NO. 4-00-0317

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

CHARLES REEVES,					)	No. 99CF1631

		Defendant-Appellant.		)

								)	Honorable

								)	Michael Q. Jones,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Defendant Charles Reeves was convicted by a jury of

possession of drug paraphernalia, a crack pipe, in violation of

the Drug Paraphernalia Control Act (Act) (720 ILCS 600/1 et seq. (West 2000)).  Defendant was acquitted, however, of possession of

cannabis.  Defendant moved for judgment notwithstanding the

verdict on the drug paraphernalia count, arguing the State did

not present sufficient evidence on each element necessary for

conviction.  The trial court denied the motion.  We reverse.  

		The question presented in this case is whether, in a

prosecution for possession of drug paraphernalia, the prosecution

must prove that the possessed item was "marketed for use" in

growing, producing, storing, or ingesting drugs, as is required

by section 2(d) of the Act, which defines "drug paraphernalia." 

720 ILCS 600/2(d) (West 2000).  Because the interpretation of a

statute is a question of law, our review is de novo.  People v. Maggette, 195 Ill. 2d 336, 348, 747 N.E.2d 339, 346 (2001).    

		Defendant was charged with knowingly possessing "an item of drug paraphernalia, namely:  a clear tube with 'filtering

agent' with the intent of using it in inhaling a controlled

substance into the human body," in violation of section 3.5 of

the Act.  Section 3.5 provides:

			"(a) A person who knowingly possesses an

		item of drug paraphernalia with the intent to

		use it in ingesting, inhaling, or otherwise 

		introducing cannabis or a controlled substance 

		into the human body, or in preparing cannabis 

		or a controlled substance for that use, is 

		guilty of a Class A misdemeanor ***.

			(b) In determining intent under sub-

		section (a), the trier of fact may take into 

		consideration the proximity of the cannabis 

		or controlled substances to drug paraphernalia 

		or the presence of cannabis or a controlled 

		substance on the drug paraphernalia."  720 

		ILCS 600/3.5 (West 2000).

		Under section 3.5, it is not enough to possess an item

with the intent of using it to ingest a controlled substance. 

Under section 3.5, the item possessed must be "drug parapherna

lia."  "Drug paraphernalia" is defined as "[a]ll equipment, prod

ucts and materials of any kind which are peculiar to and marketed

for use in" growing, producing, storing[,] or ingesting cannabis or

a controlled substance.  720 ILCS 600/2(d) (West 2000).    

		Section 3.5, dealing with possession of drug parapher nalia, is a recent addition to the Act.  The original section was

section 3, which deals with the sale or delivery of drug para phernalia.  A prior version of section 3 provided there was a

violation if the person knew the item to be drug paraphernalia,

"or under all of the circumstances reasonably should have known"

the item to be drug paraphernalia.  Ill. Rev. Stat. 1985, ch. 56

1/2, par. 2103(a).  To the extent that the prior version pur

ported to allow convictions based on the constructive knowledge

of the seller, the supreme court held the statute to be unconsti

tutionally vague.  People v. Monroe, 118 Ill. 2d 298, 305, 515 N.E.2d 42, 45 (1987).  "Drug paraphernalia statutes are fre

quently challenged on vagueness grounds because of the inherent

difficulty in proscribing certain articles only in regard to

their illicit functions."  Monroe, 118 Ill. 2d at 305, 515 N.E.2d at 45.  Such vagueness objections can be overcome, however, by

requiring scienter.  Monroe, 118 Ill. 2d at 305, 515 N.E.2d at 45.  Although a pipe may be peculiar to drug use, that pipe is

not "drug paraphernalia" if the seller or marketer of the pipe

does not market the pipe with the intent that the pipe be used to

ingest drugs.  People v. Feld, 267 Ill. App. 3d 56, 61, 641 N.E.2d 924, 929 (1994) ("The State must prove beyond a reasonable

doubt that the items at issue are 'peculiar to' drug use and that the defendants 'marketed' those items as drug paraphernalia"

(emphasis in original)).  

		Where one is charged with possession of drug parapher

nalia, it should logically not be necessary to prove that any person marketed the item with the intent that the item be used to

ingest drugs.  Rather, it should only be necessary to prove that

the person possessed the item "with the intent to use it in

ingesting, inhaling, or otherwise introducing cannabis or a

controlled substance into the human body."  720 ILCS 600/3.5(a)

(West 2000).  Nevertheless, the definition of "drug parapherna

lia" which applies to sale and delivery cases also applies to

possession cases:  items "which are peculiar to and marketed for use" (emphasis added) in growing, producing, storing, or ingest

ing.  720 ILCS 600/2(d) (West 2000).

		There is no question, and defendant does not contest,

that defendant possessed the crack pipe in question in this case. 

Nor is there any question that the crack pipe, a glass tube with

a brillo pad as a filtering agent, is "peculiar to" drug use. 

The presence of cocaine on the crack pipe supports the jury's

finding that defendant intended to use the crack pipe to ingest

or inhale drugs.  See 720 ILCS 600/3.5(b) (West 2000).  The only

question is whether the crack pipe was "marketed" for use with

drugs.  The plain meaning of the statute seems to be that home

made items which have never been marketed cannot constitute drug

paraphernalia.  While this may be a legislative oversight, we are

not allowed to ignore the clear language of the statute.  People v. Bole, 155 Ill. 2d 188, 198-99, 613 N.E.2d 740, 745 (1993).

		The trial court, during the conference on jury instruc

tions, observed there was no evidence that the item was marketed. 

"If anything, from what I heard of the testimony[,] it sounds to me like this is a homemade contraption that wasn't marketed by

anybody for anything but rather put together by someone."  The

trial court's finding, as a matter of law, that the Act did not

require, in this case, a showing that the item was "marketed," was

in error.  The trial court should have granted defendant's motion

for judgment notwithstanding the verdict.  

		Based upon our ruling in this case, we need not address

defendant's argument that the trial court should have granted his

motion to suppress.  

		Accordingly, we reverse defendant's conviction.

		Reversed.

		MYERSCOUGH and STEIGMANN, JJ., concur.