                                    2015 IL App (4th) 130652
                                                                                  FILED
                                                                                  May 29, 2015
                                                                                  Carla Bender
                                          NO. 4-13-0652                       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.                                              )    McLean County
 KULDEEP CHATHA,                                            )    No. 12CF204
            Defendant-Appellant.                            )
                                                            )
                                                            )    Honorable
                                                            )    Scott Drazewski,
                                                            )    Judge Presiding.

               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices Knecht and Holder White concurred in the judgment and opinion.

                                            OPINION

¶1             In February 2012, a police confidential source purchased a commercially pack-

aged product from a convenience store owned by defendant, Kuldeep Chatha. Forensic testing

revealed that the product contained a lab-manufactured chemical compound—referred to as AM-

2201—which mimics the effects of cannabis. The State later charged defendant with possession

of a controlled substance with the intent to deliver (50 grams or more of a substance containing

AM-2201 (synthetic cannabis) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole) (720 ILCS

570/401(c)(11) (West 2010)).

¶2             Following a March 2013 bench trial, the trial court found defendant guilty. In Ju-

ly 2013, the court sentenced defendant to (1) jail for 180 days, which the court stayed; and (2)

probation for 3 years.

¶3             Defendant appeals, arguing that the State failed to prove his guilt beyond a rea-
sonable doubt. We agree and reverse.

¶4                                      I. BACKGROUND

¶5                                    A. The State's Charges

¶6             In March 2012, the State charged defendant with possession of a controlled sub-

stance with the intent to deliver. Specifically, the State alleged that defendant "knowingly ***

possessed with the intent to deliver more than [50] grams of a substance containing AM-2201

(synthetic cannabis) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole)."

¶7             B. The Evidence Presented at Defendant's March 2013 Bench Trial

¶8             At a March 2013 bench trial, the parties presented the following evidence.

¶9                                    1. The State's Evidence

¶ 10           Alexander Cole testified that as the result of his earlier arrest for selling cannabis,

in February 2012, he agreed to assist the police by becoming a confidential source. On February

23, 2012, Cole agreed to meet Tim Tyler, a McLean County sheriff, to conduct a "controlled

buy." At that meeting, Tyler (1) searched Cole and his car to ensure the absence of money or

contraband, (2) instructed Cole to drive to a gas station/convenience store owned by defendant to

purchase "spice" marketed as "California Kush," and (3) provided Cole $40 in recorded bills for

that purchase. Tyler directed Cole not to purchase California Kush if the store had it openly dis-

played for sale.

¶ 11           Cole followed Tyler to defendant's store, which was located just outside the city

limits of Lexington, Illinois. After entering the store and confirming that the product was not

openly displayed, Cole asked the cash-register clerk for California Kush. The clerk responded

that the store did not stock that product, but he offered Cole what the clerk described as a similar

product marketed as "Bulldog Potpourri." The clerk reached under the counter and handed Cole



                                                -2-
the product. Cole inspected the packaging and, after noticing that no other Bulldog Potpourri

products were being displayed on the cash-register counter, he agreed to the purchase. The clerk

then scanned a bar code next to the cash register to begin the $27.74 transaction. Cole completed

the sale but did not ask for a receipt. Cole then returned to Tyler and gave him the product and

the remaining money. Cole acknowledged that a glass display case, which he recalled did not

contain any Bulldog Potpourri, was located about four feet away from the left side of the cash

register.

¶ 12           Tyler's testimony regarding the circumstances preceding Cole's February 23,

2012, purchase of Bulldog Potpourri was consistent with Cole's account. Tyler explained that

from the time Cole arrived at defendant's store until the time he left, two police officers

surveilled Cole from the store's parking lot. Afterward, Cole met Tyler at a nearby highway

ramp and gave Tyler the Bulldog Potpourri and remaining money. Tyler performed a second

search of Cole and his car to ensure that Cole did not retain any product or money. Thereafter,

Cole left in his vehicle, and Tyler returned to the sheriff's department to secure the Bulldog Pot-

pourri into evidence.

¶ 13           That afternoon, an evidence technician transported the Bulldog Potpourri to the

Illinois State Police crime lab for analysis. Tyler testified that effective January 1, 2012, the leg-

islature changed Illinois law to make "some chemicals that were contained in some [s]pice prod-

ucts illegal." Hours later, the crime lab informed Tyler that the Bulldog Potpourri contained

AM-2201, which Illinois law classified as a controlled substance. Tyler then obtained a search

warrant for defendant's store, which he and several other officers executed that evening.

¶ 14           During the search of defendant's store, police seized the following amounts of

Bulldog Potpourri: (1) 6 jars on the counter near the register, (2) 33 jars in an open box under-



                                                 -3-
neath the counter, (3) two additional unopened boxes underneath the counter, (4) five jars on top

of the store safe, and (5) two unopened boxes in a locked back office. (A photographic exhibit

admitted into evidence showed that each unopened box held 64 jars of Bulldog Potpourri.)

¶ 15           Tyler explained that approximately 30 minutes after he executed the search war-

rant, he left the officers that were searching defendant's store and returned to the police station.

Tyler called defendant and asked him to come to the police station for an interview. Defendant

agreed, arriving at the station sometime before 9 p.m. that evening. The videotaped interview,

which the trial court viewed, showed the following.

¶ 16           Defendant stated that he owned two gas station/convenience stores, located in

Lexington and Morris, Illinois. Defendant acknowledged that because of a change in the law, he

discontinued selling certain products, effective December 31, 2011. Thereafter, numerous cus-

tomers at his Lexington store inquired why defendant did not sell Bulldog Potpourri, which they

claimed was being sold by a tobacco store in Bloomington, Illinois. Customers asked defendant

to stock the product so that they would not have to drive to Bloomington. At defendant's request,

a customer provided him (1) samples of the product and (2) the telephone number of the tobacco

store from which it was purchased. Defendant called the number, and the person responding

confirmed that the store was selling Bulldog Potpourri. Based on that conversation, defendant

"thought it might be legal."

¶ 17           Defendant stated that his supplier, Mohammed, informed him that Bulldog Pot-

pourri was "natural incense" that was "100% lab tested" and did not contain any "synthetic drug."

(The record does not reveal the supplier's full name.) Mohammed provided defendant a lab re-

port purporting to show that Bulldog Potpourri did not contain any illegal substances. Based on

Mohammed's representations, in February 2012, defendant began selling Bulldog Potpourri in



                                                 -4-
his Lexington store. Acknowledging that some of his customers smoked Bulldog Potpourri, de-

fendant stated he had a strict policy against selling that product to minors. Defendant averred

that if he knew that the product was illegal, he would not have sold it. Defendant did not sell

Bulldog Potpourri from his Morris store because a city ordinance prohibited such sales.

¶ 18           During the interview, Tyler informed defendant of the crime-lab test results. De-

fendant reiterated that if he had known, he would not have sold Bulldog Potpourri. When Tyler

suggested that defendant was "hiding" the Bulldog Potpourri by not displaying it openly, defend-

ant stated that he informed his employees to display the product in the glass case located on the

cash-register counter. Defendant claimed that a container of Bulldog Potpourri was displayed in

the glass case, acknowledging that if he was incorrect, it was likely that the product in the glass

case had been sold and not yet restocked. Defendant stated that he kept a supply of Bulldog Pot-

pourri under the counter so that his sole store clerks working their respective shifts would not

have to walk back and forth from the glass display case each time a customer requested the

product. Defendant denied that he knew Bulldog Potpourri contained a controlled substance.

¶ 19           A few days after his interview, defendant provided Tyler a correspondence dated

January 9, 2012, signed by an "authorized representative" of S.A. Wholesale, LLC, which con-

tained the following information:

                       "S.A. Wholesale, LLC (and Partners) only sell and distrib-

               ute AROMATHERAPY products and are for fragrance purposes

               only, they are NOT TO BE USED IN ANY OTHER WAY. Our

               company, distributors, and retailers ARE NOT responsible for the

               misuse of any of our products.

                       These products DO NOT contain any of the following sub-



                                                -5-
               stances listed on Illinois [House Bill (HB)] 2089 (Public Act 097-

               0193) and (or) HB 2595 (Public Act 097-0192)[.]

                       DOES NOT CONTAIN: JWH-018, JWH-073, AM-694,

               CP 47, 97, HU-210, HU-211, JWH-015, JWH-081, JWH-122,

               JWH-251, RCS-8, BTW-8, and SR-18.

                       If you have any further question regarding our line of

               AROMATHERAPY products[,] please refer to the attached lab re-

               ports and if necessary[,] please consult with your local or state rep-

               resentatives.

                       OUR BRANDS ARE:

                       California 10X, Bulldog, Diesel, PANDORA, and Four El-

               ements." (Emphases in original.)

(Although the aforementioned letter was signed on January 12, 2012, under the heading, "Au-

thorized Representative," the signature was illegible. The letter did not further identify the sign-

er.) Tyler noted that the attached lab report referenced in the corporation's letter analyzed a

product marketed as "California Kronic" instead of Bulldog Potpourri.

¶ 20           Tyler defined the term "spice" as a "synthetic cannabinoid," explaining that he

applied that descriptor to Bulldog Potpourri in a generic sense. Tyler compared his use of the

terms "spice" or "weed" to describe cannabis to the terms "crack" or "coke" to describe cocaine.

Tyler admitted that neither he nor a member of the general public could determine through sight

or smell that Bulldog Potpourri contained AM-2201.

¶ 21           Kerry Nielsen, a forensic scientist employed by the Illinois State Police, testified

that on August 10, 2012, he took possession of a box containing "plant material" packaged in



                                                -6-
approximately 60 plastic containers with screw top lids that the police had seized from defend-

ant's store. Each of the containers had an affixed label that conveyed the following information:

(1) the product's marketing name, "Bulldog Potpourri"; (2) the phrase "lab certified"; (3) the

claim that the product "does not contain any illegal substances"; and (4) warnings that the prod-

uct (a) was "not for human consumption" and (b) should be "[kept] out of reach from children."

¶ 22           Nielsen weighed and scientifically analyzed the plant material from 12 of the con-

tainers "on a molecular level." Based on that analysis, Nielsen (1) determined that the collective

weight of the plant material was 58.4 grams and (2) concluded each of the 12 samples tested pos-

itive for the presence of the chemical compound AM-2201. Nielsen explained that AM-2201 is a

lab-manufactured substance that mimics the effects of ingesting cannabis. Nielsen agreed that

absent specialized scientific testing equipment—which was not available to the general public—

a person would not be able to know by sight alone whether the plant material police seized from

defendant's store contained AM-2201.

¶ 23                                 2. Defendant's Evidence

¶ 24           Defendant testified that he owned two gas stations, located in Lexington and Mor-

ris. Defendant travelled twice a week from his home in Naperville, Illinois, to his Lexington gas

station to perform accounting duties that he estimated took him an hour to perform. Defendant

explained that prior to January 2012, he sold incense in both his stores. In December 2011, de-

fendant stopped selling that incense after finding out from a friend that the product was "going to

be illegal." Defendant elaborated that he believed the incense was banned because it was deter-

mined to be a synthetic drug. Defendant acknowledged that he did not know what substance in

the incense had been banned.

¶ 25           In January 2012, defendant's supplier, Mohammed—who had been supplying de-



                                               -7-
fendant's stores with various clothing items—informed defendant that he had a new, legal prod-

uct called Bulldog Potpourri. Defendant told Mohammed that he was not interested in selling the

potpourri. Sometime thereafter, defendant was at his Lexington store when a customer inquired

why defendant did not sell Bulldog Potpourri. The customer elaborated that a Bloomington store

called "The Smoker's Den" had been selling the product, which caught defendant's interest. De-

fendant gave the customer money and asked him to (1) purchase the product and (2) provide the

telephone number of the tobacco store, which the customer later did. Defendant called The

Smoker's Den and confirmed that the tobacco store was selling Bulldog Potpourri.

¶ 26           Mohammed later contacted defendant to inquire again about the Bulldog Potpour-

ri. Mohammed assured defendant that the potpourri was a natural legal product, and later pro-

vided defendant a lab report to verify that claim. When defendant inquired why the test results

were based on a product called California Kronic, Mohammed told defendant that California

Kronic and Bulldog Potpourri were the same product marketed under different brand names.

¶ 27           In February 2012, defendant began selling Bulldog Potpourri at his Lexington

store. Defendant did not offer Bulldog Potpourri at his Morris store, explaining that in October

2011, a Morris police officer distributed a letter to local businesses informing them that effective

November 2011, a new city ordinance prohibited the sale of "incense" and "potpourri." Defend-

ant noted that a glass case located next to the cash register of his Lexington store displayed nu-

merous items such as toys, flasks, cigarettes, incense, shot glasses, and "potpourri" but the police

did not take pictures of that case during their search. Defendant explained that he displayed

those items (1) to entice sales and (2) so that his sole shift employee would not have to "run back

and forth." Defendant reiterated that if he had known that Bulldog Potpourri contained banned

chemicals, he would not have sold that product.



                                                -8-
¶ 28                               C. The Trial Court's Judgment

¶ 29           After considering the parties' closing arguments, the trial court provided the fol-

lowing rationale for finding defendant guilty of knowingly possessing with the intent to deliver

more than 50 grams of a substance containing AM-2201 (synthetic cannabis) (1-(5-

fluoropentyl)-3-(1-naphthoyl)indole):

                       "The real question here *** is what knowledge or scienter

               needs to be established with respect to the controlled substance, as

               it was determined to be in [defendant's] store and whether or not

               based upon that knowledge both as far as a scienter requirement, as

               far as what the evidence is that demonstrated whether or not that is

               sufficient to meet the State's burden of proof of beyond a reasona-

               ble doubt. So an individual charged with a crime has requisite

               knowledge if the facts indicate [he] had an awareness of the sub-

               stantial probability of a material fact.

                                                ***

                       What the State has indicated in its argument as it relates to

               what facts or factors would support the circumstantial evidence to

               indicate defendant had requisite knowledge that he was in posses-

               sion of a substance that was a controlled substance, and that he had

               knowledge was a number of things primarily *** that [defendant]

               knew that people smoke the Bulldog Spice; that he didn't sell it to

               anyone under the age of 18; that *** defendant[] had sold similar

               type products, that [defendant] had sold similar type products, that



                                                 -9-
he referred to it as a synthetic drug[,] and he was aware that other

types of similar items became banned in December of 2011. [De-

fendant] mistakenly believed that the items were legal; however,

he based his decision to sell the Bulldog based on a lab report giv-

en to him by [S.A.] Wholesaler[s], a company based in California.

And as noted on that *** report, although there is some knowledge

by *** defendant as it relates to an indication that a product that

was tested by S.A. Wholesalers was legal in the State of Illinois, it

was for the product California Kronic and not Bulldog Spice,

which was the item that *** defendant was in possession of and

sold. It's also understandable that the defendant not having the

background and knowledge and experience that being either in

chemistry or in the sciences, that he wouldn't understand the lab

reports. But even reading the lab report for its face value, it does

indicate that California Kronic was tested, not Bulldog Spice.

       In addition, the defendant's behaviors were not consistent

with the sale of a legal product. And that would relate to the fact

that the Bulldog was primarily, not exclusively, hidden from cus-

tomers, primarily where it was located under the register; the fact

that individuals must request it from the cashier; the fact that for a

small jar of product they were charging $27, and also I think by in-

ference the attitude that was taken by *** defendant which is,

okay, I'm aware that the change in the law took effect on January



                                - 10 -
1st, 2012, and so I've got two options ***; one, I could go ahead

and say that I'm not going to sell this product until I know that it's

legal; or he could *** say I'm going to *** sell it until I find it's il-

legal. And we know he opted for the latter as opposed to the for-

mer. There was some risk taken there as well.

        ***

        It's not reasonable to assume that the legislature intended

that the State prove that the accused knew the exact nature or

chemical name of the controlled substance. This would lead to the

absurd result *** that drug dealers would only be liable for selling

the drug they thought they were selling. This approach would

make the statute inapplicable to one who had not personally per-

formed a chemical analysis of the substance containing the con-

trolled substance. So we know that that is not what [defendant]

did, nor is that what is required in order to have knowledge in es-

sence construed to him. The only knowledge in order to find

someone guilty is *** defendant's knowledge or belief that the

substance was a controlled or prohibited substance. The State isn't

required to prove *** defendant knew the exact nature or precise

chemical name of the substance.

        From that perspective, [the court is] looking at the *** pri-

marily circumstantial evidence that the defendant engaged in a

conscious or willful ignorance in essence of this product being le-



                                  - 11 -
               gal or illegal, hear no evil; see no evil. And the law, although not

               being strict liability, would indicate that knowledge, albeit by way

               of circumstantial evidence and demonstrated by the State in this

               case, can and will rise to the level of meeting the State's burden of

               proof beyond a reasonable doubt."

¶ 30           In July 2013, the trial court sentenced defendant as previously noted.

¶ 31           This appeal followed.

¶ 32                         II. SUFFICIENCY OF THE EVIDENCE

¶ 33                       A. The Pertinent Statutory Sections at Issue

¶ 34           Section 401 of the Illinois Controlled Substances Act provides, as follows:

               "Except as authorized by this Act, it is unlawful for any person

               knowingly to manufacture or deliver, or possess with intent to

               manufacture or deliver, a controlled substance other than metham-

               phetamine, a counterfeit substance, or a controlled substance ana-

               log." 720 ILCS 570/401 (West 2010).

¶ 35           Section 401(c)(11) of the Act, the statutory provision defendant was convicted of

violating, provides, as follows:

                       "(c) Any person who violates this [s]ection with regard to

               the following amounts of controlled or counterfeit substances or

               controlled substance analogs *** is guilty of a Class 1 felony. The

               fine for violation of this subsection (c) shall not be more than

               $250,000:

                                               ***



                                               - 12 -
                               (11) 50 grams or more but less than 200

                       grams of any substance containing a substance clas-

                       sified in Schedules I or II, or an analog thereof,

                       which is not otherwise included in this subsection."

                       720 ILCS 570/401(c)(11) (West 2010).

¶ 36           Section 204(d) of the Act, which identifies the controlled substances listed under

Schedule I, provides, as follows:

               "Unless specifically excepted or unless listed in another schedule,

               any material, compound, mixture, or preparation which contains

               any quantity of the following hallucinogenic substances, or which

               contains any of its salts, isomers and salts of isomers, whenever the

               existence of such salts, isomers, and salts of isomers is possible

               within the specific chemical designation (for the purposes of this

               paragraph only, the term 'isomer' includes the optical, position and

               geometric isomers)[.]" 720 ILCS 570/204(d) (West 2010).

¶ 37           In Public Act 97-193, the legislature amended section 204(d) of the Act by adding

section 204(d)(33), the controlled substance at issue in this case, as follows:

                       "(33) Any compound structurally derived from 3- (1-

               naphthoyl) indole or 1H-indol-3-yl- (1-naphthyl) methane by sub-

               stitution at the nitrogen atom of the indole ring by alkyl, haloalkyl,

               alkenyl, cycloalkylmethyl, cycloalkylethyl or 2- (4-morpholinyl)

               ethyl whether or not further substituted in the indole ring to any ex-

               tent ***[.]" Pub. Act 97-193 (eff. Jan. 1, 2012) (adding 720 ILCS



                                               - 13 -
               570/204(d)(33)).

(We note that the legislature, apparently never resting, has since amended section 204(d) further,

to include additional chemical compounds it has now classified as controlled substances. In so

doing, the aforementioned section enacted by Public Act 97-193 now appears as section

204(d)(42) of the Act. See 720 ILCS 570/204(d)(42) (West 2012).)

¶ 38                                 B. The Standard of Review

¶ 39           "When considering a challenge to the sufficiency of the evidence, a reviewing

court must determine whether, after viewing the evidence in the light most favorable to the State,

any rational trier of fact could have found the required elements of the crime beyond a reasona-

ble doubt." People v. Gonzalez, 239 Ill. 2d 471, 478, 942 N.E.2d 1246, 1250 (2011). "General-

ly, the trier of fact has had the opportunity to hear and see the witnesses and, for that reason, is in

the best position to judge credibility." People v. Austin M., 2012 IL 111194, ¶ 107, 975 N.E.2d

22. The burden to prove a defendant's guilt beyond a reasonable doubt rests solely upon the

State. In re Vuk R., 2013 IL App (1st) 132506, ¶ 7, 2 N.E.3d 1083. A reviewing court will af-

firm a conviction if credible evidence removes all reasonable doubt as to the defendant's guilt.

Id. A conviction based on evidence that is improbable, unconvincing, or contrary to human ex-

perience requires reversal. People v. Ortiz, 196 Ill. 2d 236, 267, 752 N.E.2d 410, 429 (2001).

¶ 40                                    C. Defendant's Claim

¶ 41           "In order to convict a defendant of possession of a controlled substance with in-

tent to deliver, the State must prove the defendant (1) had knowledge of the presence of the nar-

cotics, (2) had possession or control of the narcotics[,] and (3) intended to deliver the narcotics."

People v. Blakney, 375 Ill. App. 3d 554, 557, 873 N.E.2d 1007, 1010 (2007).

¶ 42           Our analysis begins by noting what is not at issue in this case. On this record, it is



                                                - 14 -
undisputed that defendant sold a commercially packaged product marketed as Bulldog Potpourri

from his Lexington convenience store. It is also undisputed that the potpourri defendant sold

contained a controlled substance—namely the chemical compound "1-(5-fluoropentyl)-3-(1-

naphthoyl)indole)" referred to as AM-2201. However, "[a] defendant cannot be convicted simp-

ly because he sold a product containing a controlled substance." People v. Patel, 2013 IL App

(4th) 121111, ¶ 33, 996 N.E.2d 1114. As properly framed by the parties and the trial court, the

only issue before us concerns defendant's knowledge. Specifically, whether the evidence before

the court—acting as the trier of fact—was sufficient for any rational trier of fact to find that de-

fendant knew the Bulldog Potpourri he possessed and sold contained a controlled substance. The

court found that the State presented sufficient circumstantial evidence to prove this element be-

yond a reasonable doubt. See Ortiz, 196 Ill. 2d at 260, 752 N.E.2d at 425 ("Knowledge may be,

and ordinarily is, proven circumstantially."). We disagree.

¶ 43           We earlier quoted a portion of Public Act 97-193, which amended section 204(d)

of the Act by adding then section 204(d)(33) (now codified as section 204(d)(42) of the Act), the

controlled substance at issue in this case, as follows:

                       "(33) Any compound structurally derived from 3- (1-

               naphthoyl) indole or 1H-indol-3-yl- (1-naphthyl) methane by sub-

               stitution at the nitrogen atom of the indole ring by alkyl, haloalkyl,

               alkenyl, cycloalkylmethyl, cycloalkylethyl or 2- (4-morpholinyl)

               ethyl whether or not further substituted in the indole ring to any ex-

               tent ***[.]" Pub. Act 97-193 (eff. Jan. 1, 2012) (adding 720 ILCS

               570/204(d)(33).

¶ 44           In that same public act, the legislature added section 204(d)(34) (now codified as



                                                - 15 -
section 204(d)(43) of the Act), which also prohibited the following controlled substance:

                       "(34) Any compound structurally derived from 3- (1-

               naphthoyl) pyrrole by substitution at the nitrogen atom of the

               pyrrole ring by alkyl, haloalkyl, alkenyl, cycloalkylmethyl,

               cycloalkylethyl or 2- (4-morpholinyl) ethyl, whether or not further

               substituted in the pyrrole ring to any extent, whether or not substi-

               tuted in the naphthyl ring to any extent[.]" Pub. Act 97-193 (eff.

               Jan. 1, 2012) (adding 720 ILCS 570/204(d)(34)).

¶ 45           The aforementioned statutory revisions highlight the challenges posed in crimi-

nalizing a lab-manufactured chemical substance by identifying its molecular composition. First,

we doubt that anyone without an advanced degree in chemistry could articulate intelligently the

differences between the two aforementioned controlled substances, much less identify with cer-

tainty the specific controlled substances if they were shown in their raw form. Second, given

that these lab-manufactured controlled substances can likely be applied to any legal product, only

scientific testing can confirm their presence.

¶ 46           Because the State will almost never be able to prove that someone in defendant's

position knowingly possessed the specific chemical substance at issue, the most the State can

hope to prove is that the accused knowingly possessed something that could be ingested for its

intoxicating effects. This was essentially the extent of the State's proof in this case. The obvious

problem with this method of proving criminal liability is that the legislature has not seen fit to

impose a blanket ban on the ingestion of substances for their intoxicating effects. As the ever-

expanding list of illegal chemical substances demonstrates, many chemical substances experi-

ence a period after they have been developed, marketed, and distributed to the masses, but before



                                                 - 16 -
the legislature has criminalized them.

¶ 47           For example, at the time defendant received the shipment of Bulldog Potpourri,

the chemical compound known as "4-iodo-2, 5-dimethoxy-N- ((2-methoxy phenyl) methyl) -

benzeneethanamine" was perfectly legal in Illinois. See Pub. Act 98-987, § 5 (eff. Jan. 1, 2015)

(amending 720 ILCS 570/204 (West 2012)). The average lay person would have no way of

knowing what such a substance looked or smelled like, or how it was packaged, marketed, sold,

or ingested. From defendant's perspective, based upon his inquiry to the manufacturer, Bulldog

Potpourri probably contained some legal chemical substance that his customers enjoyed smoking

for its intoxicating effects. Indeed, if Bulldog Potpourri had simply contained 4-iodo-2,5-

dimethoxy-N-((2-methoxy phenyl)methyl)-benzeneethanamine—instead of a compound struc-

turally derived from 3-(1-naphthoyl)indole or 1H-indol-3-yl-(1-naphthoyl)methane by substitu-

tion at the nitrogen atom of the indole ring by alkyl, haloalkyl, alkenyl, cycloalkylmethyl,

cycloalkylethyl or 2-(4-morpholinyl)ethyl whether or not further substituted in the indole ring to

any extent—it would have been perfectly legal for defendant to sell it from his store in 2012.

This illustrates the near impossibility of proving knowing possession in cases involving such lab-

manufactured chemicals.

¶ 48           In Patel, 2013 IL App (4th) 121111, ¶ 1, 996 N.E.2d 1114, this court considered

the sufficiency of the evidence the State presented to convict the store clerk that sold the Bulldog

Potpourri to Cole. In reversing the store clerk's conviction for delivery of a controlled substance

(substance containing AM-2201 (synthetic cannabis)) (1-(5-fluoropentyl)-3-(1-naphthoyl)indole)

(720 ILCS 570/401(e) (West 2010)), we noted the following:

               "The police and the State treated this case like a street-corner drug

               deal, where knowledge is easier to establish considering the con-



                                               - 17 -
               trolled substance is usually not professionally packaged and is sold

               in a secretive manner for cash. This was certainly not the situation

               in this case. Defendant was a clerk at a gas station-convenience

               store selling hundreds if not thousands of legal products. This is

               not to say employees of a gas station, like the one in question,

               could never be convicted of selling illegal products. However, a

               trier of fact must consider all of the circumstances when determin-

               ing whether a defendant knew he was selling a product containing

               a controlled substance. It is much more difficult to establish a

               worker selling a professionally packaged product from a conven-

               ience store, as compared to a street dealer, knew a product stocked

               by the store owner contained a controlled substance." Patel, 2013

               IL App (4th) 121111, ¶ 65, 996 N.E.2d 1114.

¶ 49           Our analysis in Patel is equally applicable to the facts presented in the instant

case. The issue of whether defendant—as the store owner—knew that the commercially pack-

aged plant material he stocked and sold contained the addition of a nonorganic controlled sub-

stance defined by its molecular composition is distinctly more complicated and difficult to prove

beyond a reasonable doubt than an analysis concerning the typical street-corner exchange of

money for cannabis in which the controlled substance organically derives from the plant material

at issue. See 720 ILCS 550/3(a) (West 2010) (defining cannabis, in part, as including

"tetrahydrocannabinol (THC) and all other cannabinol derivatives"). In both scenarios, however,

the analysis concerning the defendant's knowledge "must include consideration of all of the evi-

dence, not just the evidence convenient to the State's theory of the case." People v. Wheeler, 226



                                               - 18 -
Ill. 2d 92, 117, 871 N.E.2d 728, 742 (2007).

¶ 50           In support of its verdict, the trial court specifically noted the following circum-

stantial evidence: (1) defendant knew some of his customers smoked Bulldog Spice; (2) defend-

ant did not sell Bulldog Spice to anyone under 18 years of age; (3) the Bulldog Potpourri was

"primarily, [but] not exclusively, hidden from customers"; (4) defendant "had sold similar type

products that he referred to as a synthetic drug"; (5) defendant was aware that in December 2011,

"other types of similar items" were banned; and (6) the cost of the Bulldog Portpourri was ap-

proximately $27. The court deduced from this circumstantial evidence that defendant "engaged

in a conscious and willful ignorance" regarding the legality of Bulldog Potpourri.

¶ 51           In this case, the evidence presented showed the following: (1) in December 2011,

defendant discontinued the sale of a specific incense product from his Lexington store because

that product had been banned; (2) in January 2012, defendant was approached by his supplier to

stock a new product marketed as Bulldog Potpourri, which defendant initially declined; (3) in

February 2012, defendant began selling Bulldog Potpourri based on (a) another store's sales of

that product, (b) a laboratory report showing that a supposedly identical product did not contain

any illegal substances, and (c) his supplier's representation that Bulldog Potpourri was legal; (4)

defendant knew some customers smoked the Bulldog Potpourri; and (5) on February 23, 2013,

defendant did not openly display Bulldog Potpourri in his store. The State did not even attempt

to present any evidence that defendant had even heard of the chemical compound AM-2201 be-

fore his arrest for knowingly possessing that substance with the intent to deliver.

¶ 52           We first reject the notion that defendant's knowledge concerning how some of his

customers misused Bulldog Potpourri is circumstantial evidence showing defendant knew that

specific product contained a controlled substance. The revelation that adults and minors will



                                               - 19 -
misuse a product—offered for a specific legal purpose—by ingesting it to alter their mood does

not necessarily mean that the product contains a specific banned substance. Defendant's admis-

sion that he knew customers smoked Bulldog Potpourri does not put him on notice that the prod-

uct was presumptively illegal anymore than—for example—a purveyor's knowledge that his cus-

tomers were buying oranges intending to smoke the peels should lead to the conclusion that the

oranges contained a controlled substance. We note that during his interview with Tyler, defend-

ant stated that his knowledge regarding the product's misuse prompted his store policy banning

the sale of Bulldog Potpourri to minors.

¶ 53           We also note that the State presented evidence showing that on February 23,

2012, defendant did not display Bulldog Potpourri openly, which the State claimed provided cir-

cumstantial evidence of defendant's knowledge that the product contained a controlled sub-

stance—a claim defendant disputed. Our analysis of defendant's actions and demeanor before

and after police began their investigation militates against the State's claim.

¶ 54           Here, the uncontroverted evidence presented showed that before February 23,

2012, defendant willingly complied with applicable laws and ordinances and demonstrated his

concern about the legality of the products offered in his stores. Specifically, (1) in November

2011, defendant complied with a Morris city ordinance that prohibited the sale of "incense" and

"potpourri" at his Morris store; (2) in December 2011, defendant discontinued selling the incense

that the legislature banned; and (3) during January 2012, defendant investigated Bulldog Pot-

pourri to assuage his concerns before offering that product to the public. Although a trier of fact

may question the effectiveness of defendant's investigation concerning whether Bulldog Potpour-

ri contained a controlled substance, as we have already noted, absent scientific testing, defendant

could not conclusively determine whether the otherwise legal potpourri contained a controlled



                                                - 20 -
substance. We disagree with the trial court's characterization that defendant's actions showed he

"engaged in a conscious or willful ignorance" regarding the legality of the product.

¶ 55           Defendant's demeanor also demonstrated his willingness to comply with the re-

quests levied by Tyler during his investigation, which included (1) travelling on short notice to

comply with Tyler's interview request, in which defendant answered all of Tyler's questions; and

(2) later providing Tyler further documentation regarding representations he made during that

interview. Under these circumstances, defendant's actions and willing cooperation buttressed his

steadfast insistence that if he knew the Bulldog Potpourri contained a controlled substance, he

would have stopped selling the product. At best, the State's evidence suggested that defendant

knew Bulldog Potpourri was packaged and marketed similarly to products containing substances

the legislature had previously banned. However, that evidence was insufficient to establish be-

yond a reasonable doubt that defendant knew Bulldog Potpourri contained AM-2201. Accord-

ingly, we reverse defendant's conviction and sentence.

¶ 56                                   III. CONCLUSION

¶ 57           For the reasons stated, we reverse the trial court's judgment.

¶ 58           Reversed.




                                               - 21 -
