July 18, 2001

Following a bench trial, defendant, Dean E. Cochran, was foundguilty of possession with intent to deliver a look-alike substance(720 ILCS 570/404(b) (West 2000)). Because the offense wascommitted within 1,000 feet of a school, it was elevated from aClass 3 felony to a Class 2 felony (720 ILCS 570/407(b)(3) (West2000)) and was nonprobationable (730 ILCS 5/5--5--3(c)(2)(D) (West2000)). Defendant appeals and contends that he is entitled to thereversal of his conviction because (1) the statutes creating andpenalizing the offense, as applied to him, violated his right todue process, and (2) the evidence was insufficient to prove himguilty beyond a reasonable doubt. We affirm.

At trial, Douglas Palmer, a Rockford police officer assignedto the tactical unit, testified that on April 23, 1999, at about10:50 p.m., he was on duty and was engaged in an undercover drugoperation in front of 524 Gregory Street in Rockford. OfficerPalmer observed defendant whistling and attempting to flag downpassing vehicles.

Officer Palmer and two other police officers, who were also inplainclothes, walked toward defendant. According to OfficerPalmer, as the officers approached, defendant asked Officer Palmerif he was "straight." Based on his training and his experience inover 100 drug investigations, Officer Palmer understood defendant'squestion to mean that defendant wanted to sell him drugs. OfficerPalmer responded to defendant's question by stating "Sure."

Officer Palmer further testified that defendant then spit aplastic bag out of his mouth onto the street, pointed to theplastic bag with his toe, and asked him to drop some money on theground. Thereafter, Officer Palmer arrested defendant.

After arresting defendant, Officer Palmer picked up theplastic bag. The plastic bag contained an off-white, chalky, rock-like substance. Officer Palmer concluded that the packaging of theitem was very similar to the usual packaging of cocaine for sale onthe street and that the substance in the bag was very similar tocrack cocaine.

Officer Palmer was aware that he could not establish that thesubstance in the bag was cocaine without testing the substance. Officer Palmer recalled that, after defendant's arrest, defendantstated that the substance was "nothing" and was "garbage." OfficerPalmer subsequently gave the plastic bag containing the substanceto a fellow officer, Officer Shimaitis.

On cross-examination, Officer Palmer acknowledged that he didnot observe defendant conduct any transactions other than spittingout the plastic bag; that defendant never asked for a specificamount of money; and that he, Officer Palmer, never gave defendantany money. The only item, other than the plastic bag, that OfficerPalmer recovered from defendant after defendant's arrest was acrack pipe.

Brian Shimaitis, a Rockford police officer assigned to thetactical unit, testified that he was on duty on April 23, 1999, atabout 11 p.m. and was involved in an undercover drug operation withOfficer Palmer. Officer Shimaitis recalled that Officer Palmergave him a silver metal tube and a plastic bag that contained anoff-white substance. Officer Shimaitis later tagged the plasticbag containing the substance into evidence and identified it incourt as People's exhibit No. 2. Based on his experience in morethan 50 drug investigations, Officer Shimaitis concluded that thesubstance in the plastic bag had the appearance of crack cocaineand was packaged in the way that crack cocaine was usually packagedfor sale on the street.

The State presented evidence showing that the police encounterwith defendant occurred within 1,000 feet of the real property ofa Rockford public school. Defendant does not dispute thisevidence. The State also presented a lab report showing that thesubstance in the plastic bag that was introduced into evidence asPeople's exhibit No. 2 was not found to be a controlled substance. Defendant stipulated to the lab report.

Defendant testified that on April 23, 1999, at about 10 p.m.,he was trying to purchase crack cocaine to smoke. Defendant hadalready smoked "quite a bit" of crack cocaine earlier that day. Defendant recalled encountering a man named "E"; giving E somemoney; getting a bag from E; noticing E drive off; biting the bagat the bottom; and tasting the contents of the bag. Defendanttestified that the contents "tasted like--I called it rice, butsome kind of grain. I didn't know what it was."

Defendant further testified that after he determined that the bag did not contain crack cocaine he began to chase E and saw E'svehicle make a turn. Defendant then moved to Gregory Street, wherehe was standing when he saw E drive by. Defendant began holleringand screaming in an effort to get E to stop so that defendant couldeither get his money back from E or get some real drugs for hismoney. E did not stop.

Defendant further testified that somebody then walked up tohim and asked him if he was "straight." Defendant understood thisto mean that the person wanted to either buy or sell drugs. Defendant decided that he "wasn't gonna deal with this guy." According to defendant, when the man walked up to him, he washolding the bag containing the substance that he had purchased fromE in his hand. After being asked if he was "straight," defendantthrew the bag on the ground. Defendant denied that the bag was inhis mouth. Defendant testified that he threw the bag on the groundbecause it was no use to him and because he had been startled bythe person who walked up to him. Defendant testified that he knewthat the man was a police officer because he saw the man's badgeand side arm.

Defendant further testified that the police officer arrestedhim after an argument developed. According to defendant, theargument developed because defendant stated that the man was apolice officer even though the man denied it, and because defendanthad thrown the bag where the police could not see it. Defendanttheorized that the police arrested him because he interfered withsome operation that they were trying to run.

Following defendant's testimony, the State recalled OfficerPalmer as a rebuttal witness. Officer Palmer testified that whenhe recovered the bag that defendant spit out it was in perfectcondition. According to Officer Palmer, there were no holes in thebag until he made a hole to field test the contents of the bag. Officer Palmer also testified that his badge was clipped in hisleft rear pocket and his side arm was tucked into the small of hisback under his belt. Officer Palmer wore a large sweatshirt thatcovered his badge and gun. Officer Palmer testified that while hewas conversing with defendant he never turned his back todefendant.

The State also called as a rebuttal witness Bruce Scott, aRockford police sergeant who supervised the tactical unit. Sergeant Scott testified that he was one of the three plainclothespolice officers who encountered defendant on Gregory Street atabout 10:50 p.m. on April 23, 1999. According to Scott, as thethree officers approached defendant, none of the officersidentified himself as a police officer; defendant asked OfficerPalmer if he was "straight"; defendant spit an object that appearedto be narcotics out of his mouth onto the ground; and defendantthen pointed to the object with his toe and said, "There it is. There it is. Put some money down."

The trial court found defendant guilty of possession withintent to deliver a look-alike substance within 1,000 feet of aschool. The trial court commented that it "[m]ay very well havebeen that Mr. Cochran received a bad batch from the seller; butthen the evidence is clear that he attempted to sell this, if notto passersby, certainly to Officer Palmer."

After denying defendant's posttrial motion, the trial courtsentenced defendant to six years' incarceration plus various fines,fees, and costs. The trial court later denied defendant's motionto reconsider the sentence. Defendant's timely notice of appealfollowed.

On appeal, defendant first contends that he is entitled to areversal of his conviction and sentence because the statute thatcreated the offense of possession with intent to deliver a look-alike substance and the statutes that established the penalties forthe offense, as applied to him, violated the due process clause ofthe Illinois Constitution (Ill. Const 1970, art. I,