Ill. Pattern Jury Instr. (Criminal) 17.25

Woman Recipient

A person c

ommits the offense of delivery of a controlled substance to a pregnant woman

when he knowingly delivers a substance containing a controlled substance to a woman he knows

to be pregnant [and the substance containing the controlled substance weighs [(____ grams or

more) (____ grams or more but less than ____ grams)]].

Committ

ee Note

720 ILCS 570/

407.2 (West, 1999) (formerly Ill.Rev.Stat. ch. 561/2, §1407.2), added by

P.A. 86-1459, effective January 1, 1991.

Give I

nstruction 17.26.

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

issue, use the bracketed material in this instruction and use all three propositions in Instruction

17.26.

Parti

cular 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 an y 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 570/407.2 incorporates by reference violations of Section 570/401, by

its own specific language it is limited to acts of delivery and not other acts proscribed by the

predicate section, and it is limited to controlled substances and not counterfeit substances.

See Com

mittee Note to Instruction 17.19, regarding inconsistent amendments to the

predicate offense, Section 570/401.

See Com

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

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

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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