                             2013 IL App (2d) 120088
                                  No. 2-12-0088
                         Opinion filed September 25, 2013
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kendall County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-140
                                       )
JASON E. KIDD,                         ) Honorable
                                       ) John A. Barsanti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Schostok and Spence concurred in the judgment and opinion.

                                             OPINION

¶1     Defendant, Jason E. Kidd, was indicted on one count of drug-induced homicide (720 ILCS

5/9-3.3(a) (West 2010)) “by knowingly delivering cocaine, a controlled substance to Merrideth [sic]

M. Castro and [she] thereafter inhaled or ingested a portion of the cocaine into her body and said

inhalation or ingestion of cocaine caused [her] death.” Following a jury trial, defendant was

convicted and sentenced to a term of 10 years’ imprisonment and 3 years’ mandatory supervised

release. He timely appealed.

¶2     Defendant contends that the trial court erred in refusing his tendered jury instructions and that

he received ineffective assistance of counsel. We determine that defendant’s first issue lacks merit;
2013 IL App (2d) 120088


however, his second issue is meritorious and, therefore, we reverse defendant’s conviction and

remand for a new trial.

¶3                                       I. BACKGROUND

¶4       On March 7, 2010, defendant found his girlfriend, Meredith Castro, facedown on an upstairs

bedroom floor. He rolled her over and immediately realized that she was dead. He called the police.

¶5       Alex Silva, an Oswego fire department paramedic, testified that he and his partner were

dispatched to a townhouse in Oswego in response to a call of an unconscious or unresponsive person.

Upon arriving at the townhouse, Silva and his partner were met by defendant, who said that Castro

was upstairs and was not breathing. Silva and his partner found her lying faceup on the floor,

unresponsive, with no pulse, and not breathing. After confirming that she had no heart activity,

respiration, or pulse, they told defendant that Castro was deceased. Silva testified that defendant was

upset.

¶6       Defendant told Silva that he and Castro had used cocaine on the previous day. He also told

Silva that Castro had chronic obstructive pulmonary disease (COPD), congestive heart failure, and

other cardiac issues, and that she was took insulin and other medications. Silva then contacted a

nearby hospital and received a “pronouncement” of death, which is different from a time of death.

Silva and his partner alerted the coroner’s office and then left the scene.

¶7       Officer Matthew Unger, of the Oswego police department, testified that he and his partner

were called to a townhouse in the early morning of March 7 to assist paramedics with a “possibly

deceased person.” When he arrived between 6:30 and 7 a.m., he went upstairs and saw Castro lying

faceup on a bedroom floor. She was not breathing and had no pulse or heart activity. He stated that

“[w]hen we were assessing her, we noticed that she was stiff.” He then went downstairs and spoke



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with defendant in the living room. Defendant stated that he had lived with Castro in the townhouse

for two years. The previous day, Castro was upset because her cat had died. Defendant told Unger

that in the evening he and Castro had consumed “powder cocaine” and marijuana, then watched a

movie together. Castro went upstairs to bed between 10 and 11 p.m. Defendant stayed downstairs

and slept on the couch. Around 6:30 a.m. he went upstairs and found Castro on the floor in the

bedroom. Defendant told Unger that he vomited after he found Castro, and then he called the police.

Defendant told Unger that Castro had congestive “heart failure, COPD, high blood pressure, and

diabetes.”

¶8     Detective Rob Sherwood, of the Oswego police department, testified that he was the “on-call

investigator” on March 7, 2010, and responded to a call for a “suspicious death investigation” at a

residence. He arrived around 8 a.m. The scene had already been processed, so he made

arrangements to interview defendant at the police station. Defendant was not under arrest. The

interview was recorded and a video recording and a transcript were admitted into evidence and

published to the jury.

¶9     During the interview, defendant told Sherwood that Castro wanted to get cocaine because

she was upset that her cat had died. Defendant admitted to smoking marijuana almost daily, and he

stated that Castro knew about his drug use. Defendant stated that Castro had used cocaine frequently

in the past but had not used it for about a year. He stated that “last night she said, ‘Go get me a bag

of cocaine.’ ” He then stated that he “went to the bar, got us a bag, we went home. We did it. And

we smoked pot.”




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¶ 10   On cross-examination, Sherwood stated that he did not ask specific questions about the drug

transaction at the bar, such as whether anyone was with him or where the money for the drug

purchase came from.

¶ 11   Officer Chad Vargas, an investigator with the Oswego police department, testified that on

May 9, 2011, he and Sherwood arrested defendant for drug-induced homicide. After giving

defendant his Miranda warnings, they interviewed him at the police station. A transcript of the

interview was admitted into evidence and published to the jury. Defendant stated that, after he

returned from disposing of Castro’s deceased cat, she said “let’s get a bag [of cocaine].” She went

to an ATM for cash. At first defendant stated that they could have gone to one of three bars, or they

could have had the cocaine delivered. Vargas reminded him that in the previous interview in March

2010 defendant stated that they went to one bar and then returned home and snorted the cocaine.

When asked if the purchase was at one particular bar, defendant responded, “uh-huh.” Defendant

also told Vargas that Castro possessed morphine, Xanax, and Vicodin and that she sometimes

smoked “crack” cocaine.

¶ 12   Dr. John Denton, a forensic pathologist, performed an autopsy on Castro on March 9, 2010.

Castro was 5 feet 2 inches tall and weighed 260 pounds. He testified that the settling of her blood

indicated that she had been placed on her back “soon after death.” Castro’s lungs were “heavy or

congested” with blood but she did not have blood clots, pneumonia, asthma, COPD, emphysema,

or cancer. Her heart was enlarged and her main arteries were partially (“moderately”) blocked. Her

liver was fatty and enlarged, which Dr. Denton opined was “related to her obesity and diabetes.” Her

brain was swollen. The toxicology report noted evidence of morphine consumption, at 290

nanograms per milliliter. According to Dr. Denton, this is an elevated level. He stated that over 100



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nanograms is “a potential cause of death.” Dr. Denton testified that, while cocaine is a stimulant,

morphine is a narcotic that, as a sedative, leads to respiratory depression. He opined that hypoxia

(deficiency of oxygen reaching body tissues) caused by “cocaine and opiate intoxication” was the

cause of death. There was no way to determine which drug was ingested first or whether they were

ingested at the same time.

¶ 13   Dr. James O’Donnell, an associate professor of pharmacology at Rush Medical College,

testified for the defense as an expert on pharmacy and pharmacology. O’Donnell’s training included

how to study and interpret toxicology results, and he had spent 40 years researching the effects and

toxicity of morphine.

¶ 14   Dr. O’Donnell opined that the ratio of cocaine to its metabolite, benzoylecgonine, in Castro’s

blood was “extremely high,” indicating that most of the cocaine in her system had been metabolized.

This in turn indicated “a use distant from the time of death.” The level of morphine in her blood was

a “highly toxic level” that was “lethal.” O’Donnell further opined that Castro consumed the

morphine sometime after defendant had gone to bed. His opinion was based on the absorption rate

of morphine and the level of morphine in Castro’s blood as indicated in the toxicology report.

¶ 15   The toxicology report also indicated the presence of the anti-anxiety drug Xanax at a

therapeutic level, i.e., “a level that is expected from taking [it] at prescribed doses.” O’Donnell

testified that, if Xanax and morphine are combined, “the effect of the Xanax enhances the toxicity

of the morphine.” Alcohol would have the same depressant effect.

¶ 16   Defendant testified on his own behalf. He stated that on the afternoon of March 6, 2010,

Castro suggested that they get some cocaine. He and Castro were well known at several bars in the

area, and he knew that they would be able to buy cocaine at one of them. They stopped at an ATM



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where Castro withdrew $120 from her bank account and they then went to a bar where she handed

defendant $20 to buy a shot of whiskey for her and a beer for him. He went to the back room and

played pool; he did not know if she drank her shot. He stated that Castro went outside and then

returned and said, “Let’s go.” They were at the bar for about 10 minutes. When they got home, she

told defendant to roll a “blunt” and then took a bag of cocaine from her bra. She told him it was

slightly less than an “eightball” (one-eighth of an ounce). They snorted the cocaine and smoked

cannabis over the next three hours. They did not drink any alcohol. During the evening they played

video games and watched movies. Between 10:30 and 11:30 p.m., defendant went downstairs and

slept on the couch. Castro was awake and alert, and defendant did not notice any unusual behavior.

¶ 17    Between 5:30 and 6 a.m., defendant awoke and walked the dog, then called upstairs to

Castro. She did not respond, so he went upstairs and found her lying facedown on the floor. He

rolled her over, immediately realized that she was deceased, and vomited. He then called the police.

Within minutes the paramedics arrived, and then the police.

¶ 18    Defendant testified that he vaguely remembered talking to Unger. He felt as though his

“whole world had fallen apart”; it was traumatic and he was crying. He completed a written

statement and then went to the Oswego police department. Sherwood interviewed him at the police

station. He was confused by Sherwood’s questions.

¶ 19    In May 2011, 14 months later, Sherwood and Vargas arrested defendant and told him that

he was being charged with drug-induced homicide. They did not explain the charge. Vargas

interviewed him and asked him to summarize what he had told Sherwood in March 2010. Defendant

did so as well as he could. He testified that his mind was clearer at the second interview, but he still

had trouble recalling some of the events leading up to Castro’s death.



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¶ 20   Following closing arguments, the trial court instructed the jury on the applicable law. Over

defendant’s objection, the trial court instructed the jury with Illinois Pattern Jury Instructions,

Criminal, No. 7.15 (4th ed. 2000) (hereinafter, IPI Criminal 4th), as follows:

                 “In order for you to find that the acts of the defendant or one for whose conduct he

       is legally responsible caused the death of Meredith Castro, the State must prove beyond a

       reasonable doubt that defendant’s acts were a contributing cause of the death and that the

       death did not result from a cause unconnected with the defendant. However it is not

       necessary that you find the acts of the defendant were the sole and immediate cause of

       death.”

¶ 21   Defendant offered a non-IPI jury instruction that read as follows:

       “The term ‘proximate cause’ means any cause which, in the natural or probable sequence,

       produced the death. It need not be the only cause, nor the last or nearest cause. It is

       sufficient if it concurs with some other cause acting at the same time, which in combination

       with it causes the death.”

In refusing the tendered instruction, the trial court remarked that IPI Criminal 4th No. 7.15

“adequately describe[d] the proximate cause responsibility the State has and adequately describe[d]

the intervening and superseding events and adequately describe[d] the foreseeability.”

¶ 22   A second proposed instruction, which was also refused, read as follows:

       “Proximate cause is a cause that directly produces an event and without which the event

       would not have occurred. Proximate cause is established if Meredith Castro’s death was

       foreseeable as the type of harm that a reasonable person would expect to see as the result of

       Defendant’s conduct.”



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2013 IL App (2d) 120088


¶ 23   The jury was also instructed with IPI Criminal 4th No. 7.27, which read, “[a] person commits

the offense of drug induced homicide when he knowingly delivers to another a substance containing

Cocaine, a controlled substance, *** and any person dies as a result of the ingestion of any amount

of that controlled substance.”

¶ 24   Also over defendant’s objection, the trial court instructed the jury on accountability with IPI

Criminal 4th No. 5.03, as follows:

               “A person is legally responsible for the conduct of another person when, either before

       or during the commission of an offense, and with the intent to promote or facilitate the

       commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid

       the other person in the planning or commission of an offense.

               The word ‘conduct’ includes any criminal act done in furtherance of the planned and

       intended act.”

¶ 25   The trial court also instructed the jury with only the third paragraph of IPI Criminal 4th No.

17.05A. No objection was made by the defense regarding omitting the first two paragraphs, nor did

defense counsel submit this instruction in its entirety. The whole instruction reads:

               “The word ‘deliver’ means to transfer possession or to attempt to transfer possession.

               The word ‘deliver’ includes a constructive transfer of possession which occurs

       without an actual physical transfer. When the conduct or declarations of the person who has

       the right to exercise control over a thing is such as to effectively relinquish the right of

       control to another person, so that the other person is then in constructive possession, there

       has been a delivery.




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                A delivery may occur with or without the transfer or exchange of money, or with or

        without the transfer or exchange of other consideration.” IPI Criminal 4th No. 17.05A.

¶ 26    During deliberations, the jury sent a note to the trial court which read: “Request cause of

death report from Dr. Denton.” In response, the trial court sent “People’s Exhibit #7,” which was

the autopsy report and the toxicology report. The cause of death was listed as “cocaine and opiate

intoxication.” Thereafter, the jury returned a guilty verdict. Defendant timely appealed.

¶ 27                                        II. ANALYSIS

¶ 28                                   A. Tendered Instructions

¶ 29    Defendant first argues that “the conflicting evidence regarding the cause of Castro’s death

made it imperative for the trial court to give the ‘proximate cause’ instructions tendered by the

defense.” Illinois Supreme Court Rule 451 (eff. July 1, 2006) states:

                “(a) Use of IPI Criminal Instructions; Requirements of Other Instructions. Whenever

        Illinois Pattern Jury Instructions, Criminal, contains an instruction applicable in a criminal

        case, giving due consideration to the facts and the governing law, and the court determines

        that the jury should be instructed on the subject, the IPI Criminal instruction shall be used,

        unless the court determines that it does not accurately state the law.”

Our review is de novo “because the issue raised concerns whether the jury was provided with the

correct legal principles that apply in this case, thereby allowing the jury to reach a proper result based

on the applicable law and the evidence.” People v. Walker, 2012 IL App (2d) 110288, ¶ 18.

¶ 30    As a preface to our discussion of the jury-instruction issue, we point out the following

legislative history of the language regarding causation in the drug-induced homicide statute. In 2005,




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our legislature attempted to make the statute’s definition of cause consistent with that in other

homicide statutes. Prior to January 1, 2006, the statute read:

               “§ 9-3.3. Drug-induced homicide.

               (a) A person who violates Section 401 of the Illinois Controlled Substances Act by

       unlawfully delivering a controlled substance to another, and any person dies as a result of

       the injection, inhalation or ingestion of any amount of that controlled substance, commits the

       offense of drug-induced homicide.” (Emphasis added.) 720 ILCS 5/9-3.3(a) (West 2004).

Effective January 1, 2006, the language of the statute was amended as follows:

               “§ 9-3.3. Drug-induced homicide.

               (a) A person who violates Section 401 of the Illinois Controlled Substances Act ***

by unlawfully delivering a controlled substance to another, and any person’s death is caused by the

injection, inhalation or ingestion of any amount of that controlled substance, commits the offense

of drug-induced homicide.” (Emphasis added.) 720 ILCS 5/9-3.3(a) (West 2010)

¶ 31   In the discussion on the House floor regarding the proposed change, Representative Pihos

stated that the change was:

        “cleanup language. It provides that a person who unlawfully delivers a controlled substance

       to another and any person’s death is caused by the injection, inhalation, or ingestion of any

       amount of that controlled substance, commits the offense of drug-induced homicide. The

       reason for the change is to provide clarity in the law relating to drug-induced homicide. The

       causation language is the same as the other homicide language in the law.” (Emphasis

       added.) 94th Ill. Gen. Assem., House Proceedings, April 5, 2005, at 85 (statements of

       Representative Pihos).



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In the Illinois Senate, Senator Sandoval stated: “House Bill 1109 amends the drug-induced homicide

Section of the Criminal Code to extend criminal liability for any deaths caused as a result of

unlawful delivery of a controlled substance by injection, inhalation or [ingestion].” (Emphasis

added.) 94th Ill. Gen. Assem., Senate Proceedings, May 18, 2005, at 39 (statements of Senator

Sandoval). This abbreviated discussion indicates that the legislature intended to change the language

so that it mirrored the language of other homicide statutes, which refer to “acts which cause the

death” of an individual, whether such act is intentional (720 ILCS 5/9-1 (West 2010) (first degree

murder)), negligent (720 ILCS 5/9-2 (West 2010) (second degree murder)), or reckless (720 ILCS

5/9-3 (West 2010) (involuntary manslaughter and reckless homicide)). There does not appear to

have been an intent to make a significant change in the underlying meaning of the concept of

causation.

¶ 32    We turn to the issue raised on appeal. Defendant offered a non-IPI jury instruction that

defined proximate cause as a cause directly producing an event and without which the event would

not have occurred. A second instruction offered by defendant stated further that proximate cause

was established if Castro’s death was foreseeable as the type of harm that a reasonable person would

expect to result from defendant’s conduct. Defendant argues that he could not have anticipated that

the sequence of events would result in Castro’s death. However, as the State points out,

“foreseeability” does not require that the person charged with the crime foresee either the extent of

the injury (in this case, death) or the exact way in which it occurs (in this case, the ingestion of both

cocaine and morphine). See People v. Cook, 2011 IL App (4th) 090875, ¶ 18 (“Although the

foreseeability of an injury will establish [proximate] cause, the extent of the injury or the exact way

in which it occurs need not be foreseeable.” (Internal quotation marks omitted.)).



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¶ 33    The drug-induced-homicide statute incorporates the “knowing” mental state element from

section 401 of the Controlled Substances Act. People v. Boand, 362 Ill. App. 3d 106, 142 (2005);

see 720 ILCS 570/401(a) (West 2010). Explaining the mental state of “knowingly,” the Third

District Appellate Court has stated that the defendant “just needs to make a knowing delivery of a

controlled substance, and if any person then dies as a result of taking that substance, the defendant

is responsible for that person’s death.” People v. Faircloth, 234 Ill. App. 3d 386, 391 (1992). The

Boand court determined:

                “A person commits drug-induced homicide if he ‘violates Section 401 of the Illinois

        Controlled Substances Act [(the Act) (720 ILCS 570/401 (West 2004))] by unlawfully

        delivering a controlled substance to another, and any person dies as a result of the injection,

        inhalation or ingestion of any amount of that controlled substance.’ 720 ILCS 5/9-3.3(a)

        (West 2004).” Boand, 362 Ill. App. 3d at 139.

¶ 34    Defendant argues that it was not subjectively foreseeable that Castro would die, because he

could not have anticipated Castro’s additional ingestion of morphine. The State responds that

defendant’s knowledge that Castro possessed morphine made it subjectively foreseeable that she

might take morphine that night. However, under the proximate-cause theory of criminal liability,

liability attaches for any death proximately resulting from the unlawful activity. Id. at 142. We

agree with the State that the concept of “proximate cause” was adequately explained by the language

of IPI Criminal 4th 7.15. We are not convinced that the defense instructions would have more fully

informed the jury’s deliberations; in fact, the proffered instructions seem to confuse the concept of

causation with a foreseeable result. Therefore, we conclude that the trial court did not err in refusing

defendant’s tendered instructions on proximate cause.



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¶ 35                              B. Ineffective Assistance of Counsel

¶ 36    Defendant next argues that he was denied the effective assistance of counsel, because defense

counsel failed to offer a jury instruction defining the term “delivery.” Under Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984), a claim of ineffective assistance of counsel can succeed

only if the defendant demonstrates both that: (1) counsel’s performance was objectively

unreasonable; and (2) it is reasonably probable that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. Counsel’s performance is measured by “prevailing

professional norms.” Id. at 688. Further, “a reasonable probability that the result *** would have

been different is a probability sufficient to undermine confidence in the outcome”; in other words,

counsel’s deficient performance must have rendered the outcome of the trial “unreliable or

fundamentally unfair.” (Internal quotation marks omitted.) People v. Manning, 241 Ill. 2d 319,

327-28 (2011).

¶ 37    The committee notes for IPI Criminal No. 7.27 state that if the trial court chooses to define

the term “deliver,” IPI Criminal 4th No. 17.05A should be used. IPI Criminal 4th No. 17.05A, in

its entirety, reads as follows:

                 “The word ‘deliver’ means to transfer possession or to attempt to transfer possession.

                 The word ‘deliver’ includes a constructive transfer of possession which occurs

        without an actual physical transfer. When the conduct or declarations of the person who has

        the right to exercise control over a thing is such as to effectively relinquish the right of

        control to another person, so that the other person is then in constructive possession, there

        has been a delivery.




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                    A delivery may occur with or without the transfer or exchange of money, or with or

          without the transfer or exchange of other consideration.”

¶ 38      Defendant poses the question of what conduct falls within the legal definition of “delivery.”

Here, because there was a question for the fact finder as to who actually “possessed” the cocaine, IPI

Criminal 17.05A should have been given in its entirety. This situation is analogous to that in People

v. Coots, 2012 IL App (2d) 100592 ¶ 41, where “the ultimate issue” was whether any physical

transfer of heroin from the defendant to the deceased was a delivery. In Coots, the defendant

testified that the deceased originated the idea of procuring heroin and paid for it. On the other hand,

the defendant made the calls, located a supplier, and ordered the drugs. They both were present

when the supplier delivered the heroin, but the supplier handed it to the defendant, who put it in her

pocket.

¶ 39      This court noted that Coots was a close and difficult case on the facts and determined that

“[e]ither the existence or the nonexistence of joint possession at a pertinent time could have been

found by a reasonable jury.” (Emphasis in original.) Id. ¶ 42. This court recognized that the jury,

without guidance on the meaning of “delivery” in the drug-induced homicide statute, “might well

have given the term a broader meaning than it deserves to the prejudice of defendant.” Id. ¶ 45.

Therefore, this court agreed with the defendant that her trial counsel’s failure to tender an instruction

that would have limited the definition of “delivery” amounted to ineffective assistance.

¶ 40      Here, the State never alleged that defendant delivered either Xanax or morphine to Castro.

Thus, the linchpin of the State’s case was that Castro’s death directly resulted from defendant’s

“knowingly delivering cocaine” to her.1 The State unpersuasively argues that the evidence showed



          1
              An exact time of death was not established, a factor that could have affected the opinions

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that defendant had exclusive possession of the cocaine until he delivered it to Castro. Defendant’s

statements in the two interviews with the police and in his testimony at trial were fairly consistent

regarding his activities on the afternoon and evening of March 6, 2010. However, a question of fact

for the jury was whether Castro and defendant bought the cocaine together or one or the other

actually purchased and possessed it. If Castro and defendant jointly possessed the cocaine, there was

no delivery. See Coots, 2012 IL App (2d) 100592, ¶ 44. The rule that possession must be exclusive

does not mean that the possession may not be joint; if two persons share immediate and exclusive

control or share the intention and power to exercise control, then each has possession. People v.

Schmalz, 194 Ill. 2d 75, 82 (2000). Where possession has been shown, an inference of guilty

knowledge can be drawn from the surrounding facts and circumstances. Id. The fact of possession

must be shown beyond a reasonable doubt. Id.

¶ 41   As Justice McLaren pointed out in his special concurrence in Coots:

       “[t]he concept of dominion and control relates to the understanding between the parties that

       they are ‘entitled’ to exercise dominion and control. Whether the understanding is based

       upon a joint venture, the contemplation or threat of force, or some other abstruse concept,

       it is not required that legally consistent concepts of dominion and control be the sine qua

       non. See People v. Drake, 288 Ill. App. 3d 963, 969 (1997) (‘Where two or more people

       share immediate and exclusive control or share the intention and power to exercise control,

       there arises a situation of joint possession [Citation.] Even where there is no physical

       possession, constructive possession may exist where there is an intent and capacity to



of experts as to the cause of death because, presumably, a more accurate extrapolation of the blood

levels of lethal drugs in the toxicology report would have been possible.

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       maintain control and dominion over the contraband, and this may be proved by showing that

       the defendant controlled the premises where it was found.’).” Coots, 2012 IL App (2d)

       100592, ¶ 60 (McLaren, J., specially concurring).

¶ 42   We believe that, had the jury been properly instructed, there is a reasonable probability that

it would have returned a not guilty verdict. Under the Strickland test, defendant was prejudiced.

Defense counsel should have proffered the instruction regarding delivery in its entirety, and the trial

court should have instructed the jury accordingly. We determine that the judgment should be

reversed and that defendant should receive a new trial.

¶ 43                                     III. CONCLUSION

¶ 44   For the reasons stated, the judgment of the circuit court of Kendall County is reversed and

the cause remanded for a new trial.




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