                                                                              FILED
                                  2016 IL App (4th) 140995                  October 25, 2016
                                                                              Carla Bender
                                        NO. 4-14-0995                     4th District Appellate
                                                                                Court, IL
                                IN THE APPELLATE COURT

                                        OF ILLINOIS

                                     FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                     )      Appeal from
            Plaintiff-Appellee,                           )      Circuit Court of
            v.                                            )      Adams County
 TODD L. LAWS,                                            )      No. 14CF232
            Defendant-Appellant.                          )
                                                          )      Honorable
                                                          )      Scott H. Walden,
                                                          )      Judge Presiding.


       PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Turner and Appleton concurred in the judgment and opinion.

                                          OPINION

¶1        Defendant, Todd L. Laws, had a 2010 conviction for unlawful possession of

methamphetamine. He now appeals his November 2014 conviction for unlawful possession of

methamphetamine precursors in violation of section 120(a) of the Methamphetamine Control and

Community Protection Act (Act) (720 ILCS 646/120(a) (West 2012)). On appeal, defendant

argues the State failed to prove he knowingly purchased, owned, or otherwise possessed a

product he knew to contain a methamphetamine precursor on November 18, 2013. The State

argues it met its burden of proof because the statute requires the State to prove only knowledge

of possession and not knowledge the substance contains a methamphetamine precursor. We

affirm.
¶2                                   I. BACKGROUND

¶3            During a stipulated bench trial on November 13, 2014, defendant was found

guilty of one count of unlawful possession of methamphetamine precursors in violation of

section 120(a) of the Act (Id.), a Class 4 felony. Pursuant to a negotiated agreement between

defendant and the State, the court sentenced defendant to two years in prison and one year of

mandatory supervised release.

¶4            Section 120(a) of the Act reads:

              “Whenever any person pleads guilty to, is found guilty of, or is

              placed on supervision for an offense under this Act, in addition to

              any other penalty imposed by the court, no such person shall

              thereafter knowingly purchase, receive, own, or otherwise possess

              any substance or product containing a methamphetamine precursor

              as defined in Section 10 of this Act, without the methamphetamine

              precursor first being prescribed for the use of that person in the

              manner provided for the prescription of Schedule II controlled

              substances under Article III of the Illinois Controlled Substances

              Act.” Id.

A person convicted under section 120(a) is guilty of a Class 4 felony. 720 ILCS 646/120(b)

(West 2012). Pseudoephedrine is a methamphetamine precursor as defined by the Act. 720 ILCS

646/10 (West 2012).

¶5            Prior to trial, defendant challenged the constitutionality of section 120(a) of the

Act (720 ILCS 646/120(a) (West 2012)) in a motion to dismiss, arguing the statute violates the

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due process clauses of both the Illinois Constitution and the United States Constitution.

Defendant argued because the statute does not require “a culpable mental state beyond mere

knowledge,” it creates the potential for subjecting wholly innocent conduct to criminal

punishment. In sum, defendant made an overbreadth argument. In support, defendant cited

People v. Madrigal, 241 Ill. 2d 463, 948 N.E.2d 591 (2011), which held unconstitutional a

statute relating to identity theft because the statute did not contain a culpable mental state beyond

mere knowledge, resulting in the potential for criminal punishment of wholly innocent conduct.

Id. at 479, 948 N.E.2d at 600. The Madrigal court noted several cases striking down statutes as

unconstitutional for the same reason. Id. at 467-68, 948 N.E.2d at 594 (citing People v.

Carpenter, 228 Ill. 2d 250, 888 N.E.2d 105 (2008); People v. Wright, 194 Ill. 2d 1, 740 N.E.2d

755 (2000); In re K.C., 186 Ill. 2d 542, 714 N.E.2d 491 (1999); People v. Zaremba, 158 Ill. 2d

36, 630 N.E.2d 797 (1994); People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676 (1985)). In these

cases, the courts determined there was no rational relationship between the statute and the

legislative purpose because the risk of subjecting wholly innocent conduct to criminal

punishment attenuated the relationship, rendering the statute overbroad and therefore

unconstitutional. E.g., Madrigal, 241 Ill. 2d at 467-68, 474, 948 N.E.2d at 594, 598.

¶6             The State countered defendant’s constitutional argument by analogizing section

120(a) of the Act to rules preventing felons from possessing a firearm or ammunition (720 ILCS

5/24-1.1 (West 2014)) or from voting while imprisoned (Ill. Const. 1970, art. III, § 2). The State

argued section 120(a) of the Act, like the statute preventing felons from possessing a firearm or

ammunition, merely limits a specific privilege to a limited class of citizens who have

demonstrated a proclivity to abuse the privilege. The State also noted the prescription exception

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contained in section 120(a) is a further limitation on the statute’s applicability, which weighs in

favor of rationality. The State argued the relationship between the statute and the legislative

objective was not attenuated in this case because these limitations prevent punishment of wholly

innocent conduct. The court rejected defendant’s constitutional argument and denied defendant’s

motion to dismiss, and the case proceeded to a stipulated bench trial.

¶7             The stipulated facts presented at the trial follow. The National Precursor Log

Exchange (NPLEx) indicated that, on November 18, 2013, defendant purchased 12-hour

Sudafed, a product containing pseudoephedrine, at a drugstore in Adams County. Surveillance

footage showed a man purchasing the Sudafed, and Officer James Brown of the West Central

Illinois Task Force would have identified defendant as the man in the surveillance footage. An

employee of the drugstore would have testified if a person had a doctor’s prescription to

purchase a product containing pseudoephedrine, or any other methamphetamine precursor, the

purchase would not appear in the NPLEx logs, which indicates defendant did not have a

prescription to purchase Sudafed on November 18, 2013. Finally, the State would have

introduced a certified copy of defendant’s October 2010 conviction for unlawful possession of

methamphetamine in violation of section 60(a) of the Act (720 ILCS 646/60(a) (West 2008)).

Based upon this evidence, the trial court found defendant guilty of unlawful possession of a

methamphetamine precursor in violation of section 120(a) of the Act (720 ILCS 646/120(a)

(West 2012)) and concurred in the negotiated sentence of two years in prison and one year of

mandatory supervised release. This appeal followed.




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¶8                                    II. ANALYSIS

¶9             On appeal, defendant expressly states in his reply brief he does not challenge the

constitutionality of section 120(a), but argues the statute must be read to require “criminal

knowledge” because interpreting the statute to require mere knowledge could subject wholly

innocent conduct to criminal punishment. Defendant also argues the proper construction of the

statute requires both knowledge of possession and knowledge the substance contains a

methamphetamine precursor. Defendant argues this dual-pronged knowledge requirement would

satisfy a showing of the criminal knowledge he asserts is required by the statute. Defendant

claims, because the stipulated facts did not establish he had a criminal purpose for the Sudafed or

actual knowledge Sudafed contained a methamphetamine precursor, the State did not meet its

burden to convict under the Act. Finally, defendant argues our court system disfavors

interpreting statutes to impose absolute liability absent a clear intention by the legislature, which

he asserts supports his argument the Act requires criminal knowledge rather than mere

knowledge. According to defendant, interpreting the statute to require mere knowledge as

opposed to criminal knowledge would result in an absolute liability statute because it would

create the potential for criminal punishment of wholly innocent conduct.

¶ 10           The State argues the court should enforce the statute as written when the

legislature clearly provides a mental state. The statute here expressly prohibits “knowingly

purchas[ing], receive[ing], own[ing], or otherwise possess[ing]” a methamphetamine precursor.

(Emphasis added.) 720 ILCS 646/120(a) (West 2012). Therefore, the State argues mere

knowledge, as opposed to criminal knowledge, is the requisite mental state for this crime. In

response to the statutory construction argument, the State notes an offense typically consists of

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an act committed with a culpable mental state, and the act here is possession, which must be

done knowingly. Accordingly, the State’s construction of the statute requires application of the

mens rea element only to the possessory element of the crime. Because knowledge of possession

was sufficient to convict, the State argues it met its burden. The State agrees section 120(a)

should not be read to impose absolute liability because the statute expressly requires a knowing

mental state. Finally, the State maintains section 120(a) of the Act is constitutional because the

statute is a rational means of promoting the legislative objective of reducing methamphetamine

manufacture and abuse. The limited class of persons regulated by this statute (i.e., those

previously convicted of methamphetamine crimes), coupled with the prescription exception,

sufficiently limits the applicability of the statute so as to prevent criminal punishment of wholly

innocent conduct. These limitations, the State argues, maintain the statute’s rational relationship

to the legislative purpose and therefore its constitutionality.

¶ 11           Defendant maintains we must read into the statute criminal knowledge as opposed

to applying the mental state expressly provided by the legislature. Defendant asserts we need not

reach a constitutional analysis because the statute can be construed so as to preserve its

constitutionality by requiring criminal knowledge, which would, in turn, require both knowledge

of possession and knowledge the substance contains a methamphetamine precursor. Defendant

appears to muddle his arguments. Reading the requirement of criminal knowledge into the statute

is not the same as construing the express language of the statute to require the dual-pronged

knowledge for which he advocates. Criminal knowledge is a mental state requiring both

knowledge and criminal or devious intent. People v. Tolliver, 147 Ill. 2d 397, 400-01, 589

N.E.2d 527, 529 (1992). As will be discussed more fully infra, the instances where criminal

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knowledge has been read into a statute are those where the court is preserving the

constitutionality of the statute in question. Thus, despite defendant’s contentions to the contrary,

we conclude he has presented two separate arguments: (1) a statutory construction argument and

(2) an argument to read criminal knowledge into section 120(a) of the Act, which is a

constitutional argument.

¶ 12                               A. Standard of Review

¶ 13           Questions of law, statutory construction, and constitutionality are reviewed

de novo. People v. Molnar, 222 Ill. 2d 495, 508, 857 N.E.2d 209, 217 (2006). Statutes are

presumed constitutional and should be interpreted so as to uphold constitutionality where

possible. Id. Additionally, the Illinois Supreme Court has repeatedly held courts should attempt

to resolve cases on nonconstitutional grounds before considering constitutionality. In re E.H.,

224 Ill. 2d 172, 178, 863 N.E.2d 231, 234 (2006). Accordingly, we will consider defendant’s

statutory construction argument prior to proceeding to his argument asserting section 120(a)

requires criminal knowledge as opposed to mere knowledge.

¶ 14                            B. Statutory Construction

¶ 15           We begin our analysis by considering whether section 120(a) of the Act requires

knowledge of both possession and the presence of a methamphetamine precursor or merely

knowledge of possession.

¶ 16                       1. Construction of Section 120(a)

¶ 17           Our supreme court has explained:

                       “The cardinal rule of statutory construction is to ascertain

               and give effect to the true intent of the legislature. [Citation.] The

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              best evidence of legislative intent is the language used in the

              statute itself, which must be given its plain and ordinary meaning.

              [Citations.] The statute should be evaluated as a whole, with each

              provision construed in connection with every other section.

              [Citation.] If legislative intent can be ascertained from the statute’s

              plain language, that intent must prevail without resort to other

              interpretive aids. [Citation.]” Paris v. Feder, 179 Ill. 2d 173, 177,

              688 N.E.2d 137, 139 (1997).

¶ 18          The purpose of the Act “is to reduce the damage that the manufacture,

distribution, and use of methamphetamine are inflicting on children, families, communities,

businesses, the economy, and the environment in Illinois.” 720 ILCS 646/5 (West 2012). The

statutory language of section 120(a) prohibits individuals previously convicted under the Act

from “knowingly purchas[ing], receiv[ing], own[ing], or otherwise possess[ing] any substance or

product containing a methamphetamine precursor.” 720 ILCS 646/120(a) (West 2012). The

legislature undoubtedly intended to regulate the possession of methamphetamine precursors by

individuals who have a prior conviction of a methamphetamine crime.

¶ 19          Turning to the plain meaning of the relevant word chosen by our legislature, our

supreme court has stated “knowledge,” as a criminal mens rea, means conscious awareness of

facts making a person’s conduct unlawful. People v. Gean, 143 Ill. 2d 281, 288, 573 N.E.2d 818,

822 (1991). We note the meaning assigned does not require awareness one’s conduct is

unlawful; the meaning requires only awareness of the facts.

¶ 20          Defendant argues the proper construction of the statute requires the State to show

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both knowledge of possession and knowledge the substance contains a methamphetamine

precursor. To support this argument, defendant cites Tolliver and People v. DePalma, 256 Ill.

App. 3d 206, 627 N.E.2d 1236 (1994), which discuss the constitutionality of the statutes in

question, not the construction of the plain language contained in those statutes. Defendant also

asserts that failure to require knowledge that the substance contains a methamphetamine

precursor would render the statute an absolute liability offense because it would create the

potential for criminal punishment of wholly innocent conduct. However, defendant’s assertion

regarding the potential punishment of wholly innocent conduct is a constitutional argument, not a

statutory construction argument. The potential punishment of wholly innocent conduct does not

render a statute an absolute liability crime; it would render the statute overbroad and therefore

unconstitutional. “An absolute liability offense is one which does not require a culpable mental

state as an element.” People v. Studley, 259 Ill. App. 3d 556, 559, 631 N.E.2d 839, 841 (1994).

Section 120(a) undoubtedly requires knowledge, a mental state, as an element; therefore, this

argument is without merit.

¶ 21           The State argues the proper construction of the statute only requires knowledge of

possession. In support, the State cites People v. Ivy, 133 Ill. App. 3d 647, 479 N.E.2d 399 (1985);

People v. Stanley, 397 Ill. App. 3d 598, 921 N.E.2d 445 (2009); and People v. Wright, 140 Ill.

App. 3d 576, 488 N.E.2d 1344 (1986). In Ivy, the court considered whether the State was

required to prove the defendant had knowledge of a weapon’s illicit nature or character to

convict the defendant of unlawful possession of a “sawed-off” shotgun (Ill. Rev. Stat. 1981, ch.

38, ¶ 24-1(a)(7)). The court stated:



                                               -9-
                      “We are aware of no other case involving the issue of

               whether the knowledge element *** may be satisfied by showing

               knowledge of the presence of a weapon which later proves to be

               illegal or whether it is necessary to show that the defendant had

               knowledge of the status and character of the illegal weapon. As

               pointed out by the State, it is well settled that one is presumed to

               know the law and that ignorance of the law is no excuse.

               [Citations.] *** Since it is ‘knowing possession’ of an illegal

               object that is proscribed by statute, the State was not required to

               prove that the defendant knew her possession was illegal but only

               that she knew she possessed the object in question.” Ivy, 133 Ill.

               App. 3d at 652-53, 479 N.E.2d at 403.

Stanley upheld Ivy, concluding the mens rea element only applied to the possessory element of

unlawful possession of a “sawed-off” shotgun and not to whether the defendant actually knew

the weapon was defaced or altered. Stanley, 397 Ill. App. 3d at 607-09, 921 N.E.2d at 452-54;

see also 720 ILCS 5/24-5(b) (West 2006) (the statute interpreted by the Stanley court). Similarly,

Wright considered a statute prohibiting “knowingly *** possess[ing] *** any weapon made from

a shotgun *** if such weapon *** has *** a barrel length of less than 18 inches.” Ill. Rev. Stat.

1983, ch. 38, ¶ 24-1(a)(7). The Wright court determined the statute did not require the defendant

to actually know the barrel of such a weapon was less than 18 inches; rather, the statute only

required the defendant to know he or she possessed the weapon in question. Wright, 140 Ill. App.

3d at 582, 488 N.E.2d at 1348. In sum, these courts held the mens rea element applies only to the

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possessory element and not to the illegal nature or character of the contraband.

¶ 22           We agree with these cases, which are consistent with interpretations of knowing

possession throughout our jurisprudence as well as the definition of “knowledge” supplied by

our supreme court in Gean. For example, with respect to unlawful possession of a controlled

substance, the State bears the burden of proving the defendant knew he or she possessed and had

control over the contraband; the State need not prove the defendant had knowledge of the

substance’s illegal nature. See People v. Givens, 237 Ill. 2d 311, 335, 934 N.E.2d 470, 484

(2010). With respect to unlawful possession of a firearm by a felon, the State bears the burden of

proving the defendant knew he or she possessed a firearm and he or she had a prior felony

conviction; the State need not prove the defendant had knowledge he or she was prohibited from

possessing the firearm because of the prior felony conviction. See People v. Hester, 271 Ill. App.

3d 954, 956, 649 N.E.2d 1351, 1354 (1995). Requiring the State to prove the defendant knew the

illegal nature or character of his or her act is simply requiring the defendant to know the law,

which is knowledge we impute to all defendants regardless of the crime in question. We

determine section 120(a) of the Act (720 ILCS 646/120(a) (West 2012)) requires the State to

show the defendant knew he or she possessed a substance containing a methamphetamine

precursor.

¶ 23           An individual who purchases medication containing a methamphetamine

precursor is on notice the medication contains the precursor because the ingredients are listed on

the box or bottle containing the medication. The argument an individual is unaware a particular

substance is a methamphetamine precursor is a mistake of law claim, which is no defense. Even

if we interpreted the statute to require knowledge a methamphetamine precursor is contained in

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the substance possessed, defendant’s argument he was unaware Sudafed contained

pseudoephedrine or unaware pseudoephedrine was a methamphetamine precursor would

necessarily fail.

¶ 24                 2. Application of Section 120(a) to Defendant’s Case

¶ 25            We determine the stipulated evidence was sufficient to convict defendant for one

count of unlawful possession of methamphetamine precursors in violation of section 120(a) of

the Act (720 ILCS 646/120(a) (West 2012)). When reviewing a criminal case on appeal, the

relevant question is whether a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt as to each element of the crime in question. People v. Davison, 233

Ill. 2d 30, 43, 906 N.E.2d 545, 553 (2009). Section 120(a) required the State to have proved

defendant was consciously aware he possessed a substance containing a methamphetamine

precursor on November 18, 2013. See 720 ILCS 646/120(a) (West 2012). Additionally, the State

needed to have shown defendant had a prior conviction under the Act. Id.

¶ 26            The stipulated facts at trial establish, on November 18, 2013, defendant purchased

12-hour Sudafed, a product containing the methamphetamine precursor pseudoephedrine. By

physically purchasing the Sudafed and taking it with him from the drugstore, we can infer

defendant was consciously aware he was in possession of the Sudafed. Additionally, the

stipulated facts established defendant had a prior conviction for methamphetamine possession in

violation of section 60(a) of the Act (720 ILCS 646/60(a) (West 2008)). A reasonable trier of

fact could have found defendant guilty beyond a reasonable doubt for each element of unlawful

possession of a methamphetamine precursor as defined in section 120(a) of the Act (720 ILCS

646/120(a) (West 2012)).

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¶ 27           Defendant argues the State failed to prove him guilty beyond a reasonable doubt

because the State did not present evidence showing he knew Sudafed contained a

methamphetamine precursor. However, notwithstanding the fact defendant should have known

Sudafed contained pseudoephedrine, his argument fails because we have decided knowledge the

substance possessed contains a methamphetamine precursor is not required by section 120(a).

Accordingly, we find the State met its burden and decline to reverse the trial court’s judgment.

¶ 28                              C. Criminal Knowledge

¶ 29           Having first considered defendant’s nonconstitutional arguments and determining

those arguments do not afford defendant the relief he seeks, we now turn to defendant’s

argument asserting criminal knowledge must be read into section 120(a) of the Act.

¶ 30           As previously stated, criminal knowledge has been read into a statute only where

the court is preserving the constitutionality of the statute in question. Indeed, the two cases

defendant cites in support of this argument present the question of constitutionality. See

DePalma, 256 Ill. App. 3d at 207, 627 N.E.2d at 1237 (challenging the constitutionality of

section 4-103(a)(4) of the Illinois Vehicle Code (625 ILCS 5/4-103(a)(4) (West 1992)));

Tolliver, 147 Ill. 2d at 399, 589 N.E.2d at 528 (challenging the constitutionality of section

104(a)(2) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, ¶ 4-104(a)(2))).

¶ 31           In Tolliver, the statute in question contained no express mental state, but the

statute in DePalma did contain a knowing mental state. See Ill. Rev. Stat. 1989, ch. 95½, ¶ 4-

104(a)(2) (Tolliver statute); 625 ILCS 5/4-103(a)(4) (West 1992) (DePalma statute). In these

cases, the courts concluded the requirement of mere knowledge was not sufficiently rationally

related to the legislative purpose at hand, thereby violating due process. E.g., Tolliver, 147 Ill. 2d

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at 399-403, 589 N.E.2d 528-30. The courts reached this conclusion because mere knowledge

absent a criminal purpose created the potential for criminal punishment of wholly innocent

conduct (i.e., conduct unrelated to the legislative purpose of the statute and devoid of criminal or

devious intent). E.g., id. at 401-03, 589 N.E.2d at 529-30; see also DePalma, 256 Ill. App. 3d at

211, 214, 627 N.E.2d at 1239, 1241 (defining wholly innocent conduct). This potential

attenuated the relationship between the statute and the legislative intent so as to render the

relationship irrational and the statute overbroad. Tolliver, 147 Ill. 2d at 401-03, 589 N.E.2d at

529-30; DePalma, 256 Ill. App. 3d at 214, 627 N.E.2d at 1241. Therefore, a showing of criminal

knowledge was necessary to preserve the constitutionality of the statutes in question, and the

courts read criminal knowledge into the statutes to that effect. Tolliver, 147 Ill. 2d at 403, 589

N.E.2d at 530; DePalma, 256 Ill. App. 3d at 214, 627 N.E.2d at 1241.

¶ 32           Pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016), points not

argued in appellant’s brief are forfeited, as are claims not fully analyzed. See Bartlow v.

Costigan, 2014 IL 115152, ¶ 52, 13 N.E.3d 1216. Additionally, voluntary express relinquishment

of an available right or argument constitutes waiver. Buenz v. Frontline Transportation Co., 227

Ill. 2d 302, 320 n.2, 882 N.E.2d 525, 536 n.2 (2008). While defendant has provided law and

analysis on the issue of overbreadth and constitutionality, an issue properly preserved for appeal

at the trial, defendant expressly maintains he is not challenging the constitutionality of the statute

and has waived the issue.

¶ 33           Defendant asserts his argument that to read criminal knowledge into the statute

does not require a constitutional analysis. However, defendant’s argument rests on the premise

criminal knowledge is required to prevent criminal punishment of wholly innocent conduct—the

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exact constitutional argument outlined in Tolliver and DePalma. As discussed, the courts in

Tolliver and DePalma only reached the conclusion criminal knowledge was required after first

finding the statute unconstitutional as written. Because defendant has waived the issue of

constitutionality, we will not conduct the analysis necessary to consider whether the conclusion

he desires is warranted.

¶ 34           Nonetheless, defendant’s reliance on Tolliver and DePalma is misplaced. Rather,

this case would be controlled by Carpenter, 228 Ill. 2d 250, 888 N.E.2d 105, and Wright, 194 Ill.

2d 1, 740 N.E.2d 755. According to Carpenter and Wright, where the express language of a

statute provides a mental state, the court may not read into the statute a different or additional

culpable mental state. Carpenter, 228 Ill. 2d at 270-71, 888 N.E.2d at 117-18; Wright, 194 Ill. 2d

at 29-30, 740 N.E.2d at 769. The Wright court specifically distinguished Tolliver by stating: “In

Tolliver, we were able to imply the mental state of knowledge plus criminal purpose as an

element of section 4-104(a)(2) because that provision contained no mental state.” Wright, 194 Ill.

2d at 29, 740 N.E.2d at 769. The statute here expressly requires knowledge, which is a mental

state, as an element. Even if defendant had not waived the issue, we could not have read criminal

knowledge into section 120(a) regardless of whether we determined the statute was constitutional

as written. We also note our supreme court’s decisions in Wright and Carpenter call into doubt

the validity of DePalma because the DePalma court read criminal knowledge into that statute

despite the statute’s express inclusion of knowledge as the requisite mental state.

¶ 35                                 III. CONCLUSION

¶ 36           For the reasons stated, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $50 statutory assessment against defendant as costs of this

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appeal. 55 ILCS 5/4-2002 (West 2014).

¶ 37         Affirmed.




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