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People v. Levario

March 27, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTONIO C. LEVARIO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 95--CF--2591 Honorable Philip L. DiMarzio, Judge, Presiding.

The opinion of the court was delivered by: Justice Rathje

THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Defendant, Antonio Levario, appeals his conviction of unlawful delivery of a controlled substance within 1,000 feet of school property (720 ILCS 570/407(b)(2) (West 1994)). Defendant argues that his conviction must be reversed because the only evidence establishing that the delivery was within 1,000 feet of school property was inadmissible hearsay. We agree.

Defendant was charged with (1) unlawful delivery of a controlled substance within 1,000 feet of school property (count I) and (2) unlawful delivery of a controlled substance (count II) (720 ILCS 570/401(d) (West 1994)). At trial, the evidence established that defendant was accountable (see 720 ILCS 5/5--2 (West 1994)) for the sale of $40 worth of cocaine to two undercover police officers. The sale occurred at an apartment complex. A fence runs along the rear of the complex, approximately 205 feet from where the sale occurred. Behind the fence is a large open field. Somewhere in the large open field are a high school and its football field. One police officer testified that the fence marked the boundary for the school's property. The officer later admitted that he did not actually know where the property line was. A second officer, the school's liaison officer, testified that the fence was the boundary. During cross-examination, the liaison officer admitted that he knew this only because it is what the school administrators had told him. The trial court denied defendant's motion to strike the liaison officer's testimony.

The jury found defendant guilty of both counts. After denying defendant's motion for a new trial, the trial court entered Judgement on count I and sentenced defendant to four years' imprisonment. Defendant filed a timely notice of appeal.

Defendant does not contest that the State produced sufficient evidence to prove him guilty of unlawful delivery of a controlled substance. Instead, he contends that the only evidence that the State produced to prove that the delivery was within 1,000 feet of school property was inadmissible hearsay and that, once that evidence is excluded, insufficient evidence remains to support his conviction. We agree.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. People v. Simms, 143 Ill. 2d 154, 173 (1991). Unless hearsay falls within an exception, it is inadmissible. People v. Grano, 286 Ill. App. 3d 278, 294 (1996). Here the State attempted to prove the location of the school's property with testimony from the liaison officer that the school administrators had told him where the property boundary was. This is a classic example of hearsay. As such, it should have been excluded unless the State demonstrated that the testimony fell within an exception to the hearsay rule.

The State has presented no argument, either in the trial court or on appeal, that the liaison officer's testimony falls within an exception to the hearsay rule. Therefore, we must conclude that the liaison officer's testimony was inadmissible hearsay and that the trial court should have granted defendant's motion to strike.

Instead of arguing that the liaison officer's testimony was admissible, the State contends that it was not obligated to prove the exact location of the property line. Although we agree that the State does not have to prove the exact location of the boundary, the State does have to prove that the drug sale occurred within 1,000 feet of school property.

Once the liaison officer's testimony is excluded, the State's remaining evidence proves only that a school, which cannot be seen from the complex, and its football field are somewhere beyond the fence and that the fence is approximately 205 feet from where the drug sale occurred. The State presented no competent evidence to prove that a school building was within 1,000 feet of the drug sale or that the school owned any of the land between the school facilities and the fence. Since the State failed to produce this evidence, we must conclude that the evidence is insufficient to support a Conclusion that the sale occurred within 1,000 feet of school property.

We therefore exercise our power under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)) and reverse defendant's conviction of unlawful delivery of a controlled substance within 1,000 feet of school property; enter Judgement on count II, unlawful delivery of a controlled substance; and remand the cause for resentencing on count II.

Reversed and remanded.

COLWELL, J., concurs.

JUSTICE DOYLE, ...


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