                             2018 IL App (2d) 170150

                                  No. 2-17-0150

                            Opinion filed June 28, 2018 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                               SECOND DISTRICT

______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS,       ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff-Appellee,              )
                                       ) No. 13-CF-1891
                                       )
JOHN G. MONTELEONE,                    ) Honorable
                                       ) Linda S. Abrahamson,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BURKE delivered the judgment of the court, with opinion.
       Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

                                            OPINION

¶1     On three separate occasions beginning in July 2013, an undercover police officer purchased

commercially packaged products, known as “Mary Joy” and “Mary Joy Dead and Berried,” from

the King Puff-N-Stuff smoke shop owned by defendant, John G. Monteleone. The ingredient list

on the packages did not include any illegal substances, but lab results revealed that the products

contained lab-manufactured chemical compounds frequently referred to as synthetic cannabinoids,

which are illegal controlled substances. The State charged defendant by indictment with several

counts and, following a bench trial, defendant was found guilty of six counts. Defendant appeals

his convictions of delivery of a controlled substance and unlawful possession with intent to deliver

a controlled substance. To convict a defendant of these offenses, the State must prove, inter alia,

that the defendant knew that the substance was illegal.    Defendant admits that he possessed and
2018 IL App (2d) 170150


sold the products, but he contends that the State failed to prove beyond a reasonable doubt that he

knew that the products contained an illegal substance. We affirm.

¶2                                          I. FACTS

¶3     Defendant’s charges included three counts of delivery of a controlled substance (counts V,

VI, and VII), two counts of possession with intent to deliver a controlled substance (counts I and

III), two counts of possession of a controlled substance (counts II and IV), one count of

possession of cannabis (count VIII), and one count of possession of drug paraphernalia (count

IX).   Except for counts VIII and IX, the counts alleged that defendant sold and possessed an

amount of a “substance containing 1-Pentyl-3-(2,2,3,3 tetramethylcyclopropyl) indole (UR-144),

1-(5-fluoropentyl)-3-(2,2,3,3 tetramethylcyclopropoyl) indole (XLR-11), a controlled substance

analog that has a chemical structure substantially similar to that of the controlled substance

JWH-018.”     See 720 ILCS 550/4(b) (West 2012); 720 ILCS 570/401(a)(11), (c)(11), (d),

402(a)(11), (c) (West 2012); 720 ILCS 600/3.5(a) (West 2012).

¶4     The following relevant facts were taken from the trial.     Scott Torkleson, the undercover

police officer, entered defendant’s store on July 16, 2013.     The store displayed digital scales,

smoking pipes, bongs, vaporizers, and tobacco products in glass cases and on the walls.

Torkleson asked if defendant had any Mary Joy for sale.       Defendant responded that he did and

that another person, who had just entered the store, also was there to purchase Mary Joy.

Defendant went to an office in the back of the store for a few minutes and then called the other

person to the office.   After a short period, that person left the store, carrying cash in his hand.

Defendant then called Torkleson to the office.    Defendant showed him a small green and purple

package labeled “Mary Joy” and told Torkleson that it would cost $15.              Torkleson paid

defendant with a $20 bill.   Defendant did not use the cash register or give Torkleson a receipt.



                                               -2­
2018 IL App (2d) 170150


Torkleson asked if he could return and buy more if he liked it, and defendant responded

“absolutely.” Defendant gave him a business card on his way out.

¶5      Torkleson later called defendant and told him that he wanted to purchase more Mary Joy

and defendant said that he would meet him at the store. When Torkleson returned to the store,

on July 25, 2013, defendant stated that he had only one package of Mary Joy but that he also had

Mary Joy Dead and Berried.     Defendant told Torkleson that he should be careful with it because

it was very strong; that it would “knock him on his ass.” Defendant and Torkleson walked to the

back office.    Torkleson saw defendant take the Mary Joy and the Dead and Berried out of an

open safe that contained money. Torkleson then purchased the two packages from defendant,

with cash.     As before, defendant did not ring up the purchase or give Torkleson a receipt.

Before he left, Torkleson asked defendant about purchasing cannabis, and defendant said that he

could take care of him.

¶6      On September 19, 2013, Torkleson conducted another undercover buy from defendant.

When he entered the store, defendant asked if he was there to purchase some Mary Joy.

Torkleson said yes and they went to the back office.   Torkleson saw defendant take the Mary Joy

out of the safe before he handed it to him.   Defendant did not ring up the $15 purchase or give

Torkleson a receipt. Torkleson never saw Mary Joy displayed or advertised in the public area of

the store.

¶7      Torkleson testified that, based on his training, he knew that none of the ingredients listed

on the back of the Mary Joy package was an illegal substance.      The ingredient list for Dead and

Berried was identical to that for Mary Joy.   The package itself was a manufactured container, not

a baggie.




                                               -3­
2018 IL App (2d) 170150


¶8       Virgil Schroeder, a master sergeant with the Illinois State Police, testified that on

September 25, 2013, search and arrest warrants were served on defendant in his store.

Defendant gave Schroeder the combination to his safe and told him that there was some “Spice”

in it.   “Spice” is a generic term for various synthetic cannabinoids.   Schroeder found two plastic

bag bundles containing both types of Mary Joy in the safe.     He found no other packages of either

kind of Mary Joy in the rest of the store.    He did find a pipe that appeared to have been used to

smoke some kind of substance.          When Schroeder went to defendant’s residence, he saw

defendant’s wife, Tracy, in her car and noticed two large overflowing tubs of Mary Joy and Dead

and Berried in her back seat.    In total, there were 3295 packages of Mary Joy.

¶9       Master Sergeant William Backus assisted in executing the warrant.      Defendant told him

“I no longer sell drugs here anymore.        I just have a little weed.” Another officer searched

defendant and found a small amount of cannabis.

¶ 10     Sara Anderson, a forensic drug chemistry expert who worked at the Illinois State Police

forensic science laboratory, received a bag of plant material on August 6, 2013.      Using several

techniques, including a gas chromatograph mass spectrometer, she determined that the plant

material contained XLR-11 and UR-144.        It did not contain JWH-018.

¶ 11     Martin Skelcy, another forensic drug chemistry expert employed by the State Police,

analyzed the material and found that it contained XLR-11 and UR-144.           He also weighed and

tested the bin full of Mary Joy packages.      The bin contained 209 grams of Mary Joy, and the

plant material in the packages contained XLR-11 and UR-144.

¶ 12     Greg Endres, who was qualified as an expert in the field of medicinal and forensic

chemistry, identified chemical diagrams of both tetrahydrocannabinol (THC), the active

ingredient in cannabis, and JWH-018.          JWH-018’s structure has some similarity to THC,



                                                -4­
2018 IL App (2d) 170150


primarily because it binds to cannabinoid receptors in the human body.               This binding is

responsible for the psychotropic effects of cannabis and synthetic cannabinoids.            Synthetic

cannabinoids have more serious adverse effects on the body and tend to continually increase in

effect with dosage.   “K2” and “Spice” are two early and predominant brand names of an herbal

mixture that has been sprayed with synthetic cannabinoids.              Endres noted that synthetic

cannabinoids have dozens of brand names, which are constantly changing.                He frequently

referred to all synthetic cannabinoids as K2.      He also noted that new, slightly distinct compounds

are designed and marketed to avoid criminal liability.          Endres concluded that UR-144 and

XLR-11 are substantially similar to JWH-018, falling within the same subclassification of

indole-based synthetic cannabinoids.       In drug-discrimination tests, mice were not able to

discriminate between XLR-11 or UR-144 and THC or JWH-018.                  He testified that, within a

reasonable degree of scientific certainty, XLR-11 and UR-144 are analogs of JWH-018.           Endres

testified that new synthetic cannabinoids are created by chemists to be similar to existing ones but

not specifically banned by statute.   XLR-11 and UR-144 were not specifically banned by federal

statute until May 2013.    Under Illinois law, they are illegal based on the analog statute, but there

are synthetic cannabinoids that are not illegal.

¶ 13   Jeffrey Moran, an expert in the field of synthetic-cannabinoid pharmacology, metabolism,

and detection, testified that JWH-018 is a controlled substance under both federal and Illinois law.

He stated that XLR-11 and UR-144 are substantially similar to JWH-018, and he opined that they

are analogs of JWH-018.

¶ 14   Jeff File, an Illinois State Police officer, searched the King Puff-N-Stuff after other

officers executed the search warrant on the business.        He did not find any Mary Joy or other




                                                   -5­
2018 IL App (2d) 170150


illegal substances in the main customer area.    He also searched the glass case on the counter and

did not find any Mary Joy or empty Mary Joy packages or any sign that it was for sale.

¶ 15     File also interviewed defendant.   Defendant stated that he had about 85 packages of Mary

Joy and between 35 and 40 packages of Dead and Berried in his safe in the back room of his

store.   Defendant stated that he had a number of suppliers whose full names he did not know and

that people who purchased the product rolled it into blunts and seemed to get addicted to it.

Defendant stated that he used it once and got a head rush but that it did not get him high.     He

believed that Mary Joy was illegal under federal law, though he was not sure about Illinois, and

thus he kept it in the back room    Defendant also stated that he had just purchased 1000 packets

from his supplier “Eric” to get him through the winter and that the officers could go to the house

and retrieve them. Defendant had been selling Mary Joy for three or four months before his

arrest. Defendant placed his Mary Joy money in his right pocket and his other money in his left

pocket to pay vendors.

¶ 16     Defendant gave a written statement, in which he admitted that the Mary Joy and the

marijuana found in his house and his wife’s car were his.    As to whether he sold illegal items at

his store, he wrote Mary Joy and Dead and Berried.        Defendant also wrote that he knew that

people misused the drugs by consuming them and that the five times he used Mary Joy, it made

him light-headed.    He sold 20 to 60 packages of Mary Joy a day and he did not display it in the

store, because he was unsure if it was legal.      Defendant stated that, because the effects are

short-lived, younger people smoke it more often.           Defendant also noted that he had a

quarter-pound of marijuana in his house.




                                                -6­
2018 IL App (2d) 170150


¶ 17    At the close of the State’s evidence, defendant moved for a directed verdict.      The trial

court granted the motion only as to the cannabis-related count VIII.    Counts III and IV were nol­

prossed by the State.

¶ 18    Testifying on his own behalf, defendant stated that he had researched the products Mary

Joy and Dead and Berried at MaryJoy.com, the website listed on the back of the packages.         The

site indicated that Mary Joy and Dead and Berried were legal in all 50 states.   He also researched

every ingredient listed on the back of the packages and found nothing to be illegal.      Defendant

stated that he displayed his herbal products, including Mary Joy and Dead and Berried, in acrylic

cases that sat on the store’s counters.   He kept one package of each in the case and the rest in a

box underneath the counter.     Because there was an attempted but failed third burglary at his

store, defendant moved the box out of the main area of the store and placed it in a safe in the back

room.

¶ 19    When he was arrested on September 25, 2013, for selling illegal drugs, defendant told the

officers that he did not sell illegal drugs.   There was no money in the safe where the officers

found the Mary Joy and the Dead and Berried.          Defendant stated that he never referred to the

contents of the safe as “Spice.” He had never heard that term. He kept the money from Mary

Joy sales in a separate pocket because he bought the packages on consignment and needed to pay

his supplier for them.   Defendant did not find out that Mary Joy was illegal until the officers told

him during the interrogation.    Defendant identified surveillance videos from September 21 and

23, 2013, in which he sold Mary Joy to customers using credit cards at the register.      Defendant

denied saying to the officers that he did not sell drugs at the store anymore.

¶ 20    Following the State’s rebuttal case and closing arguments, the trial court found defendant

guilty on counts I and II, counts V, VI, and VII, and count IX.              The trial court denied



                                                -7­
2018 IL App (2d) 170150


defendant’s motion to reconsider.     Thereafter, the court sentenced defendant.   It merged count

II into count I and sentenced defendant to six years’ imprisonment.   As to counts V, VI, and VII,

the court sentenced defendant to three years’ imprisonment to run concurrently with the sentence

on count I.    It sentenced defendant to pay a mandatory $750 fine on count IX.         Defendant

timely appeals.

¶ 21                                      II. ANALYSIS

¶ 22   Defendant appeals his convictions of unlawful delivery of and possession with intent to

deliver a controlled substance. Section 401 of the Illinois Controlled Substances Act states, in

relevant part, “[e]xcept 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 methamphetamine, a counterfeit substance, or a controlled substance analog.”

(Emphasis added.) 720 ILCS 570/401 (West 2012).            Under a charge of either delivery or

unlawful possession with intent to deliver, the State must prove that the defendant knew what he

or she was delivering or intending to deliver.     See People v. Robinson, 167 Ill. 2d 397, 407

(1995) (defendant must have knowledge of the presence of the narcotics); People v. Brooks, 271

Ill. App. 3d 570, 575 (1995) (“the State was required to prove that defendant knew he was

delivering cocaine”).

¶ 23   Defendant contests solely whether the State proved beyond a reasonable doubt that he

knew that the Mary Joy and the Dead and Berried he delivered or possessed and intended to

deliver contained a controlled substance.    Because the trial court made a factual determination

that defendant knew what he was selling, defendant must establish that the evidence was not

sufficient to support this finding.




                                               -8­
2018 IL App (2d) 170150


¶ 24      When a defendant challenges the sufficiency of the evidence, a court of review must

determine “whether, [after] viewing the evidence in the light most favorable to the State, ‘ “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” ’ ” (Emphasis in original.) People v. Belknap, 2014 IL 117094, ¶ 67 (quoting People

v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

It is not the role of the reviewing court to retry the defendant. In re Q.P., 2015 IL 118569, ¶ 24.

Rather, it is the responsibility of the trier of fact to resolve conflicts in the testimony, weigh the

evidence, and draw reasonable inferences from the facts.        People v. Bradford, 2016 IL 118674, ¶

12.      Therefore, a court of review will not substitute its judgment for that of the trier of fact on

questions involving the weight of the evidence or the credibility of the witnesses.              Id.   A

criminal conviction will not be reversed for insufficient evidence unless the evidence is so

unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the defendant’s

guilt.     Belknap, 2014 IL 117094, ¶ 67.

¶ 25      “A person knows, or acts knowingly or with knowledge of:

                  (a) The nature or attendant circumstances of his or her conduct, described by the

          statute defining the offense, when he or she is consciously aware that his or her conduct is

          of that nature or that those circumstances exist. Knowledge of a material fact includes

          awareness of the substantial probability that the fact exists.

                  (b) The result of his or her conduct, described by the statute defining the offense,

          when he or she is consciously aware that that result is practically certain to be caused by

          his conduct.” 720 ILCS 5/4-5 (West 2012).

¶ 26      Knowledge, as an element of a criminal offense, is a question of fact for the trier of fact to

decide.      People v. Frazier, 2016 IL App (1st) 140911, ¶ 23.            Direct proof of a defendant’s



                                                   -9­
2018 IL App (2d) 170150


knowledge is unnecessary, and a defendant’s knowledge can be inferred from the surrounding 


facts and circumstances.    Id.   “Knowledge may be, and ordinarily is, proven circumstantially.”


People v. Ortiz, 196 Ill. 2d 236, 260 (2001).


¶ 27    In addressing the issue of knowledge, the trial court relied on McFadden v. United States, 


576 U.S. ____, 135 S. Ct. 2298 (2015), and United States v. Ramos, 814 F.3d 910 (8th Cir. 2016).


We find the analyses in McFadden and Ramos instructive.


¶ 28    In McFadden, the United States Supreme Court elucidated two ways the government


could prove knowledge in analog cases.        The Court explained that the government must either


(1) show that the defendant knew that he or she was dealing with some controlled substance,

regardless of whether he or she knew the particular identity of the substance, or (2) show that the

defendant knew the specific features of the substance that make it a controlled-substance analog,

even if he or she did not know its legal status as an analog.      Id. at ___, 135 S. Ct. at 2302.

These features include (1) having a chemical structure that is substantially similar to the chemical

structure of a controlled substance and (2) having a stimulant, depressant, or hallucinogenic effect

on the central nervous system that is substantially similar to or greater than the effect on the

central nervous system of a controlled substance, or being represented or intended to have that

effect with respect to a particular person.   Id. at ___, 135 S. Ct. at 2304-05 (citing 21 U.S.C. §

802(32)(A) (2012)).

¶ 29    The Court found that such knowledge is sufficient because “[a] defendant who possesses a

substance with knowledge of those features knows all of the facts that make his conduct illegal,

just as a defendant who knows he possesses heroin knows all of the facts that make his conduct

illegal.”   Id. at ___, 135 S. Ct. at 2305.   “A defendant need not know of the existence of the

[Controlled Substance Analogue Enforcement Act of 1986 (21 U.S.C. § 802 (2012))] to know that



                                                 - 10 ­
2018 IL App (2d) 170150


he was dealing with ‘a controlled substance.’ ” Id. at ___, 135 S. Ct. at 2305.    In a footnote, the

Court observed that the requisite mental state could be proved by circumstantial evidence, such as

a defendant’s concealment of his activities, evasive behavior with respect to law enforcement, and

knowledge that a particular substance produces a high similar to that produced by controlled

substances.    Id. at ___ n.1, 135 S. Ct. at 2304 n.1.

¶ 30   In Ramos, 814 F.3d 910 (8th Cir. 2016), a case with facts similar to those in the present

case, the defendant managed an iWireless store and was convicted of selling synthetic

cannabinoids and bath salts.      She drove to meet a confidential informant to sell him “Mr.

Happy” and bath salts.     The defendant sold him one packet of Mr. Happy and one jar of “Blue”

for $75.   She did not charge sales tax for the purchase and did not process the transaction

through her register at the store.     A test performed by the United States Drug Enforcement

Administration (DEA) later determined that the Blue contained a substance with a chemical

structure substantially similar to that of the controlled substance methylenedioxypyrovalerone

(MDPV).       A search at the defendant’s store revealed Blue in a drawer under the register counter

and hundreds of packets containing synthetic cannabinoids around the store, including in a drawer

under the counter, a back storage room, and the back office.      None of the synthetic cannabinoid

products were advertised in the store.       A majority of these products contained XLR-11 and some

contained UR-144.      Each jar of Blue contained pyrrolidinopentiophenone (á-PVP).      The agents

also found smoking paraphernalia, including glass pipes and rolling papers. Id. at 912-13.      The

defendant was found guilty on the drug-related counts.          She contended that the government

failed to prove that she knew that the synthetic cannabinoid products contained XLR-11 or some

other controlled substance.    Id. at 915.




                                                  - 11 ­
2018 IL App (2d) 170150


¶ 31   The court found that the following evidence was sufficient to show the defendant’s

knowledge that she possessed and sold a controlled substance of some kind.             The packets

containing synthetic cannabinoid products were not on public display in the store or advertised in

any way.    A DEA agent who posed as a customer in the defendant’s store testified that the

defendant produced packets of Mr. Happy and Mr. Nice Guy only after the agent requested

“potpourri,” a street name for synthetic cannabinoid products.        The defendant, unprompted,

asked if the agents needed rolling papers with the “Mr. Nice Guy” purchase, although the product

label stated that it was not for human consumption.           Hundreds of packets found in the

defendant’s car contained synthetic cannabinoids, stored out of public view.

¶ 32   The court also found that the evidence was sufficient to show that the defendant knew the

specific features of á-PVP that made it a controlled substance, under McFadden’s second method

of proving knowledge.     The evidence suggesting that the defendant knew that she possessed an

analog of a controlled substance with a chemical structure similar to a drug listed on the federal

drug schedules included that the defendant understood the street term for bath salts, that the

defendant attempted to conceal the sale, that the defendant did not charge tax or provide a receipt

for the purchase, and that the price for the Blue, labeled as scouring powder, far exceeded the cost

of comparable cleaning products. Id. at 917.

¶ 33   Other circumstantial evidence supported the inference that the defendant understood the

pharmacological effects of Blue, specifically that it produced a high similar to that of a controlled

substance, as the defendant stated that the informant would be “real happy” following the

late-night transaction. Id. at 917-18.

¶ 34   Here, as in Ramos, circumstantial evidence supported the inference of the required mental

state, such as defendant’s concealment of the sales, his evasive behavior with respect to law



                                               - 12 ­
2018 IL App (2d) 170150


enforcement, and his knowledge that a particular substance produces a high similar to that

produced by controlled substances.       The sales took place in a back room, outside public view.

The sales were by cash.      There was no evidence that defendant charged tax or used a register at

the store.    Defendant did not provide receipts.     The products were not on display or advertised.

Hundreds of packages were found in defendant’s wife’s car.            Defendant used cash to purchase

the products from suppliers and knew the suppliers only by their first names.         Defendant kept the

cash from the sales of the products separate from the proceeds of his other store transactions by

placing the cash in his right pocket.      Defendant also made statements to Torkleson indicating

that he knew the specific features of the products that made them controlled substances.

Defendant told him not only that his customers misused the products by smoking them, but that

younger individuals smoked them more often because the effects wore off quickly.             He also said

that he had smoked Mary Joy and it had made him feel light-headed, and he told Torkleson that

Dead and Berried could “knock him on his ass.” Defendant also told Torkleson that he would

sell cannabis to him, and defendant had cannabis in his possession when he was arrested.

¶ 35    Although defendant testified that he placed the products out of sight because of an

attempted burglary, this raised a question of credibility and we give due consideration to the fact

that it was the trial court, as the trier of fact, that saw and heard him testify.   We defer to the trial

court’s credibility assessments, because a court of review is not in a position to observe a witness

as he or she testifies.   People v. Harris, 297 Ill. App. 3d 1073, 1083 (1998).       Even if we were to

believe defendant, the other circumstantial evidence was sufficient to establish beyond a

reasonable doubt that defendant knew that he possessed and sold products containing controlled

substances.




                                                 - 13 ­
2018 IL App (2d) 170150


¶ 36   Defendant relies on People v. Patel, 2013 IL App (4th) 121111, and People v. Chatha,

2015 IL App (4th) 130652.     Patel and Chatha arose from the same transaction.       Patel was a

convenience store clerk who sold a controlled substance, and Chatha owned the store where the

product was sold.    A search of the store took place the same day as the sale.         Patel was

convicted of unlawful delivery of a controlled substance containing synthetic cannabis.     Patel,

2013 IL App (4th) 121111, ¶ 1. Chatha was found guilty of possession with intent to deliver the

synthetic cannabis. Chatha, 2015 IL App (4th) 130652, ¶ 2.

¶ 37   In reversing Patel’s conviction, the Fourth District Appellate Court noted that the

transaction was not like a street-corner drug deal, where knowledge is easier to establish

considering that the controlled substance is usually not professionally packaged and is sold in a

secretive manner for cash.   But in Patel’s case, he was a clerk at a convenience store selling

hundreds of legal products. Patel scanned the item, and a receipt documented the purchase of

“ ‘incense.’ ” Patel, 2013 IL App (4th) 121111, ¶ 13.    The court surmised that it is much more

difficult to establish that an employee selling a professionally packaged product from a

convenience store, as compared to a street dealer, knew that a product stocked by the store owner

contained a controlled substance. Id. ¶ 65.

¶ 38   Defendant asserts that Chatha closely mirrors his case.   The issue in Chatha, as here, was

whether the evidence was sufficient to prove that the defendant knew that a product, Bulldog

Potpourri, he possessed and sold at his store contained a controlled substance.   Chatha, 2015 IL

App (4th) 130652, ¶ 42.

¶ 39   The court reversed Chatha’s conviction, finding that the uncontroverted evidence showed

that Chatha willingly complied with applicable laws before he started selling Bulldog Potpourri,

which demonstrated his concern about the legality of the products offered in his stores.      The



                                              - 14 ­
2018 IL App (2d) 170150


court noted that Chatha had complied with a city ordinance that prohibited the sale of “incense”

and “potpourri” at his other store and that he investigated Bulldog Potpourri to alleviate his

concern before offering the product to the public. Id. ¶ 54.     The court also found that Chatha’s

demeanor demonstrated his willingness to comply with police requests during their investigation.

The court stated:

               “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 beyond a reasonable doubt that

        defendant knew Bulldog Potpourri contained AM-2201.” Id. ¶ 55.

¶ 40    The court rejected the notion that Chatha’s admission that he knew that customers smoked

the product put him on notice that the product was presumptively illegal.      During his interview,

Chatha stated that his knowledge regarding the product’s use prompted his store policy banning

the sale to minors.   The court similarly rejected the State’s assertion that the fact that Chatha did

not display Bulldog Potpourri was circumstantial evidence of his knowledge that the product

contained a controlled substance.     The court found that Chatha’s actions and demeanor before

and after the police began their investigation militated against the State’s claim.     Id. ¶¶ 52-53.

Moreover, although a trier of fact might have questioned the effectiveness of Chatha’s

investigation of the product’s legality, the court noted that, absent scientific testing, Chatha could

not conclusively determine whether the otherwise legal product contained a controlled substance.

Id. ¶ 54.



                                               - 15 ­
2018 IL App (2d) 170150


¶ 41      In contrast to Chatha and Patel, the present case is more like a “street-corner drug deal,”

where the sales took place in a back room and the products were kept outside of public view, were

never scanned, and were sold on an all-cash basis, without receipts.        Defendant kept the cash

from the sales of the illegal substances separate from his other store transactions by placing that

cash in his right pocket. Defendant also had more knowledge about the products than Chatha.

Defendant knew that the products were illegal under federal law and knew the effect the

substances had on the central nervous system.            Whereas Chatha refused to sell the product

illegally at his other store, defendant told Torkleson that he would sell him cannabis.    We agree

with the trial court that the rational inference to be drawn from all of the evidence was that

defendant knew that he possessed and sold products containing illegal substances.      Accordingly,

a rational fact finder could determine that the State met its burden of proof concerning knowledge.

¶ 42                                     III. CONCLUSION

¶ 43      For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for

this appeal.    55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 44      Affirmed.




                                                - 16 ­
