Court of Appeals of Illinois, First District, Second Division
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.
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.
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
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.
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
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.
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 ...