Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Toliver

Court of Appeals of Illinois, First District, Second Division

August 9, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MARCUS TOLIVER, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 13 CR 15993 Honorable Mary Margaret Brosnahan, Judge Presiding.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Neville concurred in the judgment and opinion. Presiding Justice Pierce dissented, with opinion.

          OPINION

          HYMAN JUSTICE

         ¶ 1 When a drug offense takes place within 1000 feet of a school, does the State also need to establish that the structure was operating as a school at the time of the offense? Defendant Marcus Toliver contends the State failed to prove this purported element beyond a reasonable doubt. We disagree, finding no case or statutory authority requiring the State prove the school "operational." In addition, Toliver stipulated and conceded to the jury that he was arrested within 1000 feet of a school. Toliver also requests, and we concur, that the mittimus be corrected to reflect eight additional days of presentence credit.

         ¶ 2 BACKGROUND

         ¶ 3 A jury found defendant Marcus Toliver guilty of one count of unlawful possession of a controlled substance (more than 1 gram but less than 15 grams of heroin) with intent to deliver, and one count of unlawful possession with intent to deliver within 1000 feet of Lathrop Elementary School.

         ¶ 4 Pertinent here, at trial, Chicago police officer John Sandoval testified that he had been assigned to the tenth police district for seven years and was familiar with the neighborhood around 3225 West Douglas Boulevard, having conducted surveillance or enforcement in that area "hundreds" of times and having "made about a hundred or so arrests there." On July 25, 2013, Sandoval, a tactical officer, conducted surveillance from an elevated position around the Douglas Boulevard location. Douglas Boulevard had a parkway between the eastbound and westbound lanes. Officer Jose Duran acted as an enforcement officer in a nearby car.

         ¶ 5 At about 11:40 a.m., Sandoval, using binoculars, saw two men standing together in the parkway at 3225 West Douglas Boulevard. One of the men was Toliver. His companion was shouting, "blows blows, " which Sandoval explained, is a street term for open-air narcotics sales of heroin. Sandoval watched as an unidentified man on a bicycle approached Toliver and briefly spoke with him. Toliver accepted "paper USC currency" from the man, walked to a nearby tree, picked up a small plastic bag from its base, withdrew a small white item from the bag, returned the bag to the tree base, and gave the white item to the unidentified man. The process was repeated a couple of minutes later with a second unidentified man. Sandoval's experience informed him that he had just witnessed two hand-to-hand narcotics transactions. Sandoval testified that the events occurred within 1000 feet of Lathrop Elementary School, which he described as "right around the corner" at 1440 South Christiana Avenue.

         ¶ 6 Sandoval notified Officer Duran by radio of what he had seen, and he described Toliver and his companion. Duran and another officer drove to the location and arrested Toliver and his companion. Duran recovered from the base of the tree the plastic bag, which contained 13 smaller clear Ziploc bags each containing a white powder substance. In Sandoval's experience, the smaller bags sold for $10 apiece and each bag would weigh about 0.4 gram. When arrested, Toliver possessed $20 in cash but no drugs.

         ¶ 7 Officer Jose Duran testified he had been assigned to the tenth police district for eight years and had conducted surveillance and made arrests in the area. Duran was familiar with some of the schools in the area and was familiar with the Lathrop Elementary School. Duran was shown a satellite overhead map of the general vicinity of 3225 West Douglas Boulevard in the tenth district. He circled a building designated in print on the map as "Lathrop Elementary School."

         ¶ 8 At trial, the parties stipulated to the fact that the distance between Toliver's activity and Lathrop Elementary School was 967 feet.

         ¶ 9 During closing argument, Toliver's trial counsel told the jury, "We agree that from where [Toliver] was arrested and the school is under a thousand feet." Counsel argued that it did not matter how far Toliver was from the school because he was not selling drugs.

         ¶10 The jurors received verdict forms of guilty and not guilty as to each of the two drug counts. They returned a guilty verdict for possession with intent to deliver and also a guilty verdict for possession with intent to deliver within 1000 feet of a school. The trial court merged the lesser count into the greater and sentenced Toliver to 10 years for possession with intent to deliver within 1000 feet of a school.

         ¶ 11 ANALYSIS

         ¶ 12 On appeal, Toliver does not challenge the jury's verdict that he possessed a controlled substance with intent to deliver. Rather, Toliver claims that the State had to prove beyond a reasonable doubt not only that the offense occurred within 1000 feet of Lathrop Elementary School but also-for the first time-that Lathrop Elementary School was used as a school on the date of the offense. The State responds that the testimony of the prosecution witnesses did establish that the offense took place within 1000 feet of a "school" and that the jury could reasonably infer the building was a school at the time of the offense. The State also presents the alternate argument that the issue whether the school was operational on the date of the offense was a foundational issue involving admissibility and not the sufficiency of the evidence.

         ¶ 13 Generally, we view a challenge to the sufficiency of the evidence on an element of the charged offense in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Amigon, 239 Ill.2d 71, 78 (2010). A reviewing court may overturn a jury's finding only by concluding that no rational trier of fact could have found the requisite elements of the offense proven beyond a reasonable doubt. Id.

         ¶ 14 Toliver's conviction for possession with intent to deliver heroin is a Class 1 felony. 720 ILCS 570/401(c)(1) (West 2012). The separate verdict finding that the drug offense occurred within 1000 feet of a school, a provision of the Illinois Controlled Substances Act (Act), elevated possession with intent to deliver ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.