Ill. Pattern Jury Instr. (Criminal) 17.21

Factors Based Upon Age

A person c

ommits the offense of delivery of a [(controlled) (counterfeit) (look- alike)]

substance to a person under 18 years of age when he, being 18 years of age or older, knowingly

delivers a [(substance containing a controlled) (substance containing a counterfeit) (look- alike)]

substance to a person under 18 years of age [and the substance containing the [(controlled)

(counterfeit)] substance weighs [(____ grams or more) (____ grams or more but less than ____

grams)]].

Committ

ee Note

720 ILCS

570/407(a) (West, 1999) (formerly Ill.Rev.Stat. ch. 561/2, §1407(a)).

Give Ins

truction 17.22.

When deli

very of more than the statutory minimum of a substance is charged, weight

then determines the penalty for the offense and is an essential element to be decided by the jury.

See People v. Kadlec, 21 Ill.App.3d 289, 313 N.E.2d 522 (3d Dist.1974); People v. Hill, 169

Ill.App.3d 901, 524 N.E.2d 604, 120 Ill.Dec. 574 (1st Dist.1988). When the jury must decide this

element, use the final bracketed material in this instruction and use all four propositions in

Instruction 17.22.

Particul

ar care must be taken when disputes about weight support lesser included

offenses. See example in the Committee Note to Instruction 17.01 and People v. Smith, 67

Ill.App.3d 952, 385 N.E.2d 707, 24 Ill.Dec. 566 (5th Dist.1978).

When the pr

osecution must prove the quantity of the substance as an element of the

offense, it need not prove that the defendant knew the quantity was of any specific amount. See

People v. Cortez, 77 Ill.App.3d 448, 395 N.E.2d 1177, 32 Ill.Dec. 796 (1st Dist.1979); People v.

Ziehm, 120 Ill.App.3d 777, 458 N.E.2d 588, 76 Ill.Dec. 188 (2d Dist.1983).

Although t

he quantity may not always be required in the verdict forms, People v. Roy,

172 Ill.App.3d 16, 526 N.E.2d 204, 122 Ill.Dec. 64 (4th Dist.1988), to insure clarity the

Committee recommends that each verdict form contain the same quantity language used in the

definitional and issues instructions supporting the verdict.

It should not

be necessary in most delivery cases to add the phrase “... but less than ____

grams.” Only when a lesser included offense instruction based upon weight is given are the

statutory upper limits provided in Section 570/401 an issue in the case.

Although S

ection 570/407(a) incorporates by reference violations of Sections 570/401

and 570/404(b), by it s own specific language it is limited to acts of delivery and not other acts

proscribed by those predicate Sections.

The Co

mmittee intentionally did not include the term “look -alike” in the bracketed

material after the word “age” because weight is never an issue in look-alike cases.

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See Committee Note to Instruction 17.19, regarding inconsistent amendments to the

predic

ate offense, Section 570/401.

See Com

mittee Note to Instruction 17.01, concerning verdict forms and for directions on

how the jury should be instructed when the weight of the substance is an issue.

See Com

mittee Note to Instruction 17.05A if delivery is an issue.

See I

nstructions 17.33A and 17.33B, defining the terms “counterfeit substance” and

“look-alike substance” respectively.

If other

terms used in this instruction need to be defined, see the definitions contained in

Chapter 720.

Use appl

icable bracketed material.

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