People v. Feld

PRESIDING JUSTICE INGLIS, concurring in part and dissenting in part:

The majority opinion reverses defendants’ convictions on the ground that the State did not prove beyond a reasonable doubt that defendants possessed the requisite state of mind to "market for use” drug paraphernalia. Although I concur with the holding as to all other issues, I respectfully dissent regarding the finding that the State did not prove that defendants possessed the requisite state of mind. The State, via circumstantial evidence, proved that defendants possessed the requisite mental intent to "market” drug paraphernalia.

The proper standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Sutherland (1992), 155 Ill. 2d 1, 17 .) This standard applies to bench trials. People v. Marshall (1993), 256 Ill. App. 3d 310, 322 .

The relevant statute defines "[djrug paraphernalia” as "all equipment, products and materials of any kind which are peculiar to and marketed for use in planting, *** containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance.” (720 ILCS 600/2(d) (West 1992).) The statute requires the State to prove two elements in order to establish the requisite scienter: specifically, that the items at issue are "peculiar to” drug use, and that defendants "marketed” those items as drug paraphernalia. (720 ILCS 600/2(d) (West 1992).) Defendants do not argue that the "Dugout Boxes” were not "peculiar to” drug use. Defendants and the majority focus on the fact the State did not present sufficient evidence to prove that defendants possessed the requisite intent to market the "Dugout Boxes” as drug paraphernalia.

Intent is most commonly proved through the use of circumstantial evidence, and a defendant’s intent may be inferred from the surrounding facts and circumstances, including his words and actions. (People v. Steffens (1985), 131 Ill. App. 3d 141, 148-49 .) If the defendant is aware of the nature of the items sold, he possesses the requisite mental state. (People v. Crow’s Nest, Inc. (1985), 137 Ill. App. 3d 461, 465 .) There is no requirement in the statute that the defendant be the party who actually sells the final product.

The State presented evidence that defendants knew their "Dugout Boxes” were used to smoke "other products.” The State also produced evidence that the "Dugout Boxes” were advertised in a medium which had as its focus the marketing of drug paraphernalia. It was the role of the trier of fact to judge the credibility of the witnesses presented and evaluate the evidence presented by both parties. The State produced sufficient evidence whereby a trier of fact could conclude that defendants were aware of the ultimate use of the "Dugout Boxes.”

The majority appear to require the State to prove an overt action on the part of defendants to actually go out and market the drug paraphernalia. I disagree and maintain that the statute encompasses all persons who actively engage in the manufacture of items which are to be utilized as drug paraphernalia, coupled with knowledge of the nature of those products.

Defendants rely on two United States Supreme Court cases in support of their argument. The Supreme Court has interpreted the phrase "marketed for use” to describe a retailer’s intentional display and marketing of merchandise. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 502 , 71 L. Ed. 2d 362, 374 , 102 S. Ct. 1186, 1195 .) The Court, however, was not interpreting the statute at issue in the case at bar, but rather a village ordinance. The Hoffman Estates ordinance required a party selling drug paraphernalia to obtain a license. (Hoffman Estates, 455 U.S. at 491 , 71 L. Ed. 2d at 367 , 102 S. Ct. at 1189 .) The Drug Paraphernalia Control Act (720 ILCS 600/1 et seq. (West 1992)) is much broader than the Hoffman Estates ordinance and, therefore, does not preclude defendants from falling within its purview.

Another recent Supreme Court case interpreted the language "marketed for use” in conjunction with the language contained in the Mail Order Drug Paraphernalia Control Act ( 21 U.S.C. § 863 (d) (1988 & Supp. IV 1992)). (Posters 'N’ Things, Ltd. v. United States (1994), 511 U.S. 513 , 128 L. Ed. 2d 539 , 114 S. Ct. 1747 .) The Court concluded that the language in the Federal statute was broader than the language contained in Hoffman Estate’s ordinance and would allow a conviction of a defendant based on the intent of other parties. Posters, 511 U.S. at 519 , 128 L. Ed. 2d at 548 , 114 S. Ct. at 1751 .

Nothing, however, in either of these Supreme Court cases or in the majority opinion precludes the conviction of parties who do not directly sell "drug paraphernalia,” so long as they had knowledge that the items they were producing would end up being utilized as "drug paraphernalia.” Furthermore, the State did not attempt to convict defendants based on the intent of other parties, but based upon defendants’ own knowledge as to the nature of the products they manufactured.

When all inferences are viewed in a light most favorable to the prosecution, a rational finder of fact could conclude defendants possessed the requisite mental state. Therefore, defendants’ convictions should not be reversed, and I respectfully dissent.