Ill. Pattern Jury Instr. (Criminal) 17.63

Location On School Grounds

A person c

ommits the offense of [(manufacture of) (delivery of) (possession with the

intent to manufacture) (possession with the intent to deliver)] cannabis when he knowingly [

(manufactures) (delivers) (possesses with the intent to manufacture) (possesses with the intent to

deliver)] a substance containing cannabis [and the substance containing cannabis weighs [(more

than ____ grams) (more than ____ grams but not more than ____ grams)]] while

[1] in a school.

[or]

[2] on the r

eal property comprising a school.

[or]

[3] on a public

way within 1000 feet of the real property comprising a school.

[or]

[4] on any conv

eyance [(owned) (leased) (contracted)] by a school to transport students

to and from [(school) (a school related activity)].

[or]

[5] on a public w

ay within 1000 feet of any conveyance [(owned) (leased) (contracted)]

by a school to transport students to and from [(school) (a school related activity)].

Committ

ee Note

720 ILCS

550/5.2 (West, 1992) (formerly Ill.Rev.Stat. ch. 561/2, §705.2 (1991)), added

by P.A. 87-544, effective September 17, 1991.

Give I

nstruction 17.64.

Although S

ection 5.2 lists “Delivery of cannabis on school grounds” as a separate

offense, it incorporates and refers to violations of 720 ILCS 550/5 (West, 1992) (formerly

Ill.Rev.Stat. ch. 561/2, §705 (1991)) (manufacture or delivery of cannabis) and merely enhances

the penalties one class higher whenever a violation of Section 5 occurs on school property. Thus,

the Committee thought it better to treat Section 5.2 as an enha ncing factor rather than a separate

offense.

The brac

keted numbers [1] through [5] correspond to the locations indicated in Section

5.2. Select the alternative that corresponds to the location in the charge.

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In many

cases, it will be necessary to give other instructions defining terms used in this

instruction. See Instruction 17.05A, defining the word “deliver;” Instructions 4.15 and 4.16,

defining the word “possession;” and 720 ILCS 550/3(h) (West, 1992) (formerly Ill.Rev.Stat. ch.

561/2, §703(h) (1991)), defining the word “manufacture.”

When manuf

acture or delivery of more than 2.5 grams of a substance containing cannabis

is charged, weight then determines the penalty for the offense and is an essential element to be

decided by the jury. See People v. Hill, 169 Ill.App.3d 901, 524 N.E.2d 604, 120 Ill.Dec. 574

(1st Dist.1988); People v. Kadlec, 21 Ill.App.3d 289, 313 N.E.2d 522 (3d Dist.1974). This is

accomplished by giving the bracketed material in this instruction and all three propositions in

Instruction 17.64.

Parti

cular care must be taken when disputes of 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. Ziehm, 120 Ill.App.3d 777, 458 N.E.2d 588, 76 Ill.Dec. 188 (2d Dist.1983); People v.

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

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), the C ommittee recommends

that, to ensure clarity, 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 manufacture and delivery cases to add the phrase “...

but not more than ____ grams.” Only when a lesser included offense instruction based upon

weight is given are the statutory upper limits provided in 720 ILCS 550/5(b) through (d) an issue

in the case.

See Com

mittee Note to Instruction 17.05A if delivery is in dispute.

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 containing cannabis is in

dispute.

If other

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

Cannabis Control Act, 720 ILCS 550/1 et seq.

Use appl

icable bracketed material.

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