The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County.
Honorable Rodolfo Garcia, Judge Presiding.
Defendant Charles Durdin was convicted of one count of delivery of cocaine within 1,000 feet of a school, a Class 1 felony, and convicted of one count of delivery of heroin, a Class 2 felony. He was sentenced to seven years in prison. On appeal, defendant contends that the trial court erred in convicting him of delivery of cocaine within 1,000 feet of a school because none of the evidence introduced at trial established that the single transaction at issue involved cocaine. Defendant also contends that the sentence imposed by the trial court was unauthorized because it was based upon the erroneous conviction.
On April 6, 1998, the defendant was indicted for delivery of a controlled substance. Count I of the indictment alleged that defendant delivered less than one gram of cocaine on a public way within 1,000 feet of a public school. Count II alleged that defendant delivered less than 10 grams of heroin.
The testimony at trial established that on March 5, 1998, Chicago police officer Lawrence Fields was working as an undercover narcotics buyer on South Keeler Avenue in Chicago. He approached defendant, who asked the officer what he needed. Officer Fields told defendant that he wanted "two blows," a street term for two packets of white heroin. Defendant approached Paul Brown, and after defendant spoke with Brown, defendant received two tinfoil packets from Brown. Fields then gave defendant $20 in prerecorded funds for the two packets and defendant gave the money to Brown. The parties stipulated that the tinfoil packets contained heroin.
After the transaction was completed, Fields radioed the enforcement officers, who arrested defendant and Brown. The arresting officers found the $20 in prerecorded funds in Brown's jacket pocket but did not find any more drugs during their search of the two men. Defendant testified that he was a drug user and not a deliverer. Defendant acknowledged that he bought heroin for Fields but claimed that Fields entrapped him to perform the criminal act. The trial court rejected defendant's entrapment defense and convicted defendant on both counts. The trial court sentenced defendant to one seven-year sentence of imprisonment. The record indicates that the trial court did not mention the fact that the count for delivery within 1,000 feet of a school alleged delivery of cocaine rather than delivery of heroin. In finding defendant guilty, the trial court noted:
"I think it's quite clear that Mr. Durdin committed the transaction of delivering the heroin to Officer Fields in conjunction with the defendant Brown. The defendant's version simply doesn't hold up."
Defendant first contends that the conviction on count I for delivery of cocaine within 1,000 feet of a school must be reversed because none of the evidence at trial established delivery of cocaine. According to defendant, the discrepancy between the allegations in count I of the indictment and the proof at trial requires reversal of the conviction on count I and resentencing on count II. Count I is a Class 1 felony, and count II is a Class 2 felony. The defendant does not contest his conviction for count II, delivery of heroin.
The State concedes the variance between the indictment and the proof presented at trial and agrees that reversal of count I of the indictment is proper. Although this court is not bound by the State's confession of error (People v. Kelly, 66 Ill. App. 2d 204, 209 (1965)), we agree with the parties that the variance between the indictment and the proof of trial requires reversal of count I. "In a criminal trial, it is the burden of the prosecution to prove beyond a reasonable doubt all material facts of the offense as charged by the indictment. [Citations.] By utterly failing to introduce proof to conform to the charge in the indictment, the State failed in its burden of proof at trial." People v. Daniels, 75 Ill. App. 3d 35, 40 (1979).
The standard of review for challenging the sufficiency of the evidence is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). The substantive elements of a charge of delivery of controlled substance require the State to prove at trial that defendant knowingly delivered a controlled substance. 720 ILCS 570/401(d) (West 1998); People v. Brooks, 271 Ill. App. 3d 570, 575 (1995) ("the State was required to prove that defendant knew he was delivering cocaine").
In addition, a defendant that knowingly delivers a controlled substance within 1,000 feet of a school may be sentenced to an increased term of imprisonment. See, e.g., 720 ILCS 570/407 (b)(2) (West 1998) (enhancing felony for delivery of controlled substance from Class 2 to Class 1 felony for delivery that occurs in a school, public housing building, place of religious worship, or senior citizen building, or on a public way and within 1,000 feet of a school, public housing building, place of religious worship, or senior citizen building). To prove this enhancing factor, the State need only prove the offense occurred within 1,000 feet of a school. The State is not required to prove that defendant was aware that the offense occurred within 1,000 feet of a school. People v. Pacheco, 281 Ill. App. 3d 179, 186-87 (1996). Even if defendant raises the affirmative defense of entrapment when charged with delivery of a controlled substance, the State must still prove beyond a reasonable doubt each element of the crime. People v. Fernandez, 240 Ill. App. 3d 518, 520 (1992).
In this case, the State failed to present any evidence that defendant knowingly delivered cocaine within 1,000 feet of a school. The State's witnesses testified that defendant delivered "blow" and that "blow" was a street term for heroin. The parties stipulated that the controlled substance at issue was heroin. When finding defendant guilty of the count I, delivery of cocaine within 1,000 feet of a school, neither the parties nor the trial judge realized the discrepancy between the indictment and the trial testimony. However, the proof at trial failed to prove count I of the indictment. Moreover, the State also stipulated that the controlled substance at issue was heroin and never moved to amend count I of the indictment. Here the State was required to prove that defendant knew he was delivering cocaine. People v. Brooks, 271 Ill. App. 3d 570, 575 (1995). The conviction for delivery of cocaine within 1,000 feet of a school under count I cannot stand because the ...