Court of Appeals of Illinois, First District, Second Division
Rehearing denied December 12, 2013.
Defendant’s conviction for unlawful delivery of a controlled substance within 1, 000 feet of a school was reversed and the cause was remanded for the entry of a judgment affirming defendant’s conviction for unlawful delivery of a controlled substance and resentencing on that conviction, since the evidence was insufficient to establish beyond a reasonable doubt that the building described by the officer who observed the offense as “Our Lady of Peace school” was a school on the date of the offense.
Appeal from the Circuit Court of Cook County, No. 09-CR-4288; the Hon. Kenneth J. Wadas, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Ginger Leigh Odom, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Emily Czerniejewski, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE SIMON delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Pierce concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Randall Boykin, was found guilty of delivery of a controlled substance within 1, 000 feet of a school under the Illinois Controlled Substances Act (Act) (720 ILCS 570/407(b)(2) (West 2008)), and was sentenced to two years of felony probation. On appeal, defendant does not challenge the sufficiency of the evidence to prove him guilty of delivery of a controlled substance under section 401(d) of the Act. Rather, he challenges only whether the State provided sufficient evidence to prove that the offense was committed within 1, 000 feet of a school for purposes of enhancement under section 407(b)(2). Accordingly, he asks this court to reverse the enhanced Class 1 felony conviction and enter judgment on the unenhanced Class 2 felony conviction of delivery of a controlled substance. Because the only issue on appeal is whether defendant committed the offense within 1, 000 feet of a school, we confine our factual summary to the evidence presented about that "school."
¶ 2 The evidence adduced at trial established that on December 11, 2008, defendant participated in the sale of cocaine to undercover police officer Jennifer Przybylo, who was sitting in an undercover police vehicle at the intersection of 79th Street and Jeffrey Boulevard in Chicago. Officer Przybylo testified that as she was sitting in the vehicle, she saw a school located on the northeast corner of that intersection. The school was approximately 100 feet from the vehicle, there was a sign posted, and the school's name was "Our Lady of Peace."
¶ 3 Officer Derrick Miller testified that at the time of the offense, he was working as a surveillance officer and was parked on Jeffrey Boulevard, just north of 79th Street. As he observed the offense, he was "sitting right next to a school, a Catholic school." He answered affirmatively when asked if that school was "Our Lady of Peace school" and stated that it was located approximately 100 feet from Officer Przybylo's vehicle.
¶ 4 After the close of evidence and argument, the trial court concluded that the officers' testimony was "highly credible" and found defendant guilty of delivery of a controlled substance within 1, 000 feet of a school.
¶ 5 On appeal, defendant challenges the sufficiency of the evidence to sustain his conviction, contending that the State failed to prove beyond a reasonable doubt that Our Lady of Peace was operating as a school at the time of the offense and that the officers' mere characterization of it as a "school" is not enough. The State responds that the witnesses' credible testimony that Our Lady of Peace was a "school" established that the offense took place within 1, 000 feet of a school as required by the Act.
¶ 6 When a defendant challenges the sufficiency of the evidence in a criminal case, it is not the function of a reviewing court to retry the defendant. People v. Collins, 106 Ill.2d 237, 261 (1985). Rather, the proper standard of review is "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." Jackson v. Virginia, 443 U.S. 307, 319 (1979). A reviewing court will not substitute its judgment for that of the trier of fact on issues of the weight of evidence or credibility of witnesses. People v. Phelps, 211 Ill.2d 1, 7 (2004). The State bears the burden of proving all essential elements of the charged offense beyond a reasonable doubt (People v. Weinstein, 35 Ill.2d 467, 470 ...