Ill. Pattern Jury Instr. (Criminal) 17.45

A person

commits the offense of controlled substances trafficking when he knowingly [

(brings) (causes to be brought)] into this State a [(controlled) (counterfeit)] substance [(for the

purpose of [(the manufacture of) (the delivery of)]) (with the intent to [(manufacture) (deliver)

])] a [(controlled) (counterfeit)] substance in this or any other state or country [and the

substance containing the [(controlled) (counterfeit)] substance weighed [(____ grams or more)

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

Committ

ee Note

720 ILCS

570/401.1(a) and (b) (West, 1999) (formerly Ill.Rev.Stat. ch. 561/2, §1401.1(a)

and (b)), added by P.A. 85- 743, effective September 22, 1987, and amended by P.A. 85-1294,

effective January 1, 1989, and P.A. 86-1391, effective January 1, 1991.

Give I

nstruction 17.46.

If the u

se of a cellular radio telecommunications device in trafficking is alleged, do not

use this instruction; instead, use Instructions 17.47 and 17.48.

When 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 three propositions in

Instruction 17.46.

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 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 possession 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.

See Com

mittee Note to Instruction 17.17, regarding inconsistent amendments to Section

570/410, effective January 1, 1991.

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

how the j

ury should be instructed when the weight of the substance is in dispute.

See Com

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

If other

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

720.

Use appl

icable bracketed material.

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