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People v. Glisson
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0723 Rel
Case Date: 08/07/2001
                NOTICE
Decision filed 08/07/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same

NO. 5-99-0723

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee,) Massac County.
)
v.) No. 99-CF-29
)
MONICA GLISSON,) Honorable
) Terry J. Foster,
Defendant-Appellant.) Judge, presiding.


PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

On March 31, 1999, Monica Glisson (defendant) was charged with the followingoffenses: count I, chemical breakdown of an illicit controlled substance, and count II, misdemeanor theft. The jury found her guilty on both counts, and she was sentenced to 18months of probation and 30 days in jail. She contends that the State failed to prove herguilty of either offense and that the cumulative effect of the numerous errors at her trialdenied her a fair trial. She requests an outright reversal or a new trial. In addition,defendant filed a supplemental brief contending that the conviction on count I should bevacated because the statute under which she was charged was repealed. We agree. Wevacate the conviction on count I, and we reverse as to count II.

FACTS

The following facts were revealed during the trial. Just past midnight on March 10,1999, Massac County sheriff's deputy Kent Miles was on routine patrol on Highway 45. While he was on Highway 45 near Strawberry Shortcut Road, he saw a vehicle in thedistance. It was stopped on the road near the intersection of Highway 45 and Deer RunRoad. He watched an individual close the trunk and get in the passenger side of the vehicle. The vehicle then pulled out and drove down Highway 45.

As Miles followed the vehicle on Highway 45, he ran a check of the plates and waitedfor the reply from the dispatcher. About five minutes later, after following the car forseveral miles, Miles activated his emergency lights and stopped the car for illegally stoppingon the highway. He spoke with both defendant, the driver, and Joseph Draffen, thepassenger. He ran a check of defendant's license and insurance information, and he ranDraffen's name through the computer. He also called for backup, and Deputy RichardDouglas arrived.

The deputies asked defendant why she had stopped her car on the highway. Sheexplained that she and the passenger had argued and that she had left him at a nearbyrestaurant about 40 minutes earlier but then decided to go find him. While the deputies werespeaking with defendant, Deputy Douglas noticed that a key was in the keyhole for the trunkof the vehicle. Douglas asked defendant for permission to search the vehicle, and sherefused because it belonged to her mother. According to Douglas, he then touched the keyand the trunk automatically opened. Both deputies testified that there was a faint odor ofanhydrous ammonia during the traffic stop and that the smell became very strong when thetrunk opened.

Inside the trunk was a five-gallon bucket sealed with duct tape. Later it wasdetermined that the bucket contained several sheets, a small cooler that held the allegedanhydrous ammonia, a respirator mask, and a stick wrapped with duct tape. Chief deputysheriff Ted Holder also arrived at the scene. The Southern Illinois Drug Task Force wascontacted to send officers who were trained in the handling and removal of anhydrousammonia. Officers Dean Hamilton and Rick Griffey arrived at the scene. Hamiltonremoved the bucket from the trunk, opened it, opened the small cooler, and disposed of thealleged anhydrous ammonia.

COUNT I

In defendant's supplemental brief she has requested that this court vacate herconviction on count I because the statute under which she was convicted was repealed. Atthe time of the events described above, section 401.5(a-5) of the Illinois ControlledSubstances Act provided as follows: "It is unlawful for any person to possess any substancewith the intent to use the substance to facilitate the manufacture of any controlled orcounterfeit substance or controlled substance analog other than as authorized by this Act." 720 ILCS 570/401.5(a-5) (West 1998). The statute was amended, effective January 1, 2000,when the legislature added subsection (c), which states, "This Section does not apply to themanufacture of methamphetamine or to the possession of any methamphetamine[-]manufacturing chemicals with the intent to manufacture methamphetamine or any salt ofan optical isomer of methamphetamine, or an analog of methamphetamine." 720 ILCS570/401.5(c) (West Supp. 1999). Two distinct questions must be answered to resolve thisissue: first, whether the statutory provision for the offense was repealed outright and,second, whether a savings clause applies.

When the legislature passes a repealing act and does not substitute anything else forit, "the effect is to obliterate such act as if it had never been passed." Show of Shows, Inc.v. Illinois Liquor Control Comm'n, 86 Ill. App. 2d 109, 117, 230 N.E.2d 268, 272 (1967). This " 'stops all pending actions where the repeal finds them.' " Show of Shows, Inc., 86 Ill.App. 2d at 117, 230 N.E.2d at 272 (quoting People ex rel. Eitel v. Lindheimer, 371 Ill. 367,373, 21 N.E.2d 318, 321 (1939)). Therefore, if no final relief has been granted prior to thetime the repeal is effective, it cannot be granted afterwards. Show of Shows, Inc., 86 Ill.App. 2d at 117, 230 N.E.2d at 272. This holds true even when a judgment has been enteredand the cause is pending on appeal, because the reviewing court must apply the law in forcewhen its decision is rendered. Show of Shows, Inc., 86 Ill. App. 2d at 117, 230 N.E.2d at272.

The State argues that the statute was not repealed outright but that the substance ofit was merely transferred to new provisions. Specifically, the State contends that section102(z-1) of the Illinois Controlled Substances Act (Act) was amended to add a definitionfor "methamphetamine[-]manufacturing chemical" (720 ILCS 570/102(z-1) (West Supp.1999)) and that section 401 of the Act was amended to include the unlawfulness ofpossessing "any methamphetamine[-]manufacturing chemical listed in paragraph (z-1) ofSection 102" (720 ILCS 570/401 (West Supp. 1999)). In addition, the legislature createda new offense in section 21-1.5 of the Criminal Code of 1961 that made it unlawful totamper with anhydrous ammonia equipment. 720 ILCS 5/21-1.5 (West Supp. 1999).

When reading these new provisions, however, we cannot find a crime of chemicalbreakdown of an illicit controlled substance. Although the State argues that the newprovisions merely rewrite section 401.5(a-5) of the Act and thereby transfer the offense, weconclude that the statutory provision for the offense was repealed outright. We musttherefore treat it as if it had never existed, unless the statute contained a savings clause.

If the statute contained a savings clause, the conviction must be affirmed because thestatutory prohibition was in effect at the time of the offense. The statute contained noexplicit savings clause. The State argues, however, that the general statutory savings clauseapplies.

Section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2000)) applies to criminalcases. People v. Tanner, 27 Ill. 2d 82, 84, 188 N.E.2d 42, 43 (1963). This provision states that a conviction entered after a statute has been repealed is still valid so long as the offensewas committed while the statute was in effect. 5 ILCS 70/4 (West 2000); Tanner, 27 Ill. 2dat 84, 188 N.E.2d at 43. There is no question that the offense occurred during the one yearthat the statutory prohibition was in effect. The general savings clause, however, has noapplication to repeals. Randall v. Wal-Mart Stores, Inc., 284 Ill. App. 3d 970, 974, 673N.E.2d 452, 455 (1996). Therefore, since there was no savings clause in the statute and thegeneral savings clause does not apply, we must treat the statutory prohibition as if it neverexisted. We vacate the conviction on count I. In view of our ruling on this issue, we do notneed to reach defendant's additional arguments regarding count I.

COUNT II

In count II defendant was charged under section 16-1(a)(1)(A) of the Criminal Codeof 1961, which states: "A person commits theft when he knowingly: (1) Obtains or exertsunauthorized control over property of the owner *** and (A) Intends to deprive the ownerpermanently of the use or benefit of the property[.]" 720 ILCS 5/16-1(a)(1)(A) (West 1998). Defendant was accused under an accountability theory. Defendant argues that the State didnot prove her guilty of theft beyond a reasonable doubt.

Although the State is correct that an appellate challenge to the sufficiency of theevidence is a "formidable task," that does not mean that it is an impossible one. We mayreverse defendant's conviction only if, after viewing the evidence in the light most favorableto the prosecution, we conclude that no rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541, 708N.E.2d 365, 369 (1999).

It is unnecessary for us to examine every element of the offense of theft in this case. The corpus delicti in the crime of theft is proof of injury or loss and criminal agency. Peoplev. Friedland, 202 Ill. App. 3d 1094, 1102, 560 N.E.2d 1012, 1018 (1990). The State failedto prove Fruitbelt, Inc.'s ownership of the anhydrous ammonia, and therefore, the State failedto prove an injury or loss to Fruitbelt, Inc.

The evidence presented at the trial indicated that no anhydrous ammonia had beentaken from Fruitbelt, Inc., on the night in question. The testimony revealed that the gaugeson Fruitbelt, Inc.'s tanks registered no loss, there was no odor of leaking anhydrous ammonianear the tanks, and none of the hoses were cut. There must be proof of actual ownership ofthe anhydrous ammonia before there can be theft of the anhydrous ammonia. "Proving thatthere was in fact an actual owner *** who had a superior possessory interest *** [is]essential to proving the defendant guilty of theft. Without proof of an identified 'owner,'there is no real proof the property was stolen." People v. Karraker, 261 Ill. App. 3d 942,957, 633 N.E.2d 1250, 1260 (1994).

Since the corpus delicti of the offense was not proved by the State, we conclude thatno rational trier of fact could have found the elements of the crime beyond a reasonabledoubt. Therefore, we reverse the conviction on count II.

CONCLUSION

For the foregoing reasons, we vacate defendant's conviction on count I, chemicalbreakdown of an illicit controlled substance, and we reverse defendant's conviction on countII, misdemeanor theft.

Vacated in part and reversed in part.

HOPKINS and GOLDENHERSH, JJ., concur.

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