Appeal from the Circuit Court of Kane County. No. 09-CF-2029 Honorable Allen M. Anderson, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Schostok concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Jose L. Ortiz, was found guilty of unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(1) (West 2008)), unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2008)), and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)). The trial court sentenced defendant to six years in prison. Defendant timely appealed. Defendant argues that the State did not prove beyond a reasonable doubt that there was a church within 1,000 feet of the site of the offense. Therefore, he asks that we reverse his conviction of unlawful delivery of a controlled substance within 1,000 feet of a church and remand for sentencing on his conviction of unlawful delivery of a controlled substance. For the reasons that follow, we affirm in part, reverse in part, and remand.
¶ 3 Defendant was charged with unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(1) (West 2008)), unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2008)), and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)).
¶ 4 The relevant evidence presented at defendant's bench trial established that, on January 7, 2009, Elgin police officer Miguel Pantoja, while working undercover, purchased a quarter-ounce of cocaine from defendant. The transaction took place in Pantoja's vehicle at the intersection of Bent and Liberty Streets in Elgin. Elgin police officer Craig Tucker had been assigned to assist Pantoja with the investigation concerning defendant. Shortly after the transaction had occurred, Tucker met with Pantoja, along with other officers involved in the investigation, at the police station for a "debriefing." Pantoja gave the cocaine to Tucker, who processed it for evidence. To protect Pantoja's identity, defendant was not arrested until six months later.
¶ 5 Tucker was asked whether he had conducted any measurements with respect to the investigation. In response, Tucker testified that he measured the distance from the Emmanuel Baptist Church, located at 500 St. Charles Street in Elgin, to the location of the drug transaction. According to Tucker, the distance measured 705 feet. Using People's exhibit No. 2, an aerial photograph of the area, Tucker identified the location of the Emmanuel Baptist Church and the location of the drug transaction. Tucker identified People's exhibit Nos. 3, 5, 6, 7, 8, and 10 as photographs of the building located at 500 St. Charles Street. He identified People's exhibit No. 9 as the sign in front of the building, which reads: "Emmanuel Baptist Church, Sunday worship 11:00 a.m. and Sunday school 9:30." Finally, Tucker identified People's exhibit No. 4 as a photograph of the intersection of Bent and St. Charles Streets and stated that the photograph accurately depicted the intersection on January 7, 2009.
¶ 6 The trial court found defendant guilty of all three counts. Defendant filed a motion asking the court to reconsider its finding of guilty as to count I. Defendant argued that there was no evidence presented to establish that the building at issue was primarily used as a church. The court denied the motion. The court stated that it could reasonably infer from the photographs and the testimony that the building was in fact a church.
¶ 7 Following a sentencing hearing, the court merged counts II and III into count I and sentenced defendant to the minimum sentence of six years in prison. Defendant timely appealed.
¶ 9 Defendant argues only that the State did not prove beyond a reasonable doubt that there was a church within 1,000 feet of the site of the offense. We review claims of insufficient evidence to determine " 'whether, after viewing 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.' " (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. Id. "[I]t is not the function of this court to retry the defendant." Id. The trier of fact must assess the credibility of the witnesses and the weight of their testimony, resolve conflicts in the evidence, and draw reasonable inferences from that evidence, and this court will not substitute its judgment for that of the trier of fact on these matters. People v. Ortiz, 196 Ill. 2d 236, 259 (2001).
¶ 10 Section 401(c)(2) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(c)(2) (West 2008)) makes it a crime to deliver 1 gram or more but less than 15 grams of any substance containing cocaine. A violation of section 401(c)(2) is a Class 1 felony, which is punishable by a term of imprisonment of not less than 4 years and not more than 15 years. 730 ILCS 5/5-8-1(a)(4) (West 2008). Section 407(b)(1) of the Act enhances a section 401(c) (720 ILCS 570/401(c) (West 2008)) offense to a Class X felony if the violation occurs "within 1,000 feet of the real property comprising any church, synagogue, or other building, structure, or place used primarily for religious worship." 720 ...