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FIRST DIVISION
August 27, 2001

Following a bench trial, defendant Dan Raney was convicted of possession of a controlledsubstance with intent to deliver (1.349 grams cocaine) and sentenced to eight years in prison. Defendant contends on appeal that the State failed to prove him guilty beyond a reasonable doubtof possession of a controlled substance with intent to deliver because the State failed to establish aproper foundation for the admission of the scientific results from the gas chromatography massspectrometer (GCMS) machine. Defendant also contends, and the State concedes, that the mittimusincorrectly states that defendant was sentenced to nine years in prison and must be corrected toreflect the eight-year sentence of the court. We reverse.

On June 29, 1999, Officer Spanos and his partner were stopped by a citizen on Walnut andKedzie in Chicago. The citizen gave them a description of a man allegedly selling drugs in the area.The officers began a surveillance of 3359 West Walnut. Officer Spanos testified that he saw thedefendant engage in two drug transactions. The alleged buyer would approach the defendant, givehim money and defendant would walk down a gangway to a plastic bag on a windowsill from whichhe obtained a small bag which he gave to the buyer. Officer Spanos then approached the defendant,who was engaged in a third sale, detained the defendant, and retrieved the 14 smaller bags from thewindowsill containing a white, rock-like substance, suspect cocaine. During a custodial search, $50was recovered from the defendant. Officer Spanos testified that the 14 bags were inventoried andsent to the Illinois State Crime Laboratory for analysis and testing.

Webelene Bethea, a forensic scientist at the Illinois State Crime Laboratory, tested thecontents of People's exhibit No. 1, the 14 small plastic bags delivered to her in a sealed evidenceenvelope. Bethea first weighed the evidence and then conducted a cobalt thiocynate color test. According to Bethea, this preliminary test is similar to a field test. Bethea then performed a test withthe GCMS machine and concluded that the substance in the 14 packets contained cocaine.

The defendant contested Bethea's expertise because "she's not a member of any forensicchemistry organization ***[;] she didn't even get a degree in chemistry." Over the defense objection,the trial court found that she was qualified as an expert and allowed her to testify. After the Staterested its case, defendant moved for a directed finding based upon the chain of custody and lack ofproper foundation for Bethea's opinion that the substance contained cocaine. The motion for directedfinding was denied. Defendant rested. During closing argument defense counsel reiterated hiscontention that the State failed to prove defendant guilty beyond a reasonable doubt based on thelack of proper foundation for Bethea's opinion that the substance in the 14 packets contained cocaine. The trial court found defendant guilty of possession of a controlled substance with intent to deliverand sentenced defendant to eight years in prison.

In a controlled substance prosecution, the State must present sufficient evidence that thesubstance at issue is in fact a controlled substance. People v. Hagberg, 192 Ill. 2d 29, 34 (2000). A reviewing court may not substitute its judgment for that of the trier of fact on questions of theweight of the evidence, the credibility of the witnesses, or resolution of conflicting testimony. People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). The defendant has the burden to demonstrate that theState's evidence is "so improbable or unsatisfactory that it creates a reasonable doubt of thedefendant's guilt." People v. Collins, 106 Ill. 2d 237, 261 (1985); People v. Jones, 295 Ill. App. 3d444, 452 (1998). The relevant inquiry is whether, after reviewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could have found the essential elements of thecrime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573,99 S. Ct. 2781, 2788-89 (1979); People v. Sanchez, 115 Ill. 2d 238, 261 (1986). We find that theState failed to prove defendant guilty beyond a reasonable doubt based on the lack of properfoundation for expert Bethea's opinion that the substance in the 14 packets contained cocaine.

Defendant relies on People v. Bynum, 257 Ill. App. 3d 502 (1994), to support his contentionthat this court should find an insufficient foundation for the expert testimony of State forensicscientist Bethea. The defendant in Bynum, after being convicted of possession of 10 grams or lessof a controlled substance, argued on appeal that the State failed to provide a proper foundation forthe State's expert witness under Federal Rule of Evidence 703. Bynum, 257 Ill. App. 3d at 504, 513. The Illinois Supreme Court adopted Rule 703 of the Federal Rules of Evidence regarding experttestimony in Wilson v. Clark, 84 Ill. 2d 186, 193-95 (1981). Rule 703 states:

"The facts or data in the particular case upon which an expertbases an opinion or inference may be those perceived by or madeknown to the expert at or before the hearing. If of a type reasonablyrelied upon by experts in the particular field in forming opinions orinferences upon the subject, the facts or data need not be admissiblein evidence." Fed. R. Evid. 703.

In adopting Rule 703, Wilson held that an expert may give his opinion based upon facts that are notin evidence if those facts are of a type reasonably relied upon by experts in the particular field. Wilson, 84 Ill. 2d at 193.

In Bynum, the State's expert did not testify that the GCMS machine was generally relied uponby experts in her field, failed to explain how the machine was calibrated, and did not testify how sheknew the results from the GCMS machine were accurate. Bynum, 257 Ill. App. 3d at 514. Bynumconcluded that the State failed to provide a sufficient foundation for the opinion of the expert witnessunder Rule 703. Bynum, 257 Ill. App. 3d at 514. The Bynum court noted that under Rule 703 anadequate foundation requires a showing that the facts relied upon by an expert are of a typereasonably relied upon by experts in the field. Bynum, 257 Ill. App. 3d at 513.

The Bynum court, further recognizing the need for reliable scientific testimony, identified anadditional foundation requirement when expert testimony is based upon an electronic or mechanicaldevice. Bynum, 257 Ill. App. 3d at 513-14, citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). The electronic or mechanical device usedin Bynum was the GCMS machine and the court indicated, "when expert testimony is based uponan electronic or mechanical device such as that used here, the expert must offer some foundationproof as to the method of recording the information and proof that the device was functioningproperly at the time it was used." Bynum, 257 Ill. App. 3d at 514. The court noted that the expertfailed to explain how the machine was calibrated or why she knew its results were accurate andconcluded the State's failure to establish the necessary foundation proof was therefore sufficient topreclude the expert's testimony from being accepted into evidence under Rule 703. Bynum, 257 Ill.App. 3d at 514. However, because the defendant failed to object at trial, the Bynum court found thatthe issue regarding lack of proper foundation was waived. Bynum, 257 Ill. App. 3d at 514.

In this case, the testimony of State forensic expert Bethea satisfied the foundationrequirement regarding proof that the facts or data relied upon by expert Bethea were of a typereasonably relied upon by experts in the field. Specifically, expert Bethea testified that the datagenerated by the GCMS testing device is generally relied upon by experts in her field. She alsotestified that the testing she performed is generally accepted in the scientific community. However,expert Bethea failed to offer any evidence that the GCMS machine was functioning properly at thetime it was used to test the suspected controlled substance in this case.

After describing the procedures used to obtain the net weight of the suspected controlledsubstance, Bethea testified as follows:

"THE STATE: Tell the judge what the GCMS is?

EXPERT WITNESS: It's gas chromatography massspectrometer. It's an instrument basically that is geared to detect aswell as inject minute or microliter substances of what you haveadded. That's why I had to - where there's a solid, I have to put it ina liquid form; hence that's why I added methanol.

THE STATE: And prior to doing that GCMS test, did you doanything to the machine?

EXPERT WITNESS: Well, usually you go over there and putthe pertinent information, such as I have to load the program that Iwanted to run, as well as put the information in such as identificationof what the substance is that I'm running such as its RD number, orI would put in this case the case number.

THE STATE: And did you do anything else with themachine?

EXPERT WITNESS: Nothing else with the instrument.

THE STATE: Okay, and is the data generated by the gaschromatic - chromomatic - chromatographic mass spectro -spectrometer testing device generally relied upon by experts in yourfield?

EXPERT WITNESS: Yes, it's accepted.

THE STATE: And do you have an opinion based on youreducation, training, background, and testing as to what the substancecontained in People's Exhibit No. 1 for identification is?

EXPERT WITNESS: Yes, I do.

THE STATE: And what is that opinion?

EXPERT WITNESS: Is that 14 packets contained cocaine.

THE STATE: And would any other substance give you thesame positive results you obtained?

EXPERT WITNESS: No.

THE STATE: Is the testing you performed generally acceptedin the scientific community?

EXPERT WITNESS: Yes, it is.

THE STATE: And while analyzing the contents of People'sExhibit No. 1 for identification, the substance was in your continuouscare, custody, and control?

EXPERT WITNESS: Yes, it was."

Expert Bethea was never asked whether the GCMS machine was functioning properly at thetime it was used to test the substance contained in People's exhibit No. 1, the 14 packets ofsuspected cocaine. While she is not personally required to test the accuracy of the machine, at thevery least she should be able to offer some testimony that the GCMS machine was functioningproperly at the time it was used. There was no testimony verifying the accuracy of the GCMSmachine. There was no evidence as to the policy or procedures maintained by her departmentregarding that specific GCMS machine to ensure that it was properly maintained in working orderand would thereby provide accurate results. We note the State repeatedly tried to elicit what expertBethea did to the machine before conducting the GCMS test by asking, "And prior to doing thatGCMS test, did you do anything to the machine?" In response Bethea indicated that she had to loadthe program and put in pertinent identification information. However, the State followed that answerwith another attempt to elicit the proper foundation, "And did you do anything else with themachine?" To which Bethea answered, "Nothing else with the instrument."

Expert Bethea failed to testify that before conducting the GCMS test of the suspectedcontrolled substance the GCMS machine was working properly. She failed to indicate whether, forexample, any testing was done to assess the operating condition of the GCMS machine. She alsofailed to indicate whether standards were run to test the accuracy of the GCMS machine. As a result,this record contains no evidence regarding whether the GCMS machine was functioning properlyat the time it was used to analyze the substance in this case.

In People v. Payne, 239 Ill. App. 3d 698, 709 (1993), the defendant was convicted ofunlawful possession of more than 30 grams but not more than 500 grams of cannabis. The defendantargued that there was an insufficient foundation regarding the weight of the substance and urged thecourt to reduce his conviction to possession of less than 2.5 grams of cannabis. The State providedevidence verifying the accuracy of the scale used and the court concluded that the foundationregarding the weight of the substance was sufficient. Payne, 239 Ill. App. 3d at 709. The court inPayne noted that the foundation regarding weight of a substance is sufficiently proved if there istestimony verifying the accuracy of the scale used. Payne, 239 Ill. App. 3d at 709. In Payne therewas testimony that the scale used was checked by a drug inspector and was accurate. Payne, 239 Ill.App. 3d at 709. Unlike Payne, in this case no evidence regarding the accuracy of the GCMSmachine was provided.

In Martin v. Thompson, 195 Ill. App. 3d 43, 44 (1990), the defendant was discharged fromher employment with the Chicago police department for her alleged use of cocaine. The defendantcontested whether the test results admitted into evidence were in fact related to her urine specimen.Martin, 195 Ill. App. 3d at 49. While the accuracy of the test results were not challenged, the courtnoted that a GCMS testing machine used by an expert witness had been checked by running an"Autotune," which is a test performed on a known compound to assess the operating condition ofthe GCMS machine. Martin, 195 Ill. App. 3d at 46. A "standard run" and a "blank run" had beenmade by the expert before processing the sample at issue. Additionally, a senior supervisor andtoxicologist rendered his opinion that the tests were run properly and that the lab equipment had beencalibrated and was operating correctly. Martin, 195 Ill. App. 3d at 47.

We are mindful that under People v. Hill, it is not required that the chemical analystdetermine for himself or herself the reliability of the instrument being used in the evaluation of thesuspected controlled substance. People v. Hill, 169 Ill. App. 3d 901, 911 (1988), citing People v.Brannon, 59 Ill. App. 3d 531, 534 (1978), citing 2 J. Wigmore, Evidence