No. 3--02--0398

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE BARRY delivered the Opinion of the Court.

Following a bench trial, the defendant was found guilty ofdistributing harmful material to a minor (720 ILCS 5/11--21(a) (West2000)). She was sentenced to serve one year's conditional dischargeand four weekends in the Grundy County jail. On appeal, thedefendant argues that the State failed to prove the elements of theoffense beyond a reasonable doubt. We affirm.

BACKGROUND

The events at issue took place during the evening of December27, 2001, in Coal City. The defendant testified that she had arelationship with Richard Jurzak for about a year. After therelationship ended, the defendant told Richard that she would returnphotographs of the defendant and Richard that were sexual in nature.

Jessica and Breanna Jurzak are Richard's daughters by anotherwoman. On the evening in question, Breanna was 10 years old andJessica was 12 years old. Jessica stated that she and Breanna werein the garage of her father's home when the defendant entered. Thedefendant placed an envelope addressed to Richard on a bench in thegarage. She asked Jessica to give the envelope to Richard. Theenvelope was sealed with tape.

The envelope is included in the record. In the upper leftcorner of the envelope, "J. Jurzak" is written in the return addressposition. Richard's name and address is written in the addressee'sposition. In the upper right corner is an uncancelled first classpostage stamp.

The defendant testified that she wrote "J. Jurzak" in thereturn address position of the envelope. She said that during theirrelationship Richard had referred to her as "Jeannie Jurzak,"although they had not been married. The defendant also knew Jessicato be Richard's minor child. The defendant had placed a letter toRichard and the sexually explicit photographs in the envelope.

The defendant alleged that she did not leave the envelope inJessica's possession. The defendant said that she gave the envelopeto Tammy Reynolds with instructions for Reynolds to give the envelopeto Richard. Reynolds did not testify.

Jessica stated that she opened the envelope because she thoughtthe name "J. Jurzak" in the return address position referred to oneof her relatives. After Jessica opened the envelope, she viewed thesexually explicit photographs. Jessica's mother, Heather Jurzak,contacted the police and the defendant was charged.

After the presentation of the evidence, the trial judge statedthat he believed Jessica's testimony and disbelieved the defendant'stestimony regarding how the envelope came into Jessica's possession. The judge found the defendant guilty and imposed sentence. Thedefendant appealed.

ANALYSIS

The defendant submits that the State failed to prove theelements of the offense beyond a reasonable doubt. Specifically, shecontends that the State failed to prove that she had the requisitemental state to commit the crime.

When analyzing the sufficiency of the evidence, we review theevidence in the light most favorable to the prosecution and considerwhether any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt. People v. Barham,337 Ill. App. 3d 1121, 788 N.E.2d 297 (2003).

The offense of distribution of harmful material to a minorcontains the following elements: "A person who *** knowinglydistributes *** any harmful material to a child, is guilty" of theoffense. 720 ILCS 5/11--21(a) (West 2000). "Distribute means totransfer possession ***." 720 ILCS 5/11--21(b)(3) (West 2000). "Knowingly, as used in this section[,] means having knowledge of thecontents of the subject matter ***." 720 ILCS 5/11--21(b)(4) (West2000). According to this court's research, our analysis of theelements of this offense is a matter of first impression in Illinois.

The cardinal rule of statutory construction is to determine andgive effect to the intent of the legislature. The best indication ofthe legislature's intent is the language of the statute. Suchlanguage should be given its plain or ordinary and popularlyunderstood meaning. People v. Hamalainen, 341 Ill. App. 3d 205, 792N.E.2d 511 (2003). We may not read exceptions, limitations, orconditions into a statute's language. People ex rel. Sherman v.Cryns, 203 Ill. 2d 264, 786 N.E.2d 139 (2003).

In this case, the defendant acknowledges that the materials inthe envelope were harmful. The defendant, however, contends that shedid not knowingly distribute the harmful materials to Jessica.

As aforesaid, under the statute, "[d]istribute means totransfer possession." However, "possession" is not defined by thestatute, so we give this term its plain or ordinary and popularlyunderstood meaning. See Hamalainen, 341 Ill. App. 3d 205, 792 N.E.2d511.

According to The Random House Dictionary of the EnglishLanguage, Second Edition, the word "possession" is defined as "actualholding or occupancy, either with or without rights of ownership." The Random House Dictionary of the English Language 1509 (2nd ed.1987). Black's Law Dictionary, Seventh Edition, defines "possession"as follows:

"1. The fact of having or holding property in one'spower; the exercise of dominion over property. 2. Theright under which one may exercise control over somethingto the exclusion of all others; the continuing exercise ofa claim to the exclusive use of a material object." Black's Law Dictionary 1183 (7th ed. 1999).

The evidence at trial showed beyond a reasonable doubt that thedefendant transferred the envelope and its contents to Jessica withinstructions to give the envelope to Richard. After this act,Jessica had and held power and dominion over the envelope and itscontents. Thus, the defendant distributed the envelope and itscontents to a minor, as defined by the statute.

The defendant knew the contents of the subject matter of thephotographs. Therefore, the defendant's distribution of harmfulmaterials to Jessica was done "knowingly," as that term is defined inthe statute. Taking the evidence in the light most favorable to theprosecution, we hold that a rational trier of fact could have foundthat the State proved the elements of distribution of harmfulmaterial to a minor beyond a reasonable doubt.

For the foregoing reasons, we affirm the Grundy County circuitcourt's judgment of conviction.

Affirmed.

Schmidt, J. specially concurring and Lytton, J., dissenting.

JUSTICE SCHMIDT, specially concurring:

I concur in the judgment, but write separately because I do nottotally agree with the analysis.

I believe that the inclusion of the second definition of"possession" from Black's Law Dictionary is inappropriate. Thatdefinition reads, "The right under which one may exercise controlover something to the exclusion of all others; the continuingexercise of a claim to the exclusive use of a material object." Black's Law Dictionary 1183 (7th ed. 1999).

With all due respect to the fine folks at Black's LawDictionary, this is the only place I have seen the word "possession"defined as above. This definition implies ownership. I am unawareof any section of the criminal law that requires possession toinclude ownership.

If "possession" is "the right to exercise control oversomething to the exclusion of all others," then a "mule" whoknowingly agrees to take drugs from Mr. A and deliver them to Mr. Bdoes not have "possession" of the drugs.

What actually occurred here was a bailment. The defendant(bailor) transferred the envelope and its contents to Jessica(bailee) with instructions to deliver it to her father. Other thanthe confusion caused by the second definition under Black's LawDictionary, there can be no question that this involved a transfer ofpossession.

I am aware that Justice Barry includes that second definitionout of a sense of duty to be complete. However, since thatdefinition is contrary to the common understanding of the term"possession," I would not include it. If, as the dissent suggests,that definition is correct, it would stand the law of possession inIllinois on its head.

JUSTICE LYTTON, dissenting:

I dissent. Under the second Black's Law Dictionary definitionquoted by the majority, there is a requirement that Jessica"continu[e]" to "exercise... a claim to the exclusive use of a materialobject." Slip op at 5. Although Jessica exercised some control overthe sealed envelope, it is difficult for me to conclude that hercontrol was "to the exclusion of all others", or that she exercised acontinuing claim to its exclusive use.

The majority attempts to rationalize Jessica's "control", butmerely restates the dictionary definition as if it were a recitation ofsupporting facts. Instead of giving us a factual basis for its legalconclusion, the majority simply cites a legal conclusion, i.e.,"Jessica exercised control over the envelope and its contents." Thisis a meaningless repetition of the legal requirements of the statute asdefined by Black's. The majority gives us nothing but a legalconclusion to affirm this conviction.

I would reverse, finding that the statutory requirements were notmet in this case.