                       Illinois Official Reports

                               Appellate Court



                   People v. Bush, 2015 IL App (5th) 130224



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           NATHAN BUSH, Defendant-Appellant.



District & No.    Fifth District
                  Docket No. 5-13-0224



Filed             July 28, 2015



Decision Under    Appeal from the Circuit Court of St. Clair County, No. 12-CF-1639;
Review            the Hon. Jan V. Fiss, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Ellen J. Curry, and Robert S. Burke, all of State
Appeal            Appellate Defender’s Office, of Mt. Vernon, for appellant.

                  Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino and
                  Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s
                  Office, of counsel), for the People.



Panel             JUSTICE GOLDENHERSH delivered the judgment of the court, with
                  opinion.
                  Justices Stewart and Moore concurred in the judgment and opinion.
                                              OPINION

¶1       After a jury trial in the circuit court of St. Clair County, defendant, Nathan Bush, was
     convicted of possession of methamphetamine precursor (720 ILCS 646/20(a)(1) (West 2012))
     and possession of methamphetamine-manufacturing materials (720 ILCS 646/30(a) (West
     2012)) and was sentenced to five years in the Department of Corrections and two years of
     mandatory supervised release on each count with the sentences to run concurrently. The issue
     raised in this appeal is whether defendant committed only one act of possession for which there
     should only be one conviction. We affirm.

¶2                                             FACTS
¶3       Only a brief statement of facts is necessary for an understanding of this case. Defendant
     was arrested after being found in possession of pseudoephedrine, lithium batteries, “Heet”
     (isopropyl alcohol), and “cold packs.” The State charged defendant with two separate counts:
     (1) unlawful possession of methamphetamine precursor, and (2) unlawful possession of
     methamphetamine-manufacturing materials. A photograph of the items found in defendant’s
     possession was submitted into evidence. After hearing all the evidence, the jury found
     defendant guilty on both counts. Without objection, the trial court sentenced defendant to five
     years’ incarceration and two years’ mandatory supervised release on each count with the
     sentences to run concurrently. Defendant appeals.

¶4                                           ANALYSIS
¶5       The issue raised in this direct appeal is whether defendant committed only one act of
     possession for which there should only be one conviction. Defendant argues he committed
     only one act of possession and, therefore, the trial court violated the “one-act, one-crime” rule
     established in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). Defendant insists one
     conviction and sentence must be vacated. We disagree.
¶6       We point out that defendant waived the issue by failing to raise it at the sentencing hearing.
     People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). However, because the issue affects
     defendant’s substantial rights, we will address it under the plain error doctrine. People v.
     Smith, 183 Ill. 2d 425, 430, 701 N.E.2d 1097, 1099 (1998). Our supreme court has determined
     that a violation of the one-act, one-crime doctrine challenges the integrity of the judicial
     process and implicates the plain error analysis. In re Samantha V., 234 Ill. 2d 359, 370, 917
     N.E.2d 487, 495 (2009). One-act, one-crime challenges are subject to de novo review. People
     v. Artis, 232 Ill. 2d 156, 161, 902 N.E.2d 677, 681 (2009).
¶7       Under one-act, one-crime principles, a defendant cannot be convicted of multiple offenses
     “carved from the same physical act.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844. A King
     analysis requires two steps: (1) whether the defendant committed multiple acts, and (2) if so,
     whether any of the charges are lesser-included offenses. People v. Rodriguez, 169 Ill. 2d 183,
     186, 661 N.E.2d 305, 306 (1996). Where two offenses share an act in common, multiple
     convictions are permissible where the defendant commits a second overt manifestation which
     supports a second offense. See Rodriguez, 169 Ill. 2d at 188-89, 661 N.E.2d at 307-08.
¶8       In Rodriguez, the defendant was charged with aggravated sexual assault based upon sexual
     penetration while displaying or threatening the victim with a gun. He was also charged with


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       home invasion predicated on unlawfully entering the victim’s home and threatening her while
       armed with a gun. Rodriguez, 169 Ill. 2d at 190, 661 N.E.2d at 308. The Rodriguez court held
       the two convictions were based on separate acts, noting that while both convictions shared the
       act of threatening the victim with a gun, the defendant’s entering of the victim’s bedroom was
       an overt manifestation that supported the home invasion charge. Rodriguez, 169 Ill. 2d at
       189-90, 661 N.E.2d at 308.
¶9         In the instant case, defendant was charged under the Methamphetamine Control and
       Community Protection Act (Act) (720 ILCS 646/1 et seq. (West 2012)). Section 5 of the Act
       sets forth the purpose of the Act as follows:
                    “§ 5. Purpose. The purpose of this 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. 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 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 2012).
       Defendant was charged with two separate offenses under the Act.
¶ 10       Count I charged defendant with a violation of section 20(a)(1) of the Act, which provides:
                    “§ 20. Methamphetamine precursor.
                    (a) Methamphetamine precursor or substance containing any methamphetamine
               precursor in standard dosage form.
                        (1) It is unlawful to knowingly possess, procure, transport, store, or deliver any
                    methamphetamine precursor or substance containing any methamphetamine
                    precursor in standard dosage form with the intent that it be used to manufacture
                    methamphetamine or a substance containing methamphetamine.” 720 ILCS
                    646/20(a)(1) (West 2012).
       Count II charged defendant with a violation of section 30(a) of the Act, which provides:
                    “§ 30. Methamphetamine manufacturing material.
                    (a) It is unlawful to knowingly engage in the possession, procurement,
               transportation, storage, or delivery of any methamphetamine manufacturing material,
               other than a methamphetamine precursor, substance containing a methamphetamine
               precursor, or anhydrous ammonia, with the intent that it be used to manufacture
               methamphetamine.” 720 ILCS 646/30(a) (West 2012).
       The charging documents alerted defendant to the fact that he was charged with two separate
       and distinct violations.
¶ 11       While defendant insists he was only guilty of one act of possession, under the statutory
       scheme implemented by our General Assembly, defendant committed two distinct acts of
       possession. Here, defendant possessed two separate items: (1) methamphetamine precursor
       (pseudoephedrine), and (2) methamphetamine-manufacturing materials (lithium batteries,
       “Heet,” and cold packs). This is not a case where one offense could be considered a

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       lesser-included offense, as methamphetamine precursor and methamphetamine-manufacturing
       materials are separate and distinct items under the Act. Possession of methamphetamine
       precursor and possession of methamphetamine-manufacturing materials are based on
       possessing different items, with possession of methamphetamine-manufacturing materials
       specifically excluding methamphetamine precursor. See 720 ILCS 646/30(a) (West 2012).
¶ 12       In King, our supreme court stated, “We hold, therefore, that when more than one offense
       arises from a series of incidental or closely related acts and the offenses are not, by definition,
       lesser included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill.
       2d at 566, 363 N.E.2d at 845. While the acts of possession committed by defendant in the
       instant case are closely related, under the statutory scheme implemented by our General
       Assembly pursuant to the Act, they are separate and distinct acts. Given the unique problems
       created by methamphetamine, the fact that it “is fundamentally different from other drugs,”
       and “the manufacture of methamphetamine is extremely and uniquely harmful” (720 ILCS
       646/5 (West 2012)), we find defendant’s convictions and concurrent sentences were properly
       imposed.
¶ 13       For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby
       affirmed.

¶ 14      Affirmed.




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