Appeal from the Circuit Court of Cook County. No. 99-CR-15048 Honorable Mary Maxwell Thomas, Judge Presiding
The opinion of the court was delivered by: Justice Theis
Following a bench trial, defendant Percy Edmonds was convicted of possession of a controlled substance with intent to deliver on a public way within 1,000 feet of a school. 720 ILCS 570/401(c)(2), 407(b)(1) (West 1998). He was sentenced to six years' imprisonment. On appeal, defendant argues that (1) the indictment charging him was fatally defective and, thus, his conviction should be reversed; and (2) the State failed to prove beyond a reasonable doubt that defendant committed the offense within 1,000 feet of a school. We affirm.
At trial, Officer Shawn Rellinger of the Chicago police department testified that on May 11, 1999, at approximately 9:55 p.m., he conducted a surveillance on the 3400 block of Adams Street, just west of Homan Avenue in Chicago. He saw defendant standing at the mouth of the alley, by the sidewalk, on the west side of Homan, between Monroe Street and Adams. Rellinger observed defendant engage in three separate transactions within five minutes where an unknown person approached defendant, had a short conversation, and handed defendant what appeared to be United States currency. Defendant looked at the currency, placed it in his pocket and then proceeded to a steel pole located in a vacant lot on Adams. The pole was approximately 10 to 20 feet from where defendant was standing in the alley. Defendant lifted a rock next to the pole, ripped a certain amount from a strip of plastic, and gave that object to the person.
After the third transaction, Rellinger radioed his partner and told him to detain defendant. Rellinger then proceeded to the pole, where he recovered six Ziploc bags, strip-taped together, containing suspected crack cocaine. Defendant was then arrested and a search revealed $120 in his pants pocket. On cross-examination, Rellinger stated that he did not include in his report that he saw defendant place the alleged currency in his pocket or that he saw defendant tear something from the strip of plastic. He also admitted that he could not actually see the currency but assumed that it was money.
Investigator Eugene Connelly testified that he measured the distance between where defendant was arrested to Marshall High School. Connelly used a measuring instrument, the Roladex 400, which measured the distance in feet while he rolled it along the ground. Connelly accurately calibrated the instrument before he took measurements.
He began measuring from the alley behind 3401 West Monroe, an address he obtained from the police report. The alley ran east/west and was between Monroe and Adams and west of Homan. He measured down the alley to Marshall High School, which was between Monroe and Adams and Spaulding and Kedzie Avenues. Connelly testified that he measured to a concrete slab in front of the school building on the east side of Spaulding, which was approximately 20 feet from the sidewalk and 50 feet from the school building. The distance from the alley behind 3401 West Monroe to Marshall High School was 752 feet.
On cross-examination, Connelly admitted that in his investigative report he misspelled Monroe as "Monore" and did not include a direction, such as east or west, before the Monroe address from which he started measuring. At the time he took the measurement, he knew the address of Marshall High School to be 3250 West Adams, but he did not know the legal limits of the school property or the legal limits of 3401 West Monroe.
The parties stipulated that Marshall High School was a Chicago public school located at 3250 West Adams and was operating as such on May 11, 1999. Further, it was stipulated that the contents of the six bags recovered contained 1.3 grams of cocaine.
At the close of this evidence, defendant made a motion for a directed verdict, which was denied. When finding defendant guilty as charged, the trial court noticed a discrepancy in the indictment. While the indictment described the charge as possession of a controlled substance with intent to deliver on a public way within 1,000 feet of a school, the citation to the "1,000 feet of a school" provision was missing. Instead, only the citations to possession of a controlled substance with intent to deliver, "720-570/401(c)(2)," and the automatic transfer provision transferring defendant to adult court, "720-405/5-4(7)(A)," were cited. The trial court allowed the State to change the automatic transfer citation to "705-405/5-130(2)(a)" because the previous statute had been found unconstitutional under People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999). Over defense objection, the trial court also allowed the State to add a citation to the indictment, "720-570/407(b)(1)," which contained the "1,000 feet of a school" provision and changed the penalty from a Class 1 to a Class X felony. The trial court found defendant guilty of possession of a controlled substance with intent to deliver on a public way within 1,000 feet of a school and sentenced him to the minimum of six years' imprisonment. After defendant's motions for a new trial and to reconsider his sentence were denied, he filed this timely appeal.
Defendant first contends that the indictment was defective because it failed to state the citation for the offense for which he was ultimately convicted, "720-570/407(b)(1)," and the trial court erred in allowing the State to amend the indictment. The State responds that the addition of the statute was merely a formal, not a substantive, change and did not prejudice defendant and, thus, the trial court properly allowed the amendment.
Defendant never filed a pretrial motion to dismiss or a posttrial motion in arrest of judgment. After the trial court noticed the inconsistency in the indictment, defendant only objected to allowing the State to amend the indictment. Defendant repeated this objection in his motion for a new trial. However, defendant did not object to the sufficiency of the indictment in the trial court and raises this issue for the first time on appeal. Our standard of review, then, is whether the indictment apprised defendant of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Thingvold, 145 Ill. 2d 441, 448, 584 N.E.2d 89, 91 (1991); People v. Gilmore, 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460 (1976). We consider whether the defective indictment prejudiced defendant and whether the difference between the allegations in the indictment and the proof at trial was material and of such a character as to mislead defendant in preparing his defense. Thingvold, 145 Ill. 2d at 448, 584 N.E.2d at 91; People v. Weber, 264 Ill. App. 3d 310, 314, 636 N.E.2d 902, 905 (1994). If a defendant was sufficiently advised of the charges against him, the conviction may be sustained. Weber, 264 Ill. App. 3d at 314, 636 N.E.2d at 905. In making this determination, the reviewing court looks to the indictment and the record. People v. Maggette, 195 Ill. 2d 336, 348, 747 N.E.2d 339, 346 (2001).
Here, the indictment charged:
"[O]n or about May 11, 1999[,] at and within the County of Cook[,] Percy Edmonds committed the offense of possession of controlled substance with intent to deliver in that he, being at least 15 years of age, unlawfully and knowingly possessed with intent to deliver *** 1 gram or more but less than 15 grams of a substance containing a certain controlled substance, to wit: more than 5 grams cocaine, on a public way within 1000 feet of the real property comprising any school, regardless of the time of day ...