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2022 IL App (2d) 210238 

No. 2-21-0238 

Opinion filed August 24, 2022 

IN THE 

APPELLATE COURT OF ILLINOIS 

SECOND DISTRICT 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of McHenry County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 19-CF-411 

) 

SABASTIAN L. ZARBOCK, ) Honorable 

) Robert A. Wilbrandt Jr., 

Defendant-Appellant. ) Judge, Presiding. 

PRESIDING JUSTICE BRIDGES delivered the judgment of the court, with opinion. 

Justices Hudson and Birkett concurred in the judgment and opinion. 

OPINION 

¶ 1 At issue in this appeal is whether, following a bench trial, the trial court erred in finding 

defendant, Sabastian Zarbock, guilty of unlawful possession of a controlled substance (720 ILCS 

570/402 (West 2018)) on the basis of legal accountability (720 ILCS 5/5-2(c) (West 2018)). 

Defendant was initially charged with drug-induced homicide (id. § 9-3.3(a)) stemming from the 

overdose death of Shannon Finn (Shannon), and the trial court found him not guilty of that offense. 

However, it found defendant guilty of Shannon’s unlawful possession of heroin, as an uncharged 

lesser included offense of drug-induced homicide. 

¶ 2 Defendant argues that unlawful possession was not a lesser included offense of druginduced homicide. He also argues that his counsel was ineffective for failing to move to suppress 
 

 

 

 

 

 

 

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statements he made to the police and that the evidence was insufficient to convict him of unlawful 

possession of a controlled substance. For the reasons herein, we agree that Shannon’s unlawful 

possession was not a lesser included offense of the alleged drug-induced homicide. Accordingly, 

we reverse. 

¶ 3 I. BACKGROUND 

¶ 4 On June 27, 2019, a grand jury indicted defendant on three counts of the offense of druginduced homicide. Count I charged defendant with drug-induced homicide (720 ILCS 5/9-3.3(a) 

(West 2018)), in that he, or one for whose conduct he was legally responsible, knowingly delivered 

heroin to another and, thereafter, Shannon ingested the heroin, causing her death. Count II was 

identical except that the drug allegedly delivered and ingested was fentanyl instead of heroin. 

Count III was also the same except it alleged delivery and ingestion of both fentanyl and heroin. 

¶ 5 Defendant’s bench trial began January 13, 2021, and lasted several days. The State’s first 

witness was Justin Finn (Justin), who testified as follows. He was Shannon’s brother, and in May 

2019 he had lived with Shannon and his girlfriend, Miranda Martinez, in an apartment on Elm 

Street in Algonquin. Shannon was living with him because she had just gotten out of rehab for 

substance abuse. He was familiar with her substance abuse issues, “[t]o an extent.” She had 

regularly used marijuana and alcohol, but her drug of choice had shifted to heroin. He was aware 

that Shannon had previously overdosed on April 30, 2019, and she had been administered Narcan 

and taken to the hospital. 

¶ 6 On May 27, 2019, Justin came home from work sometime around 8 or 9 p.m. Martinez 

was home when he arrived, and Shannon returned home around 11 p.m. He recalled that Shannon 

was “breathing kind of funny” when she was sleeping on the couch that night. He described the 

breathing as if her nose was clogged and she was taking a “really deep exhale” every five to seven 

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seconds; it sounded a bit “like grunting.” He kept checking on her hourly, for a total of around five 

times. Her breathing returned to normal at some point, and that was when he went to bed. 

¶ 7 Justin woke around 7 a.m., and he noted that Shannon’s breathing seemed fine. He went 

back to sleep until 11 a.m. Between 7 and 11 a.m., he did not check on her. When he found Shannon 

after 11 a.m., she was half off the couch, with her head and neck on the floor. He screamed 

Shannon’s name multiple times, and Martinez attempted CPR and tried to give her Narcan. 

Shannon had given Narcan to Martinez “just in case.” The Narcan did not help, and Justin called 

for an ambulance. 

¶ 8 Martinez testified as follows, largely consistent with Justin’s testimony. On the afternoon 

of May 27, 2019, she had observed defendant at the apartment with Shannon. He was sitting on a 

small couch by Martinez’s door. Shannon left the apartment with defendant, and she returned later 

that night alone. When Shannon returned, she “did not seem herself, but she did not seem 

completely off.” 

¶ 9 Martinez and Justin went to bed around 4 a.m., after Shannon’s breathing irregularity 

seemed to subside. Martinez awoke the next morning to Justin yelling both her and Shannon’s 

names. She administered Narcan to Shannon, but it did not have an effect. Shannon had given her 

a Narcan nasal spray when she got out of rehab, saying that it was in case she relapsed. 

¶ 10 Antonia Serio testified next as follows. She was a heroin addict, and she had last used 

heroin on April 19, 2020. She had known defendant since at least May 2019, and she knew him 

“through using.” They had traveled together on the afternoon of May 27, 2019, to obtain heroin at 

“some mall” in what she thought was Oak Brook. She drove defendant, Shannon, and a person 

named Carlos. Defendant had brought Shannon; Serio had not met Shannon before. 

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¶ 11 At the mall, they waited for the drug dealer, Melo. Melo was not the drug dealer’s real 

name; she later identified Melo as Rufus McGee. Melo eventually arrived, and they were able to 

complete a drug transaction in the parking lot that day. Everyone got drugs, and she believed some 

of them “used” in the mall parking lot, although her memory was unclear. Serio was not paid for 

driving the other three, but she thought they may have helped with gas money or may have given 

her some extra bags for driving—again, she could not remember for sure. Afterward, Antonia 

believed, she dropped Shannon off at her home with defendant, but she “[didn’t] remember 

exactly.” She then went home herself. 

¶ 12 Haley Bucheleres was a police officer with the Village of Algonquin, and she testified as 

follows. On May 28, 2019, she was dispatched to Shannon’s residence in Algonquin in response 

to a suspected overdose. She served as evidence technician for the investigation at the apartment. 

She found an empty Narcan container on the coffee table, and she knew that Narcan is used to 

revive somebody who has overdosed on opiates. Under a cushion on the couch, she found an empty 

Newport cigarette pack with a one-inch straw, a clear baggy containing a white powdery substance, 

and a red card. She collected the physical evidence, using fentanyl-resistant gloves. 

¶ 13 John Palmer was a police inspector with the Village of Algonquin, and he testified as 

follows. He was currently assigned to the North Central Narcotics Task Force, which investigated 

narcotics related crimes, and he had been a part of that task force in May 2019. On May 28, 2019, 

he went to Justin and Martinez’s apartment to investigate the suspected drug overdose of Shannon. 

¶ 14 When he arrived, several others were present, including law enforcement officers, Justin, 

Martinez, and Christopher Bell. Bell was the father of Shannon’s two sons. Palmer observed the 

evidence recovered from the couch near Shannon’s body. The short straw was significant in that 

it was consistent with the ingestion of a powdered substance via snorting. The plastic bag was 

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notable in that it had black eagles printed on it and was consistent with the size and shape of a 

typical heroin bag. 

¶ 15 In the course of Palmer’s investigation, he met with defendant on the evening of May 28, 

2019. He first met with defendant at an apartment in Crystal Lake, and then drove him to the 

Algonquin Police Department for an interview. The interview began at approximately 11 p.m. and 

continued into the next morning. The interview was recorded and admitted into evidence as State’s 

exhibit 18. Another officer was present with them at the interview, and the interview was recorded. 

Through the interview, Palmer learned that defendant was with Carlos Cazares, Serio, and 

Shannon on the evening of May 27, 2019. Antonia drove, Cazares was in the front seat, defendant 

was in the rear driver’s seat, and Shannon was in the rear passenger’s seat. Shannon did not 

personally know Melo; her connection to him was through defendant, who had Melo’s phone 

number memorized. Defendant said that he was her “connect” for the drugs she obtained. Palmer 

explained that a person who is the “connect” for heroin typically has a “finder’s fee”—that is, the 

person with the dealer gets a portion of the narcotics based on being able to connect a buyer to the 

dealer. “[T]he person with the money obviously gets the largest share of the drugs,” and the driver 

may also get a cut of the drugs. 

¶ 16 At the conclusion of the interview, Palmer drove defendant back to his apartment. When 

he dropped defendant off, defendant told Palmer that he believed the bags of narcotics obtained on 

May 27, 2019, had a black pattern on the bags. His description was consistent with the baggy 

recovered near Shannon. Palmer arrested defendant on June 5, 2019. 

¶ 17 From the interview, Palmer learned that defendant primarily used Facebook Messenger to 

communicate. Palmer obtained a search warrant for defendant’s Facebook account, and defendant 

also showed him his account. Facebook responded to the warrant, returning a file containing 

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2022 IL App (2d) 210238 

Facebook Messenger messages and a certificate of authenticity. Palmer identified Facebook 

messages between defendant and Shannon, as well as between defendant and Cazares and 

defendant and others. 

¶ 18 The trial court accepted Dr. Mark Peters, a forensic pathologist in private practice, as an 

expert in forensic pathology and allowed him to testify as to cause of death. Peters testified as 

follows. He performed an autopsy on Shannon on May 30, 2019. During the internal examination, 

he noted that she had mild to moderate congestion and edema of her lungs, which, coupled with 

her toxicity report, was a common finding in opioid overdoses. 

¶ 19 Samples of Shannon’s blood and urine had been sent to a lab for a toxicological analysis. 

The toxicological report Peters received indicated that she had morphine, fentanyl, acetyl fentanyl, 

and codeine in her blood. Acetyl fentanyl was not a prescribed medication; it would be present 

only in illegal drugs. Those compounds found in her blood were also found in her urine, as was 6-

monoacetylemorphine, which was a metabolite of heroin. She would not have had this compound 

in her urine unless she had consumed heroin shortly before death. It was his opinion that Shannon 

died of adverse effects of heroin, acetyl fentanyl, and fentanyl. The ingestion of drugs would have 

been within hours of her death. 

¶ 20 Barbara Schuman was a forensic scientist specializing in drug chemistry for the Illinois 

State Police Rockford Forensic Science Laboratory, and the court accepted her as an expert in 

forensic drug chemistry. She examined the contents of the baggy taken as evidence from the scene 

of Shannon’s death. The powder from the baggy, which had black eagles on it, weighed 0.4 grams 

without any packaging. She tested the substance, and, based on her results, testified that the powder 

conclusively contained heroin. There were indications that the powder also contained fentanyl, but 

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the results she obtained did not provide enough information to conclusively identify fentanyl. It 

was therefore her opinion that the 0.4 grams of powder contained heroin. 

¶ 21 Defendant moved for a directed finding, and the trial court denied the motion. The defense 

did not call any witnesses. The trial court ordered the parties to submit written closing arguments, 

and the trial court asked them to address the State’s theory of accountability in their arguments. In 

the trial court’s comments on the State’s theory of accountability, it remarked, “I don’t think he’s 

been charged by the State with possession. The only thing that I can see that the defendant is 

charged with is drug-induced homicide.” The State responded that “possession is a lesser included 

[(offense of drug-induced homicide)] as well.” In defendant’s closing argument, counsel argued 

that possession was not a lesser included offense. 

¶ 22 The trial court issued its memorandum decision on February 16, 2021. The trial court made 

the following findings of fact regarding defendant’s actions during the evening of May 27, 2019, 

and into the following morning. On May 27, 2019, Shannon contacted defendant seeking drugs, 

defendant was aware that she was seeking drugs, and he desired to assist her. They had previously 

used illegal drugs together. Defendant contacted Cazares, seeking illegal drugs, and Carlos in turn 

contacted Serio, seeking drugs. Serio contacted a person known as Melo and arranged for a 

meeting to obtain drugs. Defendant had no direct contact with Melo or Melo’s “runner” on May 

27, 2019, and he was not aware that Serio had contacted Melo or what they had agreed upon. 

Defendant did not own the vehicle used to obtain the drugs and was never in physical control of 

the vehicle on that date. Further, defendant “did not purchase or take delivery of any illegal drugs 

directly from” Melo. Nor did he personally deliver any illegal drugs to Shannon on May 27, 2019. 

¶ 23 By defendant’s admission, the trial court continued, he saw Shannon take possession of 

heroin from Melo’s runner and deliver a bag to defendant and another bag to occupants in the front 

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seat of the vehicle. The vehicle occupants used the heroin at an unknown location somewhere 

between Oakbrook Mall and McHenry County. No evidence was presented regarding what, if 

anything, Shannon agreed to give to defendant or others in exchange for their presence with 

Shannon. Instead, the evidence showed that defendant agreed to “call around” and accompany 

Shannon in hopes that he would receive a “gift” of heroin after Shannon completed her transaction. 

Shannon died as a result of injecting the heroin purchased and obtained on May 27, 2019.1 

¶ 24 The trial court found the evidence insufficient to show that defendant delivered illegal 

drugs to Shannon or that he was accountable for the actions of Melo and his runner. It therefore 

concluded that defendant was not guilty of the three counts of drug-induced homicide. 

¶ 25 However, the trial court’s analysis did not end there, as the State had asked it to consider 

the uncharged lesser included offense of unlawful possession of a controlled substance (720 ILCS 

570/402 (West 2018)). The trial court determined that unlawful possession of a controlled 

substance was a lesser included offense of drug-induced homicide, and it found that defendant was 

legally accountable for Shannon’s possession of heroin in that he willfully and intentionally aided 

her in seeking to obtain it. Therefore, the trial court found defendant guilty of unlawful possession 

of a controlled substance containing heroin. It found him guilty of possessing the statutory 

minimum amount of heroin, as there was no evidence presented as to the actual amount of heroin 

that Shannon possessed. 

¶ 26 The trial court sentenced defendant to 24 months’ probation. This timely appeal followed. 

¶ 27 II. ANALYSIS 

1

The decision lists the date as November 27, 2019, but given that Shannon was found dead 

on May 28, 2019, the date was a typo. 

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¶ 28 Defendant raises several issues on appeal: whether unlawful possession of a controlled 

substance was a lesser included offense of drug-induced homicide, whether defense counsel was 

ineffective for failing to move to suppress defendant’s statements to the police, and whether the 

evidence was sufficient to convict defendant of possession of a controlled substance. 

¶ 29 At the outset, the State argues that defendant’s brief violates Illinois Supreme Court Rule 

341(h)(6) (eff. Oct. 1, 2020), in that his statement of facts is argumentative, provides incorrect 

information and improper citations, and fails to include vital evidence from trial. The State 

therefore requests that we dismiss defendant’s appeal or, in the alternative, strike his statement of 

facts. 

¶ 30 We agree that defendant’s statement of facts is, at times, argumentative in tone and that the 

statement contains some citation deficiencies. For instance, to support his description of the 

offenses charged, defendant’s brief cites the closing argument instead of the indictment and, for 

witness testimony, cites the trial court’s memorandum decision instead of the relevant report of 

proceedings pages. However, we decline to dismiss the appeal or strike the statement because of 

these limited deficiencies. The brief’s deficiencies do not significantly hinder our review, and the 

State’s inclusion of its own statement of facts was prudent and helpful. Therefore, we merely 

admonish defense counsel to provide this court with a full and fair account of the relevant 

proceedings in accordance with Rule 341(h)(6) in any future briefing. 

¶ 31 We turn first to defendant’s argument that unlawful possession of a controlled substance 

was not a lesser included offense of drug-induced homicide. Specifically, defendant argues that 

his accountability for Shannon’s unlawful possession of a controlled substance was not a lesser 

included offense of Melo’s drug-induced homicide. He argues that his indictment does not contain 

a main outline or a broad foundation of Shannon’s possession of a controlled substance. Further, 

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he argues that a seller can commit drug-induced homicide without the decedent knowingly 

possessing the controlled substance. He argues, in other words, that no reasonable defendant 

charged with drug-induced homicide would anticipate being convicted of the decedent’s 

possession of a controlled substance. 

¶ 32 Defendant continues that the offenses of drug-induced homicide and unlawful possession 

of a controlled substance involve different principal offenders and factual bases. Defendant argues 

that this is consistent with the purpose of the drug-induced-homicide statute, which was designed 

to punish dealers and not possessors. He contends that, although the two statutes each involve 

knowledge as the mens rea for the offense, the mens rea applies to different actors: to wit, 

knowledge applies to the deliverer for drug-induced homicide but would apply to the user under a 

possession charge. Defendant further argues that drug-induced homicide does not require that the 

decedent knowingly possess the controlled substance, hypothesizing a situation where a man 

spikes a woman’s drink without her knowledge, she ingests the controlled substance, and she dies 

as a result. 

¶ 33 Moreover, defendant argues that his defense would have been different had he known he 

was defending accountability for Shannon’s possession as opposed to accountability for Melo’s 

delivery that resulted in Shannon’s death. In short, he argues that he did not have fair notice of a 

possession charge against him. 

¶ 34 Defendant additionally argues that the evidence at trial did not rationally support his 

conviction of possession. He argues that he did not facilitate Shannon’s possession but that instead 

Serio and Cazares arranged the sale, while he “went along for the ride” in hopes that Shannon 

would provide him some of her drugs. 

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¶ 35 The State responds first by arguing that defendant has forfeited his argument that 

possession of a controlled substance is not a lesser included offense of drug-induced homicide. It 

argues that defendant never objected in a posttrial motion in a posttrial motion to consideration of 

the lesser included offense in a posttrial motion and, in fact, never objected at all. The State also 

contends that defendant cannot rely on plain-error analysis, as he did not develop such an 

argument. 

¶ 36 Forfeiture aside, the State argues that defendant’s argument fails on the merits, as 

possession of a controlled substance is a lesser included offense of drug-induced homicide. It 

argues that the indictment provided a broad outline and sufficient notice of unlawful possession of 

a controlled substance, in that it lists the date of the offense, the location, the controlled substance 

(heroin), and Shannon as the possessor/ingestor of heroin. It approvingly cites the trial court’s 

statement that, unless Shannon possessed heroin, “she could not have died from the heroin 

delivered to her, and could not have *** ‘ingested a portion of the heroin into her body.’ ” 

¶ 37 Further, the State continues, defendant concedes that the seller’s possession is a lesser 

included offense of drug-induced homicide. It argues that a drug-induced homicide would 

necessarily involve a transfer of possession from the seller to the victim, and therefore the seller’s 

transfer of possession to another would make the other’s possession equally included in the offense 

of drug-induced homicide. 

¶ 38 We disagree with the State that defendant forfeited his argument that unlawful possession 

of a controlled substance is not a lesser included offense of drug-induced homicide. Contrary to 

the State’s assertion that defendant never objected at trial to consideration of the lesser included 

offense, after the issue was broached by the State at the end of trial, defendant argued in his written 

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closing argument that Shannon’s possession was not a lesser included offense of drug-induced 

homicide. 

¶ 39 Although defendant did not raise the issue in a posttrial motion, he did not have to. Whether 

an uncharged offense is a lesser included offense of a charged offense presents a constitutional 

issue of due process. People v. Kolton, 219 Ill. 2d 353, 359 (2006) (“A defendant in a criminal 

prosecution has a fundamental due process right to notice of the charges brought against him.”). 

As such, defendant’s objection in his written closing argument satisfies the exception that 

constitutional issues that were raised at trial and could be raised in a postconviction petition may 

be advanced on direct appeal without first being presented in a posttrial motion. People v. Almond, 

2015 IL 113817, ¶ 54 (explaining that, ordinarily, to preserve an issue for review, a party must 

raise the issue at trial and in a written posttrial motion, but “constitutional issues that were 

previously raised at trial and could be raised later in a postconviction petition are not subject to 

forfeiture” (emphasis in original)). 

¶ 40 We turn to the merits of defendant’s argument. As we explain below, we agree with 

defendant that, in this case, Shannon’s unlawful possession of a controlled substance was not a 

lesser included offense of the alleged drug-induced homicide. The relevant language for unlawful 

possession is found under section 402 of the Illinois Controlled Substances Act (720 ILCS 570/402 

(West 2018)), which provides that “it is unlawful for any person knowingly to possess a controlled 

*** substance.” For drug-induced homicide, section 9-3.3(a) of the Criminal Code of 2012 (720 

ILCS 5/9-3.3(a) (West 2018)) provides that “[a] person commits drug-induced homicide when he 

or she violates Section 401 of the Illinois Controlled Substances Act *** by unlawfully delivering 

a controlled substance to another, and any person’s death is caused by the injection, inhalation, 

absorption, or ingestion of any amount of that controlled substance.” 

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¶ 41 Criminal defendants have a fundamental right to due process of law, which includes notice 

of the charges brought against them. People v. Robinson, 232 Ill. 2d 98, 104 (2008). Thus, a 

defendant may not be convicted of an offense they have not been charged with committing. People 

v. Clark, 2016 IL 118845, ¶ 30. However, a defendant may be convicted of an uncharged offense 

if it is a lesser included offense of an offense expressly charged in the charging instrument and the 

evidence adduced at trial rationally supports a conviction of the lesser included offense and 

acquittal of the greater offense. Kolton, 219 Ill. 2d at 360. 

¶ 42 An “included offense” under section 2-9(a) of the Criminal Code of 2012 (720 ILCS 5/2-

9(a) (West 2018)) is an offense “established by proof of the same or less than all of the facts or a 

less culpable mental state (or both), than that which is required to establish the commission of the 

offense charged.” Courts have found that this statutory definition provides little guidance in 

determining whether an offense is a lesser included offense of another. E.g., People v. Kennebrew, 

2013 IL 113998, ¶ 28. Therefore, courts have employed three methods to determine whether an 

offense is a lesser included offense: (1) the “abstract elements” approach, (2) the “charging 

instrument” approach, and (3) the “factual” or “evidence” adduced at trial approach. Id. The 

abstract-elements approach applies when determining whether a charged offense is a lesser 

included offense of another charged offense. People v. Henson, 2017 IL App (2d) 150594, ¶ 18. 

On the other hand, when the issue is whether an uncharged offense is a lesser included offense of 

a charged offense, the charging-instrument approach applies. Id. (citing Kolton, 219 Ill. 2d at 362-

63). Under the charging-instrument approach, a court looks to the charging instrument to see 

“whether the description of the greater offense contains a ‘broad foundation’ or ‘main outline’ of 

the lesser offense.” People v. Miller, 238 Ill. 2d 161, 166 (2010) (quoting Kolton, 219 Ill. 2d at 

361). 

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¶ 43 Whether an uncharged offense is a lesser included offense “is a decision which must be 

made on a case-by-case basis using the factual description of the charged offense in the 

indictment.” (Internal quotation marks omitted.) Clark, 2016 IL 118845, ¶ 31 (citing Kolton, 219 

Ill. 2d at 367). The factual description of the charged offense must describe, in a broad way, the 

conduct necessary for the commission of the lesser included offense, and any element not explicitly 

set forth in the charging instrument must be able to be reasonably inferred from the allegations. 

Kolton, 219 Ill. 2d at 367. In other words, the factual allegations must put the defendant on 

sufficient notice of the lesser included offense. People v. Devine, 2022 IL App (2d) 210162, ¶ 39 

(“Imposition of an uncharged lesser included offense is proper if ‘the defendant had sufficient 

notice of the uncharged offense.’ ” (quoting Kennebrew, 2013 IL 113998, ¶ 53)). Sufficient notice 

may be achieved where the chagrining instrument includes allegations of each element of the 

uncharged offense. Kennebrew, 2013 IL 113998, ¶ 53. 

¶ 44 The charging-instrument approach is a two-tiered approach. Id. ¶ 30. First, the court must 

determine whether the uncharged offense is a lesser included offense of the greater, charged 

offense. Id. Whether an offense is a lesser included offense presents a question of law, which we 

review de novo. Clark, 2016 IL 118845, ¶ 32. Second, the court examines the evidence adduced 

at trial to determine whether the evidence was sufficient to convict of the lesser included offense. 

Kennebrew, 2013 IL 113998, ¶ 30. The court should not undertake the second step unless and until 

it has determined that the uncharged offense is a lesser included offense of a charged offense. 

Kolton, 219 Ill. 2d at 361. Here, we answer the first inquiry in the negative, and we therefore do 

not examine whether the evidence adduced at trial was sufficient to convict. 

¶ 45 Count I of defendant’s indictment provides as follows: 

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“That on or about May 27, 2019, in McHenry County, State of Illinois, Sabastian 

L. Zarbock, defendant, committed the offense of DRUG INDUCED HOMICIDE, in that 

said defendant, or one for whose conduct the defendant is legally accountable, knowingly 

delivered heroin, a controlled substance, to another in violation of Section 401 of the 

Illinois Controlled Substances Act, and Shannon D. Finn thereafter ingested a portion of 

the heroin into her body and said ingestion of heroin caused the death of Shannon D. Finn, 

in violation of Chapter 720, Section 5/9-3.3(a) of the Illinois Compiled Statutes.” 

Counts II and III were different only in that the controlled substances were alleged to be fentanyl 

(count II) and heroin and fentanyl (count III). 

¶ 46 The factual allegations in the indictment are sparse. The indictment provides the date of 

the alleged delivery of heroin but not the time or place (although the State argues that the 

indictment provides the location, “McHenry County” lacks helpful specificity). The indictment 

does not provide context such as Shannon contacting defendant about purchasing drugs or 

defendant traveling with Shannon for her to purchase heroin. Although we learn of these facts 

through evidence adduced at trial, we do not yet consider this information under the charginginstrument approach. See People v. Baldwin, 199 Ill. 2d 1, 7 (2002) (in making the first-tier 

determination under the charging-instrument approach, courts do not consider facts adduced at 

trial). 

¶ 47 Further, the indictment does not identify any specific person for whom defendant would 

be legally accountable. It does not identify the “another” to whom the heroin was allegedly 

delivered. The indictment also does not describe how Shannon came to ingest heroin following 

the alleged delivery, providing only that she thereafter ingested heroin and died as a result. It does 

not provide the date or location of Shannon’s ingestion or death. The allegations in the indictment 

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put defendant on notice simply that he was charged with being responsible for a delivery of heroin 

in McHenry County on May 27, 2019, and that Shannon ultimately ingested the heroin and died 

as a result. 

¶ 48 We acknowledge that, when looking at the indictment in the abstract, unlawful possession 

of a controlled substance would be a lesser included offense of drug-induced homicide. Under the 

abstract-elements approach, unlawful possession of a controlled substance is a lesser included 

offense of delivery of a controlled substance, and delivery of a controlled substance is an explicit 

element of drug-induced homicide. See People v. Collins, 2015 IL App (1st) 131145, ¶ 37 

(unlawful possession of a controlled substance was a lesser included offense of unlawful 

possession of a controlled substance with intent to deliver); People v. Coleman, 391 Ill. App. 3d 

963, 976 (2009) (unlawful possession of a controlled substance with intent to deliver was a lesser 

included offense of unlawful delivery of a controlled substance). 

¶ 49 However, the charging-instrument approach does not entail an examination of the 

indictment solely in the abstract. See supra ¶ 43. Nor should it. The fundamental issue presented 

by an uncharged lesser included offense, as opposed to a charged lesser included offense, is one 

of sufficient notice to the defendant. See Kennebrew, 2013 IL 113998, ¶ 53. Therefore, we must 

examine not only the elements explicitly alleged in the indictment but also its factual allegations. 

In other words, we must determine whether defendant had sufficient notice of the uncharged 

criminal conduct. Relevant to this inquiry is of whose unlawful possession defendant would have 

been on notice. 

¶ 50 We conclude that, in this case, defendant did not have sufficient notice of Shannon’s 

unlawful possession of heroin and that therefore her possession was not a lesser included offense 

of drug-induced homicide under the charging-instrument approach. Contrary to the State’s 

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argument that delivery necessarily involves a transfer of possession from the seller to the victim, 

from the indictment’s inclusion of Shannon as the victim of a drug-induced homicide one could 

not reasonably infer that she was a party to the delivery on May 27, 2019, or that she was the 

“another” in the indictment—that is, the direct purchaser or transferee of the delivered heroin. 

Drug-induced homicide requires only that the victim die as a proximate result of the delivery. See 

720 ILCS 5/9-3.3(a) (West 2018) (drug-induced homicide requires the unlawful delivery of “a 

controlled substance to another, and any person’s death is caused by the *** ingestion *** of that 

controlled substance” (emphases added)); People v. Boand, 362 Ill. App. 3d 106, 143 (2005) 

(explaining that the drug-induced-homicide statute is satisfied by showing that the death was 

proximately caused by the delivery of the controlled substance). 

¶ 51 Even if Shannon were explicitly alleged to be the transferee of the heroin, Shannon’s 

knowing possession of heroin would not necessarily be inferred. See 720 ILCS 570/402 (West 

2018) (“[I]t is unlawful for any person knowingly to possess a controlled *** substance ***.” 

(Emphasis added.)). Although delivery to another under the drug-induced-homicide statute 

includes a knowing transfer of possession by the deliverer (id. § 102(h) (“ ‘Deliver’ or ‘delivery’ 

means the actual, constructive or attempted transfer of possession of a controlled substance ***.”); 

People v. Kidd, 2013 IL App (2d) 120088, ¶ 33 (the drug-induced homicide statute incorporates 

the “knowing” mental state for the delivery of the controlled substance)), a transferee need not be 

in knowing possession after the delivery. Defendant’s hypothetical in his brief, where a man spikes 

a woman’s drink with a controlled substance, is but one situation in which a delivery may occur 

without the transferee’s knowledge. Thus, under this indictment, defendant’s notice of unlawful 

possession reasonably extended only to himself as the alleged deliverer or to the deliverer for 

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2022 IL App (2d) 210238 

whose conduct he was alleged to be accountable. Shannon’s ultimate possession as the victim, 

without more, did not provide defendant sufficient notice of her unlawful possession. 

¶ 52 In short, defendant’s indictment for drug-induced homicide needed to allege more facts 

from which it reasonably could be inferred that he was accountable for Shannon’s unlawful 

possession of the delivered heroin. As we know from the evidence adduced at trial, this was a case 

of a fellow drug user helping his friend procure more drugs, only to result in a tragically familiar 

overdose death. The evidence showed that Shannon contacted defendant about purchasing “5 

bags,” he procured a ride for them to purchase the drugs from Melo, and they drove together to the 

location where she purchased heroin from Melo or his runner. However, none of this sort of 

information appeared in the indictment, nor could it be inferred from it. 

¶ 53 Accordingly, defendant’s conviction of unlawful possession of a controlled substance is 

vacated. See Baldwin, 199 Ill. 2d at 15-16 (vacating the conviction where the charging instrument 

did not provide sufficient notice of the lesser included offense of which the defendant was 

convicted). Because we resolve defendant’s appeal on this issue, we do not consider his additional 

arguments regarding ineffective assistance of his trial counsel and the sufficiency of the evidence. 

¶ 54 III. CONCLUSION 

¶ 55 For the reasons stated, we reverse the judgment of the circuit court of McHenry County. 

¶ 56 Reversed. 

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2022 IL App (2d) 210238 

People v. Zarbock, 2022 IL App (2d) 210238 

Decision Under Review: 

Attorneys 

for 

Appellant: 

Attorneys 

for 

Appellee: 

Appeal from the Circuit Court of McHenry County, No. 19-CF411; the Hon. Robert A. Wilbrandt Jr., Judge, presiding. 

DePaul University Legal Clinic, of Chicago (Elizabeth Botti, of 

counsel, and Georgie Bierwirth, Matthew Landry, and Samuel 

Archie, law students), for appellant. 

Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick 

Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the 

People. 

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