                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Ortiz, 2012 IL App (2d) 101261




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOSE L. ORTIZ, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-1261


Filed                      June 20, 2012


Held                       Defendant’s conviction for unlawful delivery of a controlled substance
(Note: This syllabus       within 1,000 feet of a church was reversed on the ground the State failed
constitutes no part of     to prove beyond a reasonable doubt that the offense occurred within
the opinion of the court   1,000 feet of a building “used primarily for religious worship on the date
but has been prepared      of the offense,” since the officer who measured the distance did not
by the Reporter of         testify when the measurement was conducted or when photographs of the
Decisions for the          building were taken, no one testified the photographs accurately
convenience of the         represented the building as of the date of the offense and there was no
reader.)
                           testimony the church existed on the date of the offense.


Decision Under             Appeal from the Circuit Court of Kane County, No. 09-CF-2029; the
Review                     Hon. Allen M. Anderson, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                 Thomas A. Lilien and Kim M. DeWitt, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Kristin M. Schwind, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Presiding Justice Jorgensen and Justice Schostok concurred in the
                           judgment and opinion.



                                             OPINION

¶1           Following a bench trial, defendant, Jose L. Ortiz, was found guilty of unlawful delivery
        of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(1) (West
        2008)), unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2008)),
        and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)). The
        trial court sentenced defendant to six years in prison. Defendant timely appealed. Defendant
        argues that the State did not prove beyond a reasonable doubt that there was a church within
        1,000 feet of the site of the offense. Therefore, he asks that we reverse his conviction of
        unlawful delivery of a controlled substance within 1,000 feet of a church and remand for
        sentencing on his conviction of unlawful delivery of a controlled substance. For the reasons
        that follow, we affirm in part, reverse in part, and remand.

¶2                                        I. BACKGROUND
¶3          Defendant was charged with unlawful delivery of a controlled substance within 1,000
        feet of a church (720 ILCS 570/407(b)(1) (West 2008)), unlawful delivery of a controlled
        substance (720 ILCS 570/401(c)(2) (West 2008)), and unlawful possession of a controlled
        substance (720 ILCS 570/402(c) (West 2008)).
¶4          The relevant evidence presented at defendant’s bench trial established that, on January
        7, 2009, Elgin police officer Miguel Pantoja, while working undercover, purchased a quarter-
        ounce of cocaine from defendant. The transaction took place in Pantoja’s vehicle at the
        intersection of Bent and Liberty Streets in Elgin. Elgin police officer Craig Tucker had been
        assigned to assist Pantoja with the investigation concerning defendant. Shortly after the
        transaction had occurred, Tucker met with Pantoja, along with other officers involved in the
        investigation, at the police station for a “debriefing.” Pantoja gave the cocaine to Tucker,
        who processed it for evidence. To protect Pantoja’s identity, defendant was not arrested until
        six months later.


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¶5         Tucker was asked whether he had conducted any measurements with respect to the
       investigation. In response, Tucker testified that he measured the distance from the Emmanuel
       Baptist Church, located at 500 St. Charles Street in Elgin, to the location of the drug
       transaction. According to Tucker, the distance measured 705 feet. Using People’s exhibit No.
       2, an aerial photograph of the area, Tucker identified the location of the Emmanuel Baptist
       Church and the location of the drug transaction. Tucker identified People’s exhibit Nos. 3,
       5, 6, 7, 8, and 10 as photographs of the building located at 500 St. Charles Street. He
       identified People’s exhibit No. 9 as the sign in front of the building, which reads:
       “Emmanuel Baptist Church, Sunday worship 11:00 a.m. and Sunday school 9:30.” Finally,
       Tucker identified People’s exhibit No. 4 as a photograph of the intersection of Bent and St.
       Charles Streets and stated that the photograph accurately depicted the intersection on January
       7, 2009.
¶6         The trial court found defendant guilty of all three counts. Defendant filed a motion asking
       the court to reconsider its finding of guilty as to count I. Defendant argued that there was no
       evidence presented to establish that the building at issue was primarily used as a church. The
       court denied the motion. The court stated that it could reasonably infer from the photographs
       and the testimony that the building was in fact a church.
¶7         Following a sentencing hearing, the court merged counts II and III into count I and
       sentenced defendant to the minimum sentence of six years in prison. Defendant timely
       appealed.

¶8                                           II. ANALYSIS
¶9         Defendant argues only that the State did not prove beyond a reasonable doubt that there
       was a church within 1,000 feet of the site of the offense. We review claims of insufficient
       evidence to determine “ ‘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.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261
       (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A conviction will not be set
       aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt
       of the defendant’s guilt. Id. “[I]t is not the function of this court to retry the defendant.” Id.
       The trier of fact must assess the credibility of the witnesses and the weight of their testimony,
       resolve conflicts in the evidence, and draw reasonable inferences from that evidence, and this
       court will not substitute its judgment for that of the trier of fact on these matters. People v.
       Ortiz, 196 Ill. 2d 236, 259 (2001).
¶ 10       Section 401(c)(2) of the Illinois Controlled Substances Act (Act) (720 ILCS
       570/401(c)(2) (West 2008)) makes it a crime to deliver 1 gram or more but less than 15
       grams of any substance containing cocaine. A violation of section 401(c)(2) is a Class 1
       felony, which is punishable by a term of imprisonment of not less than 4 years and not more
       than 15 years. 730 ILCS 5/5-8-1(a)(4) (West 2008). Section 407(b)(1) of the Act enhances
       a section 401(c) (720 ILCS 570/401(c) (West 2008)) offense to a Class X felony if the
       violation occurs “within 1,000 feet of the real property comprising any church, synagogue,
       or other building, structure, or place used primarily for religious worship.” 720 ILCS


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       570/407(b)(1) (West 2008). A Class X felony is punishable by a term of imprisonment of not
       less than 6 years and not more than 30 years. 730 ILCS 5/5-8-1(a)(3) (West 2008).
¶ 11        The issue here is not simply whether the evidence established beyond a reasonable doubt
       that the building located at 500 St. Charles Street was a “church *** or other building ***
       used primarily for religious worship” (720 ILCS 570/407(b)(1) (West 2008)); rather, the
       issue is whether the evidence established beyond a reasonable doubt that the building was
       such a building on the date of the offense. We find that it did not. Tucker testified that he
       measured the distance from the drug transaction to the building located at 500 St. Charles
       Street. However, he did not testify to the date on which he conducted the measurement. In
       addition, there was no testimony presented to establish when the photographs of the building
       were taken. No witness testified that the photographs accurately represented the building as
       it appeared on the date of the offense. We have no way of knowing whether the Emmanuel
       Baptist Church existed on January 7, 2009. This is a fact that the State could have easily
       established by eliciting testimony from someone affiliated with the church. It failed to do so.
¶ 12        The cases relied on by the parties are not particularly instructive on this issue, because
       in each case the question was whether the building at issue, on any date, was a “church ***
       or other building *** used primarily for religious worship” (720 ILCS 570/407(b)(1) (West
       2008)). See People v. Foster, 354 Ill. App. 3d 564, 568 (2004) (finding that “a rational trier
       of fact could have inferred New Hope Church was a church used primarily for religious
       worship based on its name”); People v. Sparks, 335 Ill. App. 3d 249, 256-57 (2002) (finding
       that, where the sole purpose of the Salvation Army chapel was to conduct regular worship
       service, the jury could have reasonably concluded that the chapel was a “ ‘church’ ”). There
       was no question raised in either case concerning whether the building operated as such on
       the date of the offense.
¶ 13        In light of the foregoing, we hold that the State failed to prove beyond a reasonable doubt
       that defendant delivered 1 gram or more but less than 15 grams of any substance containing
       cocaine within 1,000 feet of property comprising a church.

¶ 14                                   III. CONCLUSION
¶ 15       Accordingly, we reverse defendant’s conviction of unlawful delivery of a controlled
       substance within 1,000 feet of a church. We thus restore and affirm defendant’s conviction
       of unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2008)). We
       remand for sentencing on that conviction.

¶ 16      Affirmed in part and reversed in part; cause remanded.




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