008). To begin, we discuss
       Swiderski and related authority.
¶ 20         In Swiderski, the court framed the issue as “whether joint purchasers and possessors of
       a controlled substance, who intend to share it between themselves as users, may be found
       guilty of the felony of possession ‘with the intent to distribute’ ” under the pertinent federal
       statute. Swiderski, 548 F.2d at 447. The evidence, viewed most favorably to the prosecution,
       showed the following. Swiderski arranged to buy cocaine from Davis. A few days later,
       Swiderski and De Los Santos, his fiancée and codefendant, picked up Davis in Swiderski’s
       van, showed him a large sum of cash, and drove to an apartment. There, Bush, a supplier
       whom Davis had found, gave Swiderski cocaine. Swiderski and De Los Santos both sampled
       it. She said that it was not good enough for their personal use, but they had a buyer who
       would take it; Swiderski paid Bush $1,250 and put the cocaine into his pocket. They drove
       off with Davis. Drug enforcement agents stopped Swiderski’s van and arrested the
       defendants. Searches revealed that Swiderski had $529 cash in his pocket; De Los Santos had
       $3,100 cash and the cocaine in her purse. Id. at 447-48.
¶ 21        The government argued to the jury that the defendants were guilty of possession with the
       intent to distribute even if they had bought the cocaine intending solely to share it between
       themselves as users. During deliberations, the jury asked the trial court whether, had both
       defendants possessed the cocaine, intent to distribute could “ ‘mean giving the drug to the
       other[,] or must third parties be involved?’ ” Id. at 449. The judge instructed the jury that
       distribution could be satisfied solely by a transfer from one defendant to the other. The jury
       found both defendants guilty. Id.
¶ 22        The court of appeals reversed. It observed that the statute defined “distribute” as
       “deliver,” which in turn was defined as to “transfer.” Id.; see 21 U.S.C. § 802(8), (11) (2006).


                                                 -5-
       The court then sought to place the statute into “the statutory drug enforcement scheme as a
       whole, which draws a sharp distinction between drug offenses of a commercial nature and
       illicit personal use of controlled substances.” Swiderski, 548 F.2d at 449. Congress had
       intended to penalize the former more severely than the latter, because commercial trafficking
       “tends to have the dangerous, unwanted effect of drawing additional participants into the web
       of drug abuse.” Id. at 450. However:
            “[W]here two individuals simultaneously and jointly acquire possession of a drug for
            their own use, intending only to share it together, their only crime is *** simple joint
            possession, without any intent to distribute the drug further. Since both acquire
            possession from the outset and neither intends to distribute the drug to a third person,
            neither serves as a link in the chain of distribution. For purposes of the [federal statute,]
            they must therefore be treated as possessors for personal use rather than for further
            distribution.” Id.
¶ 23        Unlawful delivery did not include “the exchange of physical possession between two
       persons who jointly acquired and hold the drug for their own use.” Id. Thus, the trial court
       had erred in instructing the jury that either defendant intended to deliver the cocaine even if
       he or she planned only to give it to the other one. The court reduced the convictions to simple
       possession. Id. at 452.
¶ 24        In People v. Edwards, 702 P.2d 555 (Cal. 1985), which did not rely on Swiderski, the
       defendant was convicted of furnishing and/or administering heroin and second-degree
       murder. The victim was his girlfriend, Rogers. The evidence showed that, at a bar, one Royce
       told the defendant and Rogers that he could get heroin for them. The defendant and Rogers
       agreed with the idea and, along with Royce and a woman, Mullican, drove to a motel. The
       defendant gave Mullican money. Mullican exited, purchased the heroin, and returned to the
       car. The foursome drove to Mullican’s house. There, she injected both the defendant and
       Rogers with heroin. Rogers died from an accidental overdose. Id. at 557-58.
¶ 25        The California Supreme Court held that the trial court erred in refusing to instruct the
       jury that the defendant could not be convicted of furnishing heroin to Rogers if he and
       Rogers were merely co-purchasers of the heroin. (The court also held that the jury should
       have been instructed on the offense of involuntary manslaughter. This holding was based on
       the same reasoning as follows.) The court recognized a distinction “between one who sells
       or furnishes heroin and one who simply participates in a group purchase ***, at least where
       the individuals involved are truly ‘equal partners’ in the purchase and the purchase is made
       strictly for each individual’s personal use.” Id. at 559. The court cautioned that it expected
       “few cases involving a copurchase by truly equal partners” and that, if one of the purchasers
       takes a more active role in instigating, financing, arranging, or carrying out the purchase, he
       might still be guilty of furnishing to the less active one. Id. at 559 n.5
¶ 26        The court held that the trial court should have provided the instructions at issue, because
       the jury reasonably could have found that the defendant and Rogers had been equal partners.
       There was evidence that (1) Royce instigated the purchase; (2) the purchase money was
       supplied by both the defendant and Rogers; (3) the defendant and Rogers mutually decided
       on the purchase; and (4) the defendant and Rogers both actively consummated the purchase.


                                                  -6-
       Id. at 559-60.
¶ 27       In State v. Carithers, 490 N.W.2d 620 (Minn. 1992), the Minnesota Supreme Court
       construed a statute making it felony murder to proximately cause the death of another person
       by furnishing a controlled substance, with “furnishing” defined as, in part, “ ‘delivering ***
       distributing or administering.” Id. at 620 (quoting Minn. Stat. § 609.195(b) (1990)). In
       separate cases, each of the two defendants had purchased a controlled substance, taken it
       home, and shared the use with his or her spouse, who died. The court held that neither could
       be convicted under the statute:
                “If a husband and wife jointly acquire the drug, each spouse has constructive
           possession from the moment of acquisition, whether or not both are physically present
           at the transaction. The absent spouse could be charged with constructive possession at
           any time following the purchase by his or her confederate. That the absent spouse did not
           exercise physical control over the substance at the moment of acquisition is an
           irrelevancy when there is no question that the absent spouse was then entitled to exercise
           joint physical possession.” (Emphasis in original.) Id. at 622.
¶ 28       Discussing Swiderski, the court allowed that one who acquires drugs on his own, then
       uses them with another, might come within the statute. However, the cases before the court
       involved only “joint acquisition and possession of drugs” under circumstances not showing
       a sale, transfer, or delivery to the victim. Id. at 623-24; see also State v. Lopez, 819 A.2d 486,
       493-94 (N.J. Super. Ct. App. Div. 2003) (citing Swiderski, court held that defendant could
       not be convicted of possession with intent to distribute marijuana merely for having jointly
       acquired and possessed marijuana with other person solely for their own use).
¶ 29       Not all defendants who have invoked Swiderski have succeeded. Several courts have
       construed its holding narrowly. In particular, they have held that the fact that two or more
       people have paid for drugs will not prevent one of them from being guilty of delivery or
       distribution–or intent to deliver or distribute–if he alone obtains the drugs at a separate
       location and then returns to share their use with his co-purchasers. In United States v. Wright,
       593 F.2d 105 (9th Cir. 1979), the defendant was convicted of distributing heroin. On appeal,
       he argued that the trial court should have given the jury an instruction based on Swiderski.
       The court disagreed, holding that Swiderski, “even if correct,” did not control. Id. at 108.
       Crucial was that, at best, the evidence had shown only that the distributee asked the
       defendant to buy heroin for both of them to use; that she gave him the money to buy the
       heroin but did not tell him where to buy it; and that the defendant left her residence and
       returned, after which he and she enjoyed the heroin together. Id. Thus, the defendant had
       facilitated the transfer of the drug, whereas Swiderski and his co-user had “ ‘simultaneously
       and jointly acquire[d] possession of a drug for their [his and another’s] own use.’ ” Id.
       (quoting Swiderski, 548 F.2d at 450). In Wright, the two co-purchasers had not acquired the
       drug simultaneously at the same place; rather, by his separate errand, the defendant had
       “operated as the link between the person with whom he intended to share the heroin and the
       drug itself.” Id. Therefore, he had no right to the Swiderski instruction. Id.
¶ 30       In State v. Toppan, 425 A.2d 1336 (Me. 1981), the court, in contrast to the Carithers
       court, rejected a property-rights-based approach to distinguishing delivery from joint


                                                  -7-
       possession. The defendant grew marijuana in a garden on property that he and his wife
       owned in joint tenancy. The marijuana garden was “a joint enterprise, the product of which
       was to be enjoyed solely” by the defendant and two friends. Id. at 1338. All three had
       contributed money, seeds, and labor to the production effort. Id. at 1337. After the defendant
       was convicted of unlawfully furnishing marijuana, he appealed. He contended that he had
       not furnished–i.e., transferred–the marijuana to his fellow venturers, because, from the start,
       all three had shared ownership and possession of the drug. The court disagreed. Because the
       possession, transfer, and sale of marijuana were against the law, the business agreement
       created no rights of ownership or possession. Id. at 1339. Therefore, the crucial consideration
       was that, before the harvest, the defendant had had “practical control” over the marijuana
       (having owned the farm on which it was grown), so that, by dividing the crop, he transferred
       “factual control” of some of the drug to his friends. Id.
¶ 31        Long v. United States, 623 A.2d 1144 (D.C. 1993), followed Toppan’s reasoning. The
       defendant was convicted of possessing heroin with the intent to distribute it. He and several
       friends had contributed to a fund to purchase heroin to consume among themselves. The
       defendant took the money, bought the drug on the street, then returned to his apartment,
       where he started to prepare the heroin but was interrupted by a police raid. On appeal, he
       contended that he should have been allowed to argue to the jury that his conduct was not
       distribution or intended distribution under the federal statute. The court of appeals affirmed.
       Following Wright, the court distinguished Swiderski as having involved a joint and
       simultaneous purchase by the co-users, whereas in Long the defendant had brought the drugs
       home to his friends, thus serving as “ ‘a link in the chain of distribution.’ ” Id. at 1151
       (quoting Swiderski, 548 F.2d at 450).
¶ 32        Also, following Toppan, the court rejected the defendant’s argument that his companions,
       having paid for the heroin, thereby immediately became joint possessors, each with a right
       to his fair share of the drug. The court reasoned that nobody has a property right in
       contraband. Id. at 1148. Therefore, without recourse to rules that “might prevail if Long had
       purchased rare books, rice, or roses” (id.), the crux of the matter was whether the defendant
       had had “ ‘practical control’ ” of the heroin (id. (quoting Toppan, 425 A.2d at 1339)). He
       had. Thus, had he realized his intention to divide the heroin among the co-purchasers, a
       “ ‘transfer of factual control’ ” would have occurred. (Emphasis omitted.) Id. (quoting
       Toppan, 425 A.2d at 1339).
¶ 33        Other courts have similarly held that one who obtains drugs on his own and then transfers
       physical possession to another has committed delivery and not mere joint possession, even
       if the other person paid for all or part of the contraband and it was purchased solely for use
       by one or both of them. In State v. Moore, 529 N.W.2d 264 (Iowa 1995), the defendant was
       convicted of delivery of a controlled substance. The evidence showed that he bought and
       paid for heroin, which he brought home. There, he injected his wife with the drug three
       times, the first two times with her consent, and the third time against her will. Affirming the
       conviction, the court held that the defendant had “delivered” the heroin, even if he had done
       so after his wife had obtained “constructive possession” of it. Id. at 266. The court
       distinguished Swiderski as having involved two people who were equally active in the
       original purchase, having simultaneously acquired drugs for their own use. Id. In Moore, by

                                                -8-
       contrast, as in Wright, the defendant purchased the drugs by himself and later shared them
       with another. Id.
¶ 34        In Commonwealth v. Johnson, 602 N.E.2d 555 (Mass. 1992), the defendant was
       convicted of trafficking–i.e., unlawful distribution (physical transfer) of cocaine. Affirming,
       the court held that the trial court properly refused to instruct the jury that, if two or more
       people contribute to money to buy drugs but only one person carries out the purchase, he is
       guilty only of possession. Id. at 559. Swiderski did not apply, being limited to when two or
       more people simultaneously acquire possession at the outset. Id. Instead, Wright controlled.
       Id.
¶ 35        The Illinois statute under which defendant was convicted is essentially similar to the
       foreign statutes at issue in the foregoing cases. The statute centers on “unlawfully delivering
       a controlled substance to another” (720 ILCS 5/9-3.3(a) (West 2008)), with “delivering”
       being defined as “the actual, constructive or attempted transfer of possession of a controlled
       substance, with or without consideration, whether or not there is an agency relationship” (720
       ILCS 570/102(h) (West 2008); see People v. Boand, 362 Ill. App. 3d 106, 141 (2005)). There
       is little case law in Illinois applying this language, so we turn to the foregoing foreign cases
       in deciding both whether defendant was proved guilty beyond a reasonable doubt and
       whether her trial counsel was ineffective for failing to request an instruction in response to
       the jury’s question about the meaning of “delivering.”
¶ 36        The case law that we have discussed is not wholly consistent, but we can say that it
       addresses two paradigmatic situations. One is when the defendant and the co-user
       “simultaneously and jointly acquire possession of a drug for their own use, intending only
       to share it together.” (Emphasis added.) Swiderski, 548 F.2d at 450. In that situation,
       regardless of whether any legal rights of possession can be said to have accrued, the co-
       purchasers are, from the outset, in “joint possession” (in the criminal-law sense) with no
       intention of distributing the illicit substance to a third party. Id. Under Swiderski, the
       defendant is guilty not of delivery but merely of possession. We follow Swiderski (and
       Lopez) to the extent that we hold that joint and simultaneous acquisition of contraband, in
       itself, will not support a conviction of drug-induced homicide. There must be something
       more than “a copurchase by truly equal partners.” Edwards, 702 P.2d at 559 n.5.
¶ 37        The other paradigmatic situation, presented in Toppan, Wright, Moore, Johnson, and
       Carithers, arises when the defendant separately procures the drug in the absence of the co-
       user (and perhaps co-purchaser), then physically transfers possession to the co-user, with no
       intent to convey any to a third party. In that situation, all of the mentioned opinions except
       Carithers hold that the defendant is guilty of delivery and is not merely a joint possessor. We
       agree: not only are Swiderski’s language and facts limited to would-be users who “jointly and
       simultaneously acquire possession” (Swiderski, 548 F.2d at 450), but, when one person
       acquires the drug himself, then physically transfers possession to another, he has “operated
       as [a] link between the person with whom he intended to share the [drug] and the drug itself”
       (Wright, 593 F.2d at 108). In that situation, the co-users are not “truly equal partners,”
       because one has taken “a more active role in *** carrying-out [sic] the drug transaction.”
       Edwards, 702 P.2d at 559 n.5.


                                                 -9-
¶ 38       Carithers rejects the narrow reading of Swiderski, holding that even one who separately
       procures and then transfers drugs to a co-purchaser is not guilty of delivery. We find
       Carithers unsound. Aside from departing from the weight of authority, Carithers imports
       notions of property rights and legal ownership into the realm of contraband, reasoning that,
       even if one prospective user acquires the drugs on his own, the other prospective user is
       “immediately entitled to exercise joint physical dominion and control or actual physical
       possession over [sic] those drugs at all times following the completion of the sale.”
       (Emphasis added.) Carithers, 490 N.W.2d at 622.
¶ 39       Like the courts in Toppan and Long, we do not understand how anyone can become
       “entitled” to exercise dominion over something that cannot legally be possessed. An
       “entitlement” to possess contraband is a contradiction in terms. Of course, the absence of any
       legal right to possess contraband does not negate the concept of possession, including joint
       possession of contraband–in the sense that the criminal law uses these terms. And the
       absence of any legal right to possess the contraband does not render irrelevant a defendant’s
       subjective beliefs about a co-user’s rights–because even legally unfounded subjective beliefs
       may be relevant to the existence of joint possession at a given moment, and that in turn bears
       on the question of delivery.
¶ 40       We turn to the case at hand. The first thing to observe is that, given the facts that are not
       in dispute, this case does not fit neatly within either Swiderski or the Wright line of cases.
       There was evidence that defendant and Cawthon both participated actively in procuring the
       heroin. Cawthon originated the idea, and he paid for the heroin. However, defendant actually
       made the calls, located a supplier, and ordered the drug. When A.J. delivered the heroin,
       defendant did not go separately to pick it up. Instead, she and Cawthon were present together
       for the delivery. However, A.J. did not give the heroin to both of them or leave it in a
       mutually accessible area. Rather, he gave it to defendant, who put it into her pocket.
¶ 41       Most of the pertinent evidence appears to be undisputed. But, even so, we conclude that
       the resolution of the trial depended on debatable inferences going to the interrelated
       questions of “practical control” and joint possession–and thus to the ultimate issue of
       whether any physical transfer of heroin from defendant to Cawthon was a delivery. Put
       simply, we hold that the evidence allowed a reasonable jury either to convict or to acquit
       defendant.
¶ 42       Under Swiderski, that two co-purchasers jointly acquire and possess drugs for their sole
       personal use is insufficient, in itself, to convict either one of delivering the drugs to the other.
       Defendant contends that, even viewed most favorably to the State, the evidence showed no
       more than such joint possession at all pertinent times. We do not agree. Either the existence
       or the nonexistence of joint possession at a pertinent time could have been found by a
       reasonable jury. This is because the question of joint possession may turn on what inferences
       to draw about the two co-users’ intent.
¶ 43       A person possesses drugs when he knows of their presence and they are in his immediate
       and exclusive possession or control. People v. Schmalz, 194 Ill. 2d 75, 81 (2000). Although
       possession must be “exclusive,” it may simultaneously be joint. Id. at 82. “[I]f two or more
       persons share immediate and exclusive control or share the intention and power to exercise


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       control, then each has possession [citation].” (Emphasis added.) Id. We note that the
       designation of “control” as a necessary element of possession parallels the Toppan line of
       cases’ use of “practical control” as the key to distinguishing a deliverer from a mere joint
       possessor.
¶ 44       Here, a rational fact finder could conclude that Cawthon’s second bag of heroin caused
       his death and that, immediately before removing the bag from her pocket, defendant alone
       possessed it. A rational jury could–which is not to say need–infer that, immediately before
       the transfer, defendant had the “practical control” of the heroin and that she, but not
       Cawthon, intended to exercise control over what happened to it. At least some of defendant’s
       own words to the detectives support this inference. Most notably, she told them, “I had the
       bags in my pocket, so I wasn’t going to give it to him.” A permissible further inference, that
       Cawthon recognized defendant’s subjective right to control whether and when he received
       his second bag, would enable the jury to conclude that, even had there been joint possession
       at some prior point, that was no longer the situation. Based on this reading of the parties’
       intentions, a rational jury could find defendant guilty of delivering the fatal heroin and not
       merely possessing it jointly with Cawthon.
¶ 45       Of course, we recognize that, under the standards that we adopt, a rational jury might
       resolve the question of delivery versus joint possession in defendant’s favor. Surely, much
       of what defendant told the detectives could be read this way, e.g., “it was his money, he paid
       for it.” The jury had to weigh both the credibility and the implications of defendant’s varied
       and perhaps inconsistent remarks to the detectives. In short, this was a close and difficult
       case on the facts. Further, we recognize that the jury, with no guidance on the meaning of
       “delivery” in the drug-induced-homicide statute, might well have given that term a broader
       meaning than it deserves, to the prejudice of defendant. Therefore, we agree with defendant
       that her trial counsel was ineffective for failing to request that the trial court answer the jury’s
       question and, more specifically, for failing to tender an instruction that would have limited
       the definition of “delivery.”
¶ 46       We do not fault trial counsel for failing to anticipate our holding. Also we acknowledge
       that, in closing argument, he invoked the delivery-is-not-joint-possession theory indirectly,
       emphasizing that both defendant and Cawthon had actively pursued the purchase of heroin
       and contending that both had been mere “consumers of heroin” who were “at the bottom of
       the food chain in the heroin distribution cycle.” Nonetheless, we conclude that counsel’s
       failure to submit a proposed supplemental instruction on the meaning of “delivery” was
       objectively unreasonable and, given the closeness of the evidence, prejudiced defendant.
¶ 47       To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate
       that (1) counsel’s performance was objectively unreasonable; and (2) it is reasonably
       probable that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); People v.
       Evans, 369 Ill. App. 3d 366, 383 (2006). Here, during deliberations, the jury asked the trial
       court whether it could reasonably interpret the term “delivery” to mean “give.” The trial
       judge decided not to answer the question, and defendant’s counsel acquiesced in this
       decision. Both the judge and defendant’s counsel erred; the question should have been
       answered directly, and the lack of an answer may well have resulted in a conviction based

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       on legally insufficient factual findings.
¶ 48        “[T]he general rule is that the trial court has a duty to provide instruction to the jury
       where it has posed an explicit question or requested clarification on a point of law arising
       from facts about which there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-
       29 (1994). “This is true even though the jury was properly instructed originally.” Id. at 229.
¶ 49        Reversible error can occur when the jury asks the trial court to define a key term used in
       the instructions but the court refuses the request. Thus, in People v. Brouder, 168 Ill. App.
       3d 938 (1988), the defendant was charged with resisting arrest, which required the State to
       prove that he had “ ‘knowingly resisted’ ” arrest. Id. at 941. During deliberations, the jury
       requested a clarification of the term “ ‘knowingly.’ ” Id. at 946. The defendant’s attorney
       tendered a proposed definition, but the trial judge reserved his ruling on the request. Before
       the judge could respond to the request, the jury convicted the defendant. Id. at 947. On
       appeal, the court held that the trial court erred in refusing to clarify the statutory term,
       because the jury’s confusion impaired its ability to apply the law properly to the facts. Id. at
       948; accord People v. Lowry, 354 Ill. App. 3d 760, 765-67 (2004) (trial court erred reversibly
       in refusing jury’s request for definition of “knowingly” as used in aggravated battery charge,
       and defendant’s counsel was ineffective for failing to offer definition).
¶ 50        In People v. Kamide, 254 Ill. App. 3d 67 (1993), the defendant was charged with driving
       with a blood-alcohol concentration of 0.10 or more. The jury asked the court whether the
       term “alcohol” included the type that had been present in the drug that the defendant inhaled
       to treat his asthma. The trial court declined to answer the question, and the defendant was
       convicted. On appeal, we held that the refusal was reversible error: the jury had expressed
       confusion on a question of law, and the trial court could have cleared up the confusion by
       instructing the jury that the defendant’s asthma medicine was not “alcohol” within the
       meaning of the statute. As it was, the jury might have convicted the defendant without
       actually having found facts sufficient to establish his guilt under the statute. Id. at 71-72; see
       also, e.g., People v. Landwer, 279 Ill. App. 3d 306, 316 (1996) (where defendant relied on
       defense of entrapment, trial court reversibly erred in refusing to address jury’s confusion
       about meaning of term “ ‘originated’ ” in entrapment instruction, as it created danger that
       jury would reject defense because it misunderstood the law); People v. Crockett, 314 Ill.
       App. 3d 389, 404 (2000) (where defendant’s defense was that he did not participate in
       charged offenses but was mere spectator, trial court was obligated to answer jury’s request
       to define “ ‘abet,’ ” used in instructions, as refusal to clarify term risked allowing conviction
       based on innocent conduct).
¶ 51        In this case, the trial court’s refusal to clarify the jury’s confusion over the meaning of
       “delivery”–obviously the linchpin in this case–created a serious danger that the jury would
       (and did) convict defendant based on facts that were legally insufficient to establish delivery
       under the drug-induced-homicide statute. Of course, as defendant concedes, it is difficult to
       hold that the trial court reversibly erred when defendant acquiesced in the mistake. But we
       agree with her that counsel’s failure was both objectively unreasonable and prejudicial.
¶ 52        Indeed, the situation here is strikingly similar to that in Swiderski. There, the jury asked
       the trial court, in essence, whether a defendant could “distribute” the cocaine merely by


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       giving it to his or her codefendant for the other’s personal use. Swiderski, 548 F.2d at 447-48.
       The court held that the trial court’s answer–yes–was reversible error, because mere giving
       was not distribution. Id. at 452.
¶ 53       Here, similarly, the jury asked whether “delivery” could mean “give.” Thus, not only was
       the jury confused about a question of law, but it was at least entertaining the belief that
       defendant could be found guilty for doing no more than handing heroin to Cawthon (which,
       of course, it is uncontroverted that she did). This danger might have been heightened by the
       State’s closing argument, in which it contended that defendant was guilty because she “gave
       Rustin Cawthon the heroin” and because the heroin “went from [defendant’s] hand into
       Rustin Cawthon’s bloodstream by injecting it with the rig that [defendant] gave to him.” In
       any event, given the extreme closeness of this case, the danger that the jury might have
       believed that it could find that defendant “delivered” the fatal heroin to Cawthon merely by
       handing it to him denied defendant a fair trial.
¶ 54       We agree with defendant that her attorney should have requested that the trial court
       answer the jury’s question. Further, we agree with defendant that, to avert the danger of a
       conviction based on an error of law, her attorney should have tendered, and the court should
       have given, two pattern instructions that would have clarified the term “deliver.” See Illinois
       Pattern Jury Instructions, Criminal, No. 17.05A(1), (2) (4th ed. 2000) (defining “deliver” as
       “to transfer possession or to attempt to transfer possession” and saying that “possession”
       includes constructive possession); Illinois Pattern Jury Instructions, Criminal, No. 4.16 (4th
       ed. 2000) (defining “possession”). We note that the trial court gave only the third part of the
       instruction defining “deliver,” stating that a delivery does not require money or other
       consideration, but it did not give the first two parts of the instruction. Defendant’s attorney
       should have requested, and the court should have given, the entire instruction.
¶ 55       Because defendant’s trial counsel was ineffective, defendant is entitled to a new trial.
¶ 56       For the foregoing reasons, the judgment of the circuit court of McHenry County is
       reversed, and the cause is remanded for a new trial.

¶ 57      Reversed and remanded.

¶ 58       JUSTICE McLAREN, specially concurring.
¶ 59       I specially concur because I disagree with one aspect of the majority analysis. The
       majority relates: “Like the courts in Toppan and Long, we do not understand how anyone can
       become ‘entitled’ to exercise dominion over something that cannot legally be possessed. An
       ‘entitlement’ to possess contraband is a contradiction in terms.” Supra ¶ 39.
¶ 60       I believe that the concept of dominion and control relates to the understanding between
       the parties that they are “entitled” to exercise dominion and control. Whether the
       understanding is based upon a joint venture, the contemplation or threat of force, or some
       other abstruse concept, it is not required that legally consistent concepts of dominion and
       control be the sine qua non. See People v. Drake, 288 Ill. App. 3d 963, 969 (1997) (“Where
       two or more people share immediate and exclusive control or share the intention and power


                                                -13-
       to exercise control, there arises a situation of joint possession. [Citation.] Even where there
       is no physical possession, constructive possession may exist where there is an intent and
       capacity to maintain control and dominion over the contraband, and this may be proved by
       showing that the defendant controlled the premises where it was found.”).
¶ 61       Were I to accept the majority’s perception that “entitlement” to possess contraband is a
       contradiction in terms, it would seem to me that the State would be hard-pressed to ever
       convict a person of simultaneously possessing contraband with another person, and the
       concept of “joint possession” would prove to be an oxymoron.




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