## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Johns on , 2013 IL App (4th) 120162

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. KENNET H J OHNSON, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-12-0162

Filed April 5, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In the absenc e of proof beyond a rea sonable doubt that defe ndant possessed heroin with the intent to deliver it, defe ndant’s convictions on two counts of unlawf

ul possession of a controlled substanc e with intent
to deliver wer e reduc ed to the lesser -i n cl u ded offe nses of unlawful possession of a controlled substance, his sentenc e was vacated and the

cause was re manded f

or a ne w sentenc ing he aring

.

Dec ision Under
Review Appea l from the Circuit C o urt of McL ean County
, No. 11-CF- 56; the Hon. J ames E. Souk, J udg e, pre siding.

J udg ment Affir med in part a s modified and vac ated in par t; cause r emande d with direc tions.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Michae l H. Vo n nahmen, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

Ronald C

. Dozier, State’s Attorney
, of Blooming ton (Patrick Delfino, Robert J

. Bide rm an , an d Kathy Shepard, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel PRES I DI NG J USTI C E STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustice Kne cht conc urre d in the judgme nt and opinion.
J ustice Appleton c oncurr ed in par t and dissented in par

t, with opinion.

OP INION

¶ 1 Following a J uly 2011 trial, a jury convicted defe ndant, Kenne th Jo h n son, of (1) unlaw ful possession with intent to deliver a controlled substance (more than 100 g rams but less than 400 g rams of a substance containing heroin) (720 I L CS 570/401(a)( 1)(B ) (West 2008)) and (2) unlawful possession of a controlled subst an ce (m ore than 15 g rams but less than 100
g rams of a substance containing heroin) (720 I L CS 570/401(a)( 1)(A) (West 2008)). The trial court ther eaf

ter sente nced de fenda

nt to 10 y ear s in prison. ¶ 2 Def

endant appea ls, arguing that the State failed to prove him guilty beyond a re asonable doubt. Be cause we conclude that the State failed to prese nt evidenc e that defe ndant intended
to deliver the heroin under the theory the State prese nted to the j u ry , we aff irm in part as modified, vac ate in par

t, and re mand with direc tions.

¶ 3 I . BA CKGROUND ¶ 4 In J anuar

y 2011, the State char g ed defe ndant with (1) unlawful possession with intent
to del i v er a controlled substance (more than 100 g rams but less than 400 g rams of a substance containing h er o i n) (720 I L CS 570/401(a)( 1)(B ) (West 2008)) (count I ) and (2) unlawful possession of a controlled substance (more than 15 g rams but less than 100 g rams

o f a substance containing heroin) (720 I L CS 570/401(a)( 1)(A) (West 2008)) (count I I I ). Def endant’ s case proce eded to a J uly 2011 jury trial, at which the State prese nted the followingevidenc e and a rgument. ¶ 5 In his opening statement, the prosec utor outlined for the jury the State’s char g es and the evidenc e that it planned to offe r to satisfy its burden of proof. In that pursuit, the prosec utor explained that the issues befor e the jury wer e as follows: “wh o s e [ h eroin] was it and who knew about it.” The prosec utor conclude d his opening rema rks by noting that the State would be asking the jury to return a guilty verdic t on both char g es based on the fac t that defe ndant

was “guilty of constructiv e ly p o s s e s s in g th is h e roin.” Def endant’ s opening statement focuse d

-2-primarily on explaining that the St a te’s key witness, upon whom the State’s case “depe nd[ed] entirely ,” did not support the cha rg es ag ainst defe ndant. ¶ 6 The State called I llinois State Trooper Scott Ahre ns, who testified that at approximately 1:20 a .m., he initiated a traf fic stop for a speeding violation on Interstate 55. Ahre ns found three people in the vehicle, Stephen McCrady
, Rhonda Simm ons, and defe ndant. McCrady

was in the driver’ s seat, Simm ons was in the front passeng er seat, and defe ndant was in the backse at of the vehicle. Ahre ns order ed McCrady to exit the vehicle beca use he had parke d partially on the i nterstate highwa y and it was “obvious from the g et-g o” that McCrady did
not have a driver’ s license. Ahre ns there afte r order ed defe ndant to move the vehicle onto a

near by exitramp. ¶ 7 I llinois State Trooper Shadd Gordon testified that he assisted Ahre ns in the traff ic stop. When he arr ived o n t h e scene , McCrady was inside Ahre ns’ vehicle and Ahre ns was handcuf fing defe ndant. Ahre ns asked Simm ons to exit the vehicle, and she did so, car rying her purse and a McDona ld’s bag

. Ahre ns told Simm ons that she could leave her things in the vehicle. Simm ons responde d by placing her purse in the vehicle but tossing the McDona ld’s bag on the g round beside the vehicle. She there afte r picked the bag up off the g round but left

a cup that she had previously thrown out the window of the vehicle. Gordon retrie ved the cup and found a black metal canister inside of it, which contained what would later be identified

as heroin. Gordon later found an additional amount of heroin in a pill bottle inside Simm ons’ purse. ( Def

endant stipulated to the fa ct that the substance s rec overe d wer e heroin.) ¶ 8 Ahre ns asked Simm ons whether “eve ry thing” was he rs, and she responde d by nodding her head to indicate, “yes.” Simm ons later said that she knew about the black metal container and the pill bottle, but did not know about the cup; she ex plained to Ahre ns that McCrady had order ed her to hold the heroin when they left Chicag o beca use McCrady and defe ndant believed t h at women were less likely to be searche d if confr onted by the pol ice. Si mmons stated t hat s he was conce rned when Ahrens stopped them for speeding
, and she wanted to
g et rid of the heroin. Howeve r, when defe ndant moved the v eh i cl e o n to the exit ramp, defe ndant order ed her to hold onto the heroin. Ahre ns then interviewe d defe ndant, who g ave inconsistent acc ounts of why the three wer e travelingfrom Chicag o. ¶ 9 Simm ons testified that she left St. L ouis with McCrady and defe ndant to g et heroin fr om

someone McCrady knew in Chicag o. She said that the rea son defe ndant came along was to be the dr iver, g iven that neither she nor McCrady had a driver’ s license. The g roup passe d around a small bottle of heroin for their persona l use on the way to Chicag o and on the return trip. All three knew why they wer e trave ling to Chicag o; McCrady wanted to purcha se heroin from his source

. As to why they trave led to Chicag o and who intended to keep the heroin to distribute, Sim mons testified on cross-e x amination as follows: “[SI MMONS:] First of a ll, Iknew e x actly what [McCrady] was doing.

*** [DEFENSE COUNSEL :] He told you to hold [ the her oin] ? [S I MMONS:] Yes. [ DEFENSE COUNSEL :] And when you testified ear lier, you said you took it and held it beca

use [McCrady] t old you to?

-3-[S I MMONS:] Yes. [DEFENSE COUNSEL :] Right? You’re kind of in a position wher e you’re expected to do what he tells you to do? [S I MMONS:] Well first of all, that’s my kid’s fathe r. He supported my habit. [DEFENSE COUNSEL :] Okay

. *** I guess we should explain; may be the jury knows, may

be they don’t. But when you say he [‘] supported y o u r h ab i t,[ ’] means he boug ht the heroin for

you and let you use it, rig ht? [S I MMONS:] He didn’t buy the her oin for me, he

– [DEFENSE COUNSEL :] No, when y ou say

– [S I MMONS:] He supplied me to make sure I wasn’t sick ever y day

. That’s what he did. [DEFENSE COUNSEL :] Okay

. But that means he g ave you heroin ever y day so that
you could use it, rig ht? [S I MMONS:] Right. [DEFENSE COUNSEL :] That’s what you mean? All rig ht. But [McCrady ] was the one giving you heroin before
, an d y o u indicated y ou wer e clean for a while, and when
you started dating him, you started usingag ain; is that right? [S I MMONS:] Right. [DEFENSE COUNSEL :] And so–but [McCrady ] made the purcha se, [he] owned the heroin, right? [S I MMONS:] Right. [DEFENSE COUNSEL :] He just had you hold it? [S I MMONS:] Right. [DEFENSE COUNSEL :] He wasn’t saying, take it home, do whateve r you want with it, was he? [S I MMONS:] No. [DEFENSE COUNSEL :] It was still his ? [S I MMONS:] Right. [DEFENSE COUNSEL :] And you sa id you passed it around, but you said [McCrady ] told y ou to? [S I MMONS:] Right. [DEFENSE COUNSEL :] Okay

. What did [y ou do] wi t h t h at heroin, you did what [McCrady ] t old you to do? [S I MMONS:] Right. [DEFENSE COUNSEL :] Okay

. And you’re upset today beca use [McCrady ] g ot you into this and he’ s leavingyou hang ing, right? [S I MMONS:] Both of them ar e, fo r rea l. Be cause they still lying about they was [ sic ]–i t wasn’t theirs. So whose w as it?

-4-[DEFENSE COUNSEL :] Okay . But [McCrady] pl anned the trip, right? [S I MMONS:] Right. [DEFENSE COUNSEL :] And [McCrady] t alked to the de aler , rig ht? [S I MMONS:] Right. [DEFENSE COUNSEL :] And [McCrady ] *** was the one who said [‘] l et’s g o to Chicag o and g et the stuff[’]? [S I MMONS:] Right. [DEFENSE COUNSEL :] And when you g ot back to St. L ouis, [McCrady ] was g oing to take it, wasn’t he ? [S I MMONS:] Right. [DEFENSE COUNSEL :] Do you know what he was g oing to do with it? [S I MMONS:] Iguess he wa s–well, Iknow what he was g oing to do with it. [DEFENSE COUNSEL :] What was he– [S I MMONS:] He wa s g oing to se ll it.” ¶ 10 Simm ons conclude d by noting that McCrady had indeed purcha sed the heroin from his

source in Chicag o, and the g roup immedi at el y b ega n the return trip to St. L ouis. On that
return tr ip, Ahrens stopped the m for spee ding. ¶ 11 Def

endant did not testify

or ca ll any

witnesses in his defe nse. ¶ 12 In his c lo s in g a rg u ment, the prosec utor focuse d his argument on possession–namely , how possession can be both constructive a nd joint–posi ting, a s follows: “Now the evidenc e in this case is that *** McCrady was kind of the lead guy here

. He was the one direc ting traff ic on this trip. There ’s no question that *** McCrady intended to deliver

this when they

g ot back to St. L ouis.
Did [defendant] have a part in that? To tell you the truth, I don’t know. I mean I know he was in the car , he intended to deliver it to St. L ouis with the rest of them. That’s intent to de liver. We don’ t ha

ve to show you that he had some one in mind in St. L ouis – hey
, I ’m g oing to g o take this to Bob. This is Bob’ s heroin. But when he was in the car on that trip, absolutely

. He knew exactly wher e it was g oing, and he intended to deliver that with the other thre e to St. L ouis from Chicag o.” ¶ 13 Duringits deliberations, the jury sent a note to the tria l court, statingas follows:
“We are 10-2 guilty with Count 1. The question in dispute is the definition of ‘intent
to deliver.’ Help us with information to explain what constitute s i n tent [and] what is meant by ‘deliver .’ ” Following a hearing on t h e j ury question, the court further instructed the jury on intent to deliver, a s follows:
“A person intends to acc omplish a result or eng ag e in co nduct when his conscious objective or

purpose is to ac complish that result or eng ag e in that conduc t. The word ‘deliver ’ means to transfe r possession or to attempt to transfe r possession. And delivery may *** occur with or without the transfe r or exchang e or money , or with

-5-or without the transfe r or e x chang e of othe r consider ation.”

¶ 14 T h e jury was not instructed at any point, nor did the State ever specific ally argue, t h at defe nd an t was guilty based on an acc ountability theory

. Howeve r, the jury did rec eive an instruction on the lesser- included offe nses of (1) unlawful possession of a contr o l l ed substance ( more than 100 g rams but le ss tha n 400 g rams of a substance containingheroin) and (2) unlawful possession of a controlled substance (more than 15 g rams but less than 100
g rams of a

substance c ontaining he roin). ¶ 15 Shortly there afte r, the jury convicted defe ndant of unlawful possession with in t en t to deliver a controlled substance (more than 100 g rams but less than 400 g rams of a substance containing heroin) and (2) unlawful po s s es s i o n of a controlled substance (more than 15
g rams but less than 100 g rams of a substance containing heroin). Following an August 2011
sent en ci n g h earing, the trial court sentenc ed defe ndant to 10 y ear s in prison on count I
, unlawful possession (more than 100 g rams but less than 400 g rams of a substance containing heroin). ¶ 16 This appea l followed.

¶ 17 I I . ANALYSI S ¶ 18 De fe n d an t argue s that the State failed to prove him guilty beyond a rea sonable doubt. Specifica lly
, defe ndant contends that the State’s evidenc e was insufficient t o p ro v e him
guilty of possession with intent to deliver the heroin beca use the State failed to show that he possessed the heroin, constructively or otherwise, and that he intended to deliver it. The State responds that allowing all rea s o n ab le i nfer ence s in favor of t he prosecution, it sufficie ntly proved that defe ndant j o intly and constructively possessed the heroin with the intent to deliver it when the g roup returne d to St. L ouis. Fo r the rea sons that follow, we reve rse defe ndant’s convic tion and rema nd for a new se ntencing

hearing.

¶ 19 A. The Standa rd of Revie w ¶ 20 When revie wing the sufficie ncy of the evidenc e, we view the evidenc e in the light most favor able to the prosec ution to decide whether any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt. People v. Price
, 2011 I L App (4th) 100311, ¶ 16, 958 N.E.2d 341. In so doing, we are mindful that we must d ra w all

rea sonable inferenc es from the record i n favor of t he prosecution. Id. In short, we will not overturn a criminal conviction “ ‘unless the evidenc e is so improbable or unsatisfac tory that it c reates a re asonable doubt of the def endant’ s guilt.’ ” I d. (quoting People v . Givens
, 237 I ll. 2d 311, 334, 934 N.E.2d 470, 484 (2010))

. Neve rtheless, the State must prove eac h ele m ent of the crimes char g ed beyond a rea sonable doubt. People v. Till ey , 2011 I L App (4th) 100105, ¶ 13, 958 N .E.2d 1123.

¶ 21 B. The Offe nses in This Case ¶ 22 In this case , the jury convicted defe ndant of (1) unlawful possession with intent to deliver

a controlled substance (more than 100 grams but less than 400 g rams of a substance

-6-containing heroin) (720 I L CS 570/401(a)( 1)(B ) ( West 2008)) and (2) unlawful possession

of a controlled substance (more th an 1 5 gra m s but less than 100 g rams of a substance containingheroin) ( 720 I L CS 570/ 401(a) (1)( A) (West 2008))

.

¶ 23 1. Possession of a Contr olled Substance ¶ 24 In People v. Scott
, 2012 I L App (4th) 100304, ¶ 20, 966 N.E.2d 340, this court c oncluded that sufficie nt evidenc e exis ted to support a finding that th e d ef endant had constructive possession of methamphetamine. In so concluding
, we noted that “[a] rea sonable juror could have inferr ed that defe ndant exhibi ted an intent and opportunity to continue exercisin g dominion over the methamphetamine by con ce al i n g it and attempting to destroy related
para pherna lia and trac e evidenc e befor e he answe red the door.” Id. In Scott
, we outlined the standard f or provingpossession in a caseinvolving contr olled substances, a s follows:
“In drug -re lated ca ses in g ener al, the ele ment of possession requir es ‘[the] defe ndant’s knowledg e of the prese nce of the narc otics and his immediate and exclusive control over them.’ P eo

p l e v. Morrison
, 178 I ll. App. 3d 76, 90, 532 N.E.2d 1077, 1086 (1988). ‘P o s session can be actua l or constructive.’ Id. Actual possession exis ts wher e the defe ndant exhibi ts ‘some form of dominion over the unlawful substance, such as trying
to conce al it or throw it awa y .’ Id. Constructive possession is shown wher e the defe ndant exercises ‘no actua l persona l prese nt dominion over the narc otics, but the re is an intent and a capa

bility to maintain control *** over them.’ Id. For example, ‘[w] here narc otics

ar e fo u n d on the premises rathe r than on a defe ndant, constructive possession may b e inferr ed from fac ts showing that he once had phy sical control with i n t en t t o ex erc ise control in his own behalf
, he has not abandone d the drug s and n o o t h er person has obtained possession.’ People v. McLaurin
, 331 I ll. App. 3d 498, 502, 772 N.E.2d 296, 300 (2002). ‘[E] vidence establishin g co nstructive possession is often wholly circ umstantial.’ (I

nterna l qu o t at i o n marks omitted.) People v. Minniweather
, 301 I ll. App. 3d 574, 580, 703 N.E.2d 912, 916 (1998).” Scott
, 2012 I L App (4th) 100304, ¶ 19, 966 N.E.2d 340.

¶ 25 2. Possession of Heroin in This Case ¶ 26 Her e, the State prese nted sufficie nt evidenc e that defe ndant had constructive possession of the heroin as a principal, in that he exercised dominion over the heroin by (1) trave ling to Chicag o, kn o wi n g t h at the trip was for the purpose of purcha sing heroin, (2) actua lly possessing a small amount of the heroin when he was using it, and (3) acting to conce al the heroin by order ing Sim mons to hold it beca use he believed that the pol ice were less likely
to sear ch a woman. This does not end our inquiry howeve r, g i v en t h at t he jury convicted defe ndant of possession with intent to deliver

. Acc ording ly
, we turn our analy sis to whether the S t at e p rese nted sufficie nt evidenc e that defe ndant possessed the heroin with intent to deliver.

-7-¶ 27 3. Intent To Delive r

¶ 28 Initially
, we note that direc t evidenc e of the intent to deliver a cont ro l l ed s ub s tance is

rar e; thus, intent must usually be proved by circ umstantial evidenc e. People v. Bond
, 405 I ll. App. 3 d 4 9 9
, 5 1 2
, 942 N.E.2d 585, 596 (2010). There fore
, we examine the nature and quantity of the circu m s t an t i al evidenc e prese nted in support of the infere nce of intent to deliver. People v. Robinson
, 167 I ll. 2d 397, 408, 657 N.E.2d 1020, 1026 (1995); see People

v. Clark
, 349 I ll. App. 3d 701, 704, 812 N.E.2d 584, 587 (2004) (noting that circ umstantial evidenc e of intent to deliver “must be mad e o n a case -by -ca se basis pursuant to a car eful revie w of the circ umstances surrounding defe ndant’s arr est”). Gene rally
, we look to a varie ty of factors as indicative of intent to deliver, including, among other t hings, (1 ) whether the quantity is too larg e to be viewed as being solely for persona l use, (2) the purity of the drug confiscated, (3) possession of wea pons, (4) possession of lar ge amounts of cash, (5) possession of police scan n er s , b eepers, or cellular telephones, (6) possession of drug
para pherna lia, and (7) the manner in which the substance is packa g ed. People v. Rivera
, 293 I ll. App. 3d 574, 576, 688 N.E.2d 752, 753 (1997) (citing Robinson
, 167 I ll. 2d at 408, 657 N.E.2d at 1026-27). Howeve r, g iven the numerous ty pes of controlled substances and the infinite number of potenti al s ce n ar ios, no “har d and fast” rule exis ts when deter mining whether the fac ts of a case support a finding of intent to deliver. Robinson
, 167 I ll. 2d at 414, 657 N.E.2d at 1030.

¶ 29 4. Intent To Delive r in This Case ¶ 30 Her e, the evidenc e prese nted clea rly showed that M cC ra d y p o s sessed the heroin with intent to deliver. Indeed, Simm ons testified that the entire trip was McCrady ’s idea, that he exercised signific ant control over the heroin, and that he planned to sell the heroin when he
returne d to St. L ouis. It appea rs from the transcript of proce eding s that the State’s theory of the case was that defe ndant either (1) s h ar ed McCrady ’s i ntent in that reg ard or (2), as the
prosec utor argued in closing
, that defe ndant “intended to deliver [t he heroin] *** to St. L ouis from Chicag o.” We addr ess ea ch theor y in turn. ¶ 31 First, the State’s primary theory of the ca s e ap p ea rs t o b e t h at d efendant shar ed McCrady ’s intent to deliver. The State’s evidenc e, howeve r, d o es n o t s upport that theory

. Viewe d in the light most fa vorable to the State, draw ing all rea sonable infere nces from the

rec ord in favor of the prosec ution, the State’s evidenc e showed that (1) defe ndant agree d to drive McCra dy and Simm ons to Chica g o, knowing that McCrady neede d him to drive him there to purcha se heroin, and (2) defe ndant exerted control over some of that heroin–indee d,
actua lly possessing it whe n he wa s using some of it for pe rsonal use. H oweve r, the State’s k ey witness, Simm ons, also testified that when they returne d to St. L ouis, McCrad y wa s g oing to take the her oin and sell it. That evidenc e we nt totally uncontra dicted. ¶ 32 In asser

ting on appea l that by draw ing all rea sonable inferen ce s fr o m t h i s evidenc e to conclude that defe ndant intended to deliver the heroin in this case , the State is essentially asking this co u

r t to im p ute M c Cra d

y ’ s intent–that is, his mental state–to defe ndant. Howeve r, intent to deliver as a mental state can be imputed only wher e the St ate’ s theory of t he case is one of acc ountability

. People v. McCoy
, 337 I ll. App. 3d 518, 524, 786 N.E.2d 1052, 1057

-8-(2003) (“be cause an acc omplice is leg ally acc ountable for the conduct of the person he aids,

the mental state of the person he aids may , in essenc e, be imputed to a defe ndant convicted under an acc ountability theory”). The S tate did not pursue that theory at t rial, t he jury was not instructed on that theory
, and for this court to uphold his c onviction on that theory now

on appea l would depri v e defe ndant of his due proce ss rig ht to argue in opposition to that theory

. See People v. Millsap
, 189 I ll. 2d 155, 166, 724 N.E.2d 942, 948 (2000) (holding that the defe ndant was deprive d of his due proce ss rig ht to make an argument in opposition to an

acc ountability theory wher e the trial judge instructed the jury on acc ountability in response to a jury question after

the jury had begun deliberations). ¶ 33 The State’s appar ent second th eo ry , that defe ndant possessed the heroin with intent to deliver beca

use he intended to “deliver it” from Chicag o to St. L ouis, fails for much the same

rea son. “De liver” in this context means more than simply transporting a controlled substance from one place to another

. At the very least, it require s an attempt to transfe r possession

. See 720 I L CS 570/102(h) (West 2008) (“ ‘De liver’ or ‘deliver y ’ means the actua l, constructive

or attempted transfe r of possession of a controlled substance, with or without consideration, whether or not there is an ag ency relationship.”). Under the State’s appar ent second theory
, “tra nsfer ” fr om one place to another is suff icient. It is not. ¶ 34 More likely
, what the prosec utor was alluding to in closing was that defe ndant could be

acc ountable for McCrady ’s intent to deliver the heroin when he returne d to St. L ouis, as the followingstatements from the prosec utor–which we have pre viously quoted–demonstrate : “Now the evidenc e in this case is that *** McCrady was kind of t he lead guy here . He

was the one direc ting traff ic on this trip. There ’s no question that *** McCrady intended to deliver this when they

g ot back to St. L ouis.
Did [defendant] have a part in that? To tell you the truth, I don’t know. I mean I know he was in the car , he intended to deliver it to St. L ouis with the rest of them. That’s intent
to deliver. We don’t have to show you that he had someone in mind in St. L ouis–[ ‘]hey
, I ’m g oing to g o take this to Bob. This is Bob’ s heroin[’]. But when he was in the car on that trip, absolutely

. He knew exactly wher e it was g oing and he intended to deliver that with the other thre e to St. L ouis from Chicag o.” Unfortunately
, the State did not argue an acc ountability theory to the jury or ask to have the jury so instructed. As a result, for the rea sons the supreme court explained in Millsap –which we ha ve pre viously

outlined–we ca

nnot affir m defe ndant’s convic tion on that basis. ¶ 35 In closing
, we note that we have advisedly char acte rized the State’s failure to pursue an

acc ountability theory as unfortunate

. We have done so beca use the evidenc e prese nted in this

case would have unequivoca lly supported a conviction b as ed upon that theory

. That is, defe ndant, both befor e and during M cC ra d y ’s commission of the offe nse of unlawful possession of a controlled substance with in t ent to deliver, and with intent to promote or fac ilitate McCrady ’s commission of that offe nse, aided and abetted McCrady in the planning or commission of that offe nse. See 720 I L CS 5/ 5-2(c ) (West 2010). ¶ 36 Although the evidenc e in this case is insufficient to prove defe ndant guilty of possession with intent to deli v er , we find it sufficie nt to support convictions on the lesser- included offe nses of (1) unlawful possession of a controlled substance (more than 100 g rams but less

-9-than 400 g rams of a substance containing heroin) and (2) unlawful possession of a controlled

substance (more than 15 g rams but less th an 100 g rams of a subst ance containing heroin). See People v. Nixon
, 278 I ll. App. 3d 453, 459, 663 N.E.2d 66, 70 (1996). Acc ording ly
, we reduc e defe ndant’s convictions, pursuant to I llinois Supreme Court Rule 615(b)( 3) (ef f. J an. 1, 1967), to (1) unlawful possession of a controlled substance (more than 100 g rams but less than 400 g rams of a substance containing heroin) and (2) unlawful possession of a controlled substance (more than 15 g rams but less than 100 grams of a substance containing heroin) (720 I L CS 570/402(a)( 1)(A)
, (B ) (West 2008)). Consequently
, we vacate def en dant’s
sentenc e and r emand the c ause to the tria l court for a new sentenc ing he aring

.

¶ 37 I I I . CONCLUSI ON ¶ 38 For the rea sons stated, we reduc e defe ndant’s convictions to the lesser- included off enses of (1) unlawful possession of a controlled substance (more than 100 g rams but less than 400
g rams of a substance containing heroin) and (2 ) u n lawful possession of a controlled substance (more than 15 g rams but less than 100 g rams of a su b s tance containing heroin). Acc ording ly
, we aff

irm in part as modified, vaca te the sentenc e imposed, and rema nd to the trial court f

or a new sentenc ing he aring . Be cause the State succ essfully defe nded a por

tion of the criminal judgme nt, w e g rant the State its $50 statutory assessment ag ainst defe ndant

as costs of this appea l. See People v. Smith
, 133 I ll. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) ( citing People v . Nicholls , 71 I ll. 2d 166, 178, 374 N.E.2d 194, 199 (1978)).

¶ 39 Affir

med in part a s modified and vac ated in par t; cause r emande d with directions.

¶ 40 J USTI CE APPL ETON, c oncurr ing in pa rt and dissentingin part. ¶ 41 I r e s p e c tf

ully dissent in part and would only sustain defe ndant’s conviction for p o s s e s s io n of a co n t rolled substance of more than 15 g rams but less than 100 g rams of a substance containing heroin. I would do so beca use I believe defe ndant did not exert possession of the
g reater amount by telling Simm ons to keep the heroin then in her possession g iven to her by McCrady

.

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