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People v. Cadena

Court of Appeals of Illinois, Second District

August 5, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
SERGIO CADENA, Defendant-Appellant.

Held: [*]

Defendant’s convictions for unlawful delivery of a controlled substance within 1, 000 feet of a church and unlawful possession of a controlled substance with intent to deliver within 1, 000 feet of a church were reduced to unlawful delivery and unlawful possession of a controlled substance, since the State failed to present testimony that the church at issue was active on the date of the offenses, which were two years prior to defendant’s trial.

Appeal from the Circuit Court of Boone County, No. 09-CF-364; the Hon. Fernando L. Engelsma, Judge, presiding.

Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Elgin, for appellant.

Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M. Bauer and Colleen P. Price, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

BIRKETT, JUSTICE

¶ 1 Following a jury trial in the circuit court of Boone County in which he was convicted of unlawful deliveries and unlawful possession of a controlled substance within 1, 000 feet of a church (720 ILCS 570/401(c)(2), 407(b)(1) (West 2008)), defendant, Sergio Cadena, appeals his convictions. Defendant contends that the State presented insufficient evidence from which the jury could determine that the nearby Evangelical Covenant Church was a "church" on the dates of the offenses and under the meaning of section 407(b)(1) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/407(b)(1) (West 2008)). We agree, and we affirm as modified in part, reverse in part, and remand the cause for resentencing.

¶ 2 I. BACKGROUND

¶ 3 On October 14, 2009, defendant was indicted on three counts of unlawful delivery of a controlled substance within 1, 000 feet of a church (counts I, III, IV) (720 ILCS 570/401(c)(2), 407(b)(1) (West 2008)). Those counts involved police-controlled purchases of cocaine occurring on July 26, September 12, and October 4, 2009. Defendant was also charged with one count of unlawful possession of a controlled substance with intent to deliver within 1, 000 feet of a church (count II) (720 ILCS 570/401(c)(2), 407(b)(1) (West 2008)) and one count of unlawful delivery of a controlled substance (count V) (720 ILCS 570/401(c)(2) (West 2008)), which were based on an August 2, 2009, controlled purchase.

¶ 4 Defendant concedes that he violated section 401(c)(2) of the Act (unenhanced delivery of and possession with intent to deliver a controlled substance), but he challenges the jury's finding that he committed the offenses within 1, 000 feet of a church. Accordingly, defendant seeks the reversal of the enhanced Class X felony convictions and the affirmance of unenhanced Class 1 felony convictions of delivery of a controlled substance. Because the only issue on appeal is whether defendant committed the offenses within 1, 000 feet of a church, we confine our factual summary to the testimony about the "enhancing locality" identified by the State as a church.

¶ 5 David Dammon, a police officer involved in the operation, testified that the transactions giving rise to the charges occurred or originated in the parking lot of a McDonald's restaurant in Belvidere. The Evangelical Covenant Church was located northeast of the McDonald's, though it was not visible from the restaurant's parking lot. On October 6, 2009, Officer Dammon measured the distance between the church parking lot and the McDonald's parking lot using a laser device known as "LIDAR." The distance between the church's real property and the location in the McDonald's parking lot where the controlled purchases had occurred or originated was 860 feet or less.

¶ 6 Leon Barry, a police officer who had worked for the Belvidere police department for 27 years, was involved in surveillance of the "controlled purchases." Officer Barry's direct testimony comprises 75 pages of transcript in the record on appeal. In addition to extensive questioning about the circumstances of each of defendant's transactions, his only testimony about the church was sandwiched between testimony about executing search warrants on defendant and his co-offenders:

"Q. [Prosecutor:] Now, in relation to the McDonald's located at 11–sorry–1313 North State Street in Belvidere, Boone County, Illinois, is it located near the Evangelical Covenant Church locate[d] at 220 East ...

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