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                              Appellate Court                         Date: 2017.10.16
                                                                      15:56:10 -05'00'




                  People v. Church, 2017 IL App (5th) 140575



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ALBERT D. CHURCH, Defendant-Appellant.



District & No.    Fifth District
                  Docket No. 5-14-0575



Filed             June 15, 2017



Decision Under    Appeal from the Circuit Court of Effingham County, No. 14-CF-25;
Review            the Hon. Allan F. Lolie, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Ellen J. Curry, and Ian C. Barnes, of State
Appeal            Appellate Defender’s Office, of Mt. Vernon, for appellant.

                  Bryan M. Kibler, State’s Attorney, of Effingham (Patrick Delfino,
                  David J. Robinson, and Patrick D. Daly, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE GOLDENHERSH delivered the judgment of the court, with
                  opinion.
                  Justices Cates and Barberis concurred in the judgment and opinion.
                                             OPINION

¶1       After a stipulated bench trial in the circuit court of Effingham County, defendant, Albert
     D. Church, was convicted of unlawful delivery of a controlled substance (heroin) under an
     accountability theory (720 ILCS 570/401(d)(i) (West 2012)) and sentenced to three years and
     six months in the Department of Corrections to be followed by two years of mandatory
     supervised release. The issues raised on appeal are (1) whether defendant was proven guilty
     of delivery of a controlled substance by accountability beyond a reasonable doubt and (2)
     whether defendant knowingly and voluntarily waived his right to a jury trial. We affirm.

¶2                                         BACKGROUND
¶3        Jessica James, age 29, died as the result of a heroin overdose on February 5, 2014. Jay
     Miller (Jay), defendant’s roommate, sold the heroin to James on February 4, 2014. On
     February 12, 2014, defendant was charged by information with one count of delivery of a
     controlled substance on a theory of accountability after a police investigation revealed that
     defendant was involved in arranging the heroin purchase between James and Jay. Defendant
     was later charged by indictment with the same count. Defendant entered a written plea of not
     guilty and a demand for a speedy trial.
¶4        On June 27, 2014, the State filed a second count, charging defendant with criminal drug
     conspiracy (720 ILCS 570/405.1 (West 2012)). On August 28, 2014, defendant stated on the
     record that he waived his right to a jury trial as he simultaneously signed a waiver. The
     prosecutor stated that as “part of the consideration that [defendant] used in waiving his jury
     trial right was that the People were going to dismiss Count 2, and the trial before your Honor
     will solely be on Count 1.” On September 17, 2014, the case proceeded via a stipulated
     bench trial.
¶5        Defendant admitted that his roommate, Jay, supplied heroin to James. The only point of
     contention during the stipulated trial was whether defendant was accountable for Jay’s
     delivery of the heroin to James. The State submitted six exhibits.
¶6        People’s Exhibit No. 1 contains the stipulated facts. People’s Exhibit No. 2 is a series of
     screen shots of Facebook conversations between a Facebook account in the name of Jessica
     James and an account in the name of defendant. People’s Exhibit No. 3 shows incoming and
     outgoing calls and text messages from defendant’s phone and includes communications
     between him, James, Jay, and Jay’s girlfriend, Tomeka Price. People’s Exhibit No. 4 is a map
     of central Illinois between Effingham and Decatur and shows the digital pinging of
     Christopher Miller’s (Christopher) phone between the two cities on February 4, 2014.
     Christopher gave a stipulated statement that he and Jay (no relation) went to Decatur on
     February 4, 2014, purchased heroin, and then returned to Effingham. People’s Exhibit No. 5
     is the transcript of defendant’s interview with police that took place on February 7, 2014.
     People’s Exhibit No. 6 is a DVD copy of the interview.
¶7        The State introduced Facebook conversations that took place between defendant and
     James, dating back to April 2013. Several of the conversations revolve around James’s
     attempts to procure drugs. For example, in July 2013, the following conversation occurred
     between defendant and James:
                  “[James:] can u get anything? Like pills, etc?


                                                -2-
                 [Defendant:] hold on let me ask some ppl
                 [James:] omg please
                 [Defendant:] wait what kind lol
                 [James:] dros
                 or anything reall[y]
                 vikes
                 downers
                 [Defendant:] right on I just didn’t know up or down
                 [James:] yep down
                 or h possibl? Ahh need something
                 do u still have my number also?
                 217-825-***
                 [Defendant:] yea I lost it when I got a new phone
                 [James:] whats your new one
                 [Defendant:] 217-663-***
                 Well the two ppl that responded 2 me cant get anything
                 [James:] i know... i cant find anyone either
                 Well let me know if u do please
                 [Defendant:] i will fo sho”
     During his interview with police on February 7, 2014, defendant admitted that the initial “h”
     set forth above was short for heroin and that James was asking specifically for heroin.
¶8       In September 2013, James again contacted defendant via Facebook and asked, “Do u
     know anyone that has pills right now[?]” Defendant did not respond online to James’s
     request. On February 1, 2014, James contacted defendant about getting drugs, and the
     following online conversation occurred:
                 “[Defendant:] yes I wont get it tonight but my buddy goes up 2 decator [sic] and
             gets some prity [sic] frequently
                 ....u lookin 4 h again?
                 [James:] omg I love u and yes
                 Ill [sic] be getting a big check soon
                 Tell him u know me I have lost all my connects it sucss [sic]
                 [Defendant:] I got a new phone text me your number 217 240 ***”
     James then texted defendant her number and asked defendant whether he received her text.
¶9       The police searched defendant’s cell phone pursuant to a search warrant and found a
     number of texts between James’s phone and defendant’s phone. There were also a number of
     telephone calls corresponding with text messages from James. Between 10 p.m. on February
     1, 2014, and 12:34 a.m., there were several text messages between defendant’s phone and
     James’s phone. Many of the texts were from James, informing defendant that he was her only
     hope for obtaining drugs. At 11:18 p.m., defendant texted James that his drug connection
     “[d]oes not have the money to get it[;] you would have to pay for it.” James replied that she
     would give him the money but would feel better going with the connection so she would not


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       get cheated out of her money. At 12:34 a.m., James texted defendant and asked him to let her
       know when the contact wanted to go. At 12:37, defendant responded, “I will tomorrow.”
¶ 10        At 8:42 a.m. on February 2, 2014, defendant sent a text to “Doober” and stated, “Hey
       what’s up man? Do you know where I could score a gram of k.” At 10:34 a.m., defendant
       texted a phone number with a 217 area code and stated, “Hey whats up Blake this is church
       can I get a gram[?]” James texted defendant a few more times throughout the day in an
       attempt to get a drug connection through him.
¶ 11        On February 3, 2014, at 2:07 p.m., defendant sent James a phone number via text
       message and told her to “talk to this guy its jay.” James responded, “Does he know ill [sic] be
       calling.” Defendant replied, “Yes.” At 8:30 p.m., James texted defendant, “I texted him hvent
       [sic] heard nuthin [sic].” At 11:10 p.m. defendant texted James asking her if she got in
       contact with Jay.
¶ 12        The stipulated facts indicate that Tomeka Price had been dating Jay for a few of weeks at
       the time of James’s death. While Price was aware Jay used heroin, she did not approve of it.
       Price said Jay either spent time with her or lived at an apartment with defendant. According
       to Price, Jay did not have a valid license, a vehicle, or a cell phone, and he frequently used
       her cell phone while she was at work.
¶ 13        On February 4, 2014, Price took lunch to Jay at the apartment he shared with defendant.
       Jay told Price he had to help a girl, which turned out to be James. Price took Jay to 507
       Illinois Avenue where James exited the residence and got into Price’s car. Price drove James
       and Jay to a bank. James entered the bank alone and returned a short time later.
¶ 14        Bank records show James withdrew $50 from her account. James did not have sufficient
       funds, so the bank accepted a counter check after James agreed to pay an overdraft fee. The
       counter check was time stamped at 2:15 p.m. After James exited the bank, Price drove James
       and Jay back to James’s residence. Jay and James went inside the house. While Price was
       waiting for Jay to return, she received a text from defendant, asking her to take him to work.
       Price complied. When she returned to James’s house, Jay exited, and he was sweating. From
       past experience, Price knew Jay sweated when he used heroin.
¶ 15        The stipulated facts show that Christopher would testify that text messages on his phone
       from Tomeka Price’s phone were actually communications between him and Jay.
       Christopher drove Jay to Decatur numerous times to buy heroin because Jay did not have a
       driver’s license. Christopher drove Jay to Decatur to purchase heroin on February 4, 2014.
       Christopher saw the heroin Jay purchased. Christopher had a previous conviction for heroin
       delivery with a pending petition to revoke probation and a pending charge of home invasion.
       For his cooperation with the case against defendant, the State promised Christopher the
       minimum sentence for a guilty plea in the home invasion case.
¶ 16        The police interviewed defendant on February 7, 2014, after James died. After police
       showed defendant Facebook messages and text messages, defendant acknowledged that he
       gave James the phone number of a guy who travels to Decatur to purchase drugs. Defendant
       refused to identify the purchaser of the heroin. Defendant said the police could look at his
       phone and figure it out, but he did not want to be “a snitch.” Officer Stephens specifically
       asked defendant, “So how did you hook her up to the guy? If you didn’t go along how did
       you hook her up to him?” Defendant replied, “I called the guy, I called [James] and told her
       who to call.” Later in the interview defendant specifically stated, “Well, I was involved
       because I introduced [James] to a heroin dealer.”

                                                  -4-
¶ 17        After considering the stipulated evidence, the trial court found defendant guilty beyond a
       reasonable doubt of delivery of a controlled substance by accountability. Defendant filed a
       motion for acquittal or, in the alternative, a new trial. The trial court denied the motion. The
       parties made a joint sentencing recommendation of three years and six months in prison. The
       trial court sentenced defendant to that amount of time to be followed two years mandatory
       supervised release. Defendant now appeals his conviction.

¶ 18                                              ANALYSIS
¶ 19                                    I. Sufficiency of the Evidence
¶ 20        The first issue raised on appeal is whether defendant was proven guilty of delivery of a
       controlled substance by accountability beyond a reasonable doubt. Defendant contends the
       evidence was insufficient to prove beyond a reasonable doubt that he aided, abetted,
       solicited, agreed, or attempt to aid another in the commission of the crime. He further
       contends the State failed to prove he possessed the concurrent, specific intent to promote or
       facilitate the commission of the offense. We disagree.
¶ 21        Where, as here, a defendant argues that the evidence was insufficient to sustain his
       conviction, the question is whether, after viewing the evidence in the light most favorable to
       the State, any rational trier of fact could have found the defendant guilty beyond a reasonable
       doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005). In reviewing the sufficiency of the
       evidence, it is not our job to retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999).
       It is the function of the finder of fact to assess the credibility of the witnesses, weigh and
       resolve any conflicts in the evidence, and draw reasonable conclusions from the evidence.
       People v. Williams, 193 Ill. 2d 306, 338 (2000).
¶ 22        In the instant case, defendant was tried under the theory that he was accountable for the
       actions of Jay, who sold James the heroin that ultimately killed her. In order for a defendant
       to be convicted under an accountability theory, the State must prove beyond a reasonable
       doubt that he or she (1) solicited, aided, abetted, agreed, or attempted to aid another person in
       the planning or the commission of the offense; (2) did so before or during the commission of
       the offense; and (3) did so with the concurrent, specific intent to promote or facilitate the
       commission of the offense. 720 ILCS 5/5-2(c) (West 2012); People v. Snowden, 2011 IL App
       (1st) 092117, ¶ 58. A defendant may be found guilty on an accountability theory if the State
       establishes beyond a reasonable doubt that the defendant shared the criminal intent of the
       principal or that there was a common design or scheme. People v. Perez, 189 Ill. 2d 254, 266
       (2000).
¶ 23        A defendant’s intent may be inferred from the nature of his or her actions and the
       circumstances surrounding the criminal conduct. Id. “Accountability focuses on the degree of
       culpability of the offender and seeks to deter persons from intentionally aiding or
       encouraging the commission of offenses.” (Emphasis in original.) Id. at 268. “Thus, ‘[u]nless
       the accomplice intends to aid in the commission of a crime, no guilt will attach.’ ” (Emphasis
       in original.) Id. (quoting People v. Shaw, 186 Ill. 2d 301, 322 (1998)).
¶ 24        In finding defendant guilty, the trial court specifically stated as follows:
                “The Court must find beyond a reasonable doubt that Jay Miller did deliver a
                controlled substance, that being heroin ***, to [James]. Based on all the evidence the



                                                   -5-
               Court reviewed, the Court does find that delivery, beyond a reasonable doubt did
               occur.
                   The next issue is whether this Defendant, before or during the offense with the
               intent to promote or facilitate this offense, knowingly solicited, aided, abetted, agreed
               to aid, or attempted to aid the person in the commission of the offense. That person,
               of course, being Jay Miller.
                   Defense counsel argues that this is a situation where his friend merely called him
               and said, help me find some heroin[ ]. And he just said he was doing a friend a favor.
               Of course, I’m paraphrasing.
                   The Defendant received no money. It’s un-rebutted and stipulated for this
               transaction. It’s also not in dispute that the Defendant never touched the heroin[ ] at
               issue in this case.
                   Had the Defendant simply told Miss James my friend has heroin[ ]. Go talk to
               him. I may agree with the Defendant. That may not have been enough to make him
               accountable. That is not the case here. The Defendant told Miss James that Jay Miller
               frequently had heroin[ ] and, in fact, called Jay Miller to tell him to expect Miss
               James’s call.
                   The stipulated evidence in this case was that the phone calls between Defendant’s
               phone and Miss James’s phone were made by Jay Miller using Defendant’s phone,
               and I accept that being true that that was the case. That it was actually Mr. Miller
               using Defendant’s phone. However, I see that that does nothing to mitigate the
               culpability of the Defendant. The Defendant was aware that the two were engaging
               and arranging a delivery of a controlled substance.
                   I do find, therefore, beyond a reasonable doubt, the Defendant’s actions under the
               statute as read, do constitute aiding, agreeing to aid, and attempting to aid Mr. Miller
               in the planning or commission of the offense at issue here and find him guilty of
               Count I, delivery of a controlled substance.”
       After careful consideration, we agree with the trial court’s analysis.
¶ 25       The stipulated evidence showed that Jay and defendant were roommates. Jay was a
       known heroin addict. Defendant and James were friends who communicated not only by
       Facebook, but also by text. As early as April 2013, James began asking defendant to help her
       procure drugs, including heroin. In the days leading up to her death, James contacted
       defendant numerous times, seeking his help in obtaining drugs. On February 1, 2014,
       defendant and James participated in an online Facebook conversation during which
       defendant specifically asked James if she was looking for heroin. James replied, “omg I love
       u and yes.” Defendant told James about his friend who frequently drives to Decatur for
       drugs. Defendant gave James his new phone number and asked James to text her phone
       number to his new cell number. James complied.
¶ 26       Thereafter, defendant sent James a text message in which he explained that his drug
       connection did not have the money to buy drugs, and the only way a deal could be worked
       out if was James would pay before delivery. On February 3, 2014, defendant sent James a
       text message in which he gave her Jay’s phone number and told her to “talk to this guy its
       jay.” James then wanted to know if Jay was aware she would be calling, and defendant said,
       “Yes.” Later that evening, James texted defendant and said she texted Jay, but she had not


                                                   -6-
       heard anything. A few hours later, defendant followed up with a text to James asking her
       whether she was able to get in contact with Jay.
¶ 27       Pursuant to the stipulated facts, Christopher confirmed he drove Jay to Decatur on the
       morning of February 4, 2014, where Jay purchased heroin. Jay’s girlfriend, Tomeka Price,
       would testify that she drove James to the bank to withdraw money. Price left Jay at James’s
       house, and when she returned, she believed that Jay had used heroin because he was
       sweating, which he normally did after using heroin.
¶ 28       When defendant was interrogated by the police, he refused to give the police Jay’s name
       because he did not want to be a “snitch.” However, he knew the police could determine who
       sold the heroin to James by looking at his phone and reviewing his text messages, phone
       calls, and Facebook messages. When all the evidence is considered in the light most
       favorable to the State, it shows that the drug transaction that ended up costing James her life
       could not have occurred without defendant’s involvement.
¶ 29       Defendant talked to both Jay and James and arranged for James to call Jay. If defendant
       had not supplied James with Jay’s phone number, the drug transaction would not have
       occurred. Contrary to defendant’s assertions, his involvement goes beyond the courtesy of
       informing his roommate that he had given his telephone number to someone with whom he
       was not acquainted, and she might be calling.
¶ 30       The evidence shows James was frantic to find a drug connection. Defendant was well
       aware that he was connecting James and Jay for the sole purpose of James purchasing drugs,
       specifically heroin. Defendant admitted to police he was involved in the crime, specifically
       stating, “Well, I was involved because I introduced [James] to a heroin dealer.” Under these
       circumstances, there was sufficient evidence for any rational trier of fact to find defendant
       guilty.

¶ 31                                     II. Waiver of Jury Trial
¶ 32        The other issue raised by defendant on appeal is whether he knowingly and voluntarily
       waived his right to a jury trial. Defendant argues we should reverse and remand for a new
       trial because he did not make a knowing and intelligent waiver of his right to a jury trial as he
       only agreed to waive his right to a jury trial in exchange for the dismissal of a criminal drug
       conspiracy count and was not informed he could not be convicted of that count. The State
       replies that the benefit defendant derived from having one count dismissed was not illusory
       as defendant asserts; rather, defendant received a tangible benefit in exchange for his jury
       waiver. The State further replies that even if defendant’s jury trial waiver was illusory, the
       record fails to show that the “concession” was the principal or motivating factor for waiving
       the jury.
¶ 33        Before we address the merits of this issue, we note that defendant acknowledges he
       waived the issue by failing to object during the trial or failing to raise the issue in a posttrial
       motion; nevertheless, defendant’s forfeited claim is reviewable under a plain error analysis.
       People v. Bracey, 213 Ill. 2d 265, 270 (2004). However, before considering defendant’s
       claim under a plain error analysis, we must first determine whether error occurred. People v.
       Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 34        Our federal and state constitutions both guarantee a criminal defendant’s right to a trial
       by jury. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. A defendant may


                                                    -7-
       waive this right by knowingly and understandingly waiving it in open court. 725 ILCS
       5/103-6 (West 2012); Bracey, 213 Ill. 2d at 269-70. There is no specific admonishment or
       advice the court must provide prior to accepting a waiver. People v. Bannister, 232 Ill. 2d 52,
       66 (2008). The effectiveness of a defendant’s waiver depends on the particular facts and
       circumstances of each case. Id. The critical determination is whether the waiving defendant
       understood his case would be decided by a judge rather than a jury. Id. at 69. Whether a
       defendant knowingly waived his right to a jury trial is subject to de novo review. Bracey, 213
       Ill. 2d at 270.
¶ 35        In support of his contention that he did not knowingly waive his right to a jury trial,
       defendant specifically relies on Bracey. In Bracey, the defendant knowingly waived his right
       to a jury trial after extensive admonishments by the trial court. Id. at 267. Following a trial,
       the trial court granted the defendant’s motion for a new trial. Id. at 267-68. Before the
       defendant’s second trial, the court announced it was ready to begin a second bench trial, and
       neither the defendant nor his attorney objected. Id. at 272-73. Our supreme court reasoned
       that the defendant’s initial waiver ended with the first trial, and he was erroneously led to
       believe his initial waiver obligated him to a bench trial in the second trial. Id. Bracey,
       therefore, stands only for a limited proposition that when a defendant is retried, he must make
       a new waiver of his right to a jury trial. People v. Reed, 2016 IL App (1st) 140498, ¶ 10.
       Because the instant case does not present a retrial situation, defendant’s reliance on Bracey is
       misplaced.
¶ 36        Additionally, we are unconvinced by defendant’s argument that he received no benefit
       from having one of the charges dropped. Even though defendant could not have been
       convicted of both the inchoate offense (criminal drug conspiracy) and the principal offense
       (delivery of a controlled substance), he could have been found guilty of one or both of the
       charges. The charges, while similar, are not identical. See 720 ILCS 570/401(d)(i), 405.1
       (West 2012). As the State points out, a conflicted jury might decide to find defendant guilty
       of one charge and not the other. Thus, defendant’s chances of an acquittal were better facing
       only one charge rather than two.
¶ 37        Even assuming arguendo that defendant received no benefit from the State dropping the
       criminal drug conspiracy charge, defendant has failed to convince us that he would not have
       waived a jury trial. In support of our determination, we first point to the prosecutor’s
       statement on the record that the dismissal of one count was only “part of the consideration”
       defendant relied on in waiving his right to a jury trial. (Emphasis added.) Neither defense
       counsel nor defendant objected to that characterization.
¶ 38        Second, there are clearly benefits to having the case tried before the court rather than a
       jury. For example, defendant moved for a change of venue based on pretrial publicity.
       Defendant alleged extensive pretrial publicity prevented him from receiving a fair trial in
       Effingham County. Attached to that motion were 36 news articles concerning not only
       James’s overdose, but also the resulting charges against defendant and others. In light of the
       trial court’s denial of that motion, defendant may have considered a bench trial more
       advantageous because a bench trial, rather than a jury trial, would tend to reduce any
       prejudice caused by pretrial publicity.
¶ 39        Finally, the record shows the trial court specifically asked defendant whether, after
       consulting with his attorney, it was his desire to give up his right to a jury trial, and defendant
       stated on the record it was his desire. Defendant acknowledged that he was not threatened by

                                                    -8-
       anyone nor was he promised anything in addition to what the judge told him in order to get
       him to waive his right to a jury trial. As defendant was signing a jury waiver form, the trial
       court stated, “One other thing, sir, before you finish signing that, once you’ve waived your
       jury trial, you can’t come back and say Judge, I wish I wouldn’t have done that, I really want
       a jury trial. Do you understand that?” Defendant replied in the affirmative. Thus, the record
       before us clearly shows that defendant was well aware his case would be decided by a judge
       rather than a jury.
¶ 40       Considering defendant’s waiver, his colloquy with the trial court, and the particular facts
       and circumstances surrounding this case, we find defendant knowingly and voluntarily
       waived his right to a jury trial. Because we find no error occurred, there can be no plain error.
       See People v. Lopez, 2012 IL App (1st) 101395, ¶ 64.

¶ 41                                       CONCLUSION
¶ 42       For the foregoing reasons, we find sufficient evidence in the record for the trial court to
       find defendant guilty of unlawful delivery of a controlled substance under an accountability
       theory. We further find defendant’s waiver of a jury trial was knowing and valid.
       Accordingly, we affirm the judgment of the circuit court of Effingham County.

¶ 43      Affirmed.




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