                                                                         Digitally signed by
                       Illinois Official Reports                         Reporter of Decisions
                                                                         Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                              Appellate Court                            Date: 2016.12.05
                                                                         09:41:47 -06'00'




                  People v. Toliver, 2016 IL App (1st) 141064



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



District & No.    First District, Second Division
                  Docket No. 1-14-1064



Filed             August 9, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-15993; the
Review            Hon. Mary Margaret Brosnahan, Judge, presiding.



Judgment          Affirmed; mittimus corrected.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Sharon Goott Nissim, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Clare Wesolik Connolly, and Whitney Bond, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             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

¶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



                                                 -2-
       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 from a Class 1 felony to a Class X felony. 720 ILCS
       570/401(c)(1), 407(b)(1) (West 2012).
¶ 15        The Act neither defines what is included in school property nor indicates what proof is
       required to establish the existence of school property. No statute defines “school” in terms of
       its function or use. But, in section 407(b)(2) of the Act (720 ILCS 570/407(b)(2) (West 2012)),
       the legislature intended the words “any school” to refer to “any public or private elementary or
       secondary school, community college, college or university.” (Internal quotation marks
       omitted.) People v. Goldstein, 204 Ill. App. 3d 1041, 1048 (1990). Essentially the same
       definition for “school” appears in the Criminal Code of 2012. 720 ILCS 5/2-19.5 (West 2012).
¶ 16        In support of his claim, Toliver relies on cases involving narcotics offenses committed
       within 1000 feet of a church. Toliver refers us to People v. Cadena, 2013 IL App (2d) 120285,
       involving narcotics offenses which took place within 1000 feet from a church. The appellate


                                                   -3-
       court found the State failed to prove that the “Evangelical Covenant Church” was being used as
       a church on the date of the offense. People v. Ortiz, 2012 IL App (2d) 101261, ¶¶ 5, 11-12, also
       cited by Toliver, held that a police officer’s testimony of the distance between the drug offense
       and the church without any “temporal context” and undated photos of a sign on the church
       announcing its hours of worship were insufficient proof that the church was operational at the
       time of the offense. These cases do not help Toliver for two reasons.
¶ 17       First, all six subsections of section 407(b) (720 ILCS 570/407(b) (West 2012)), enhance
       the penalty for prohibited drug violations occurring “within 1,000 feet of the real property
       comprising any church, synagogue, or other building, structure, or place used primarily for
       religious worship.” (Emphasis added.) No similar requirement exists with respect to a
       school—that the building, structure, or place must be used primarily as a school.
¶ 18       Second, section 407(c) specifically states: “Regarding penalties prescribed in subsection
       (b) for violations committed in a school or on or within 1,000 feet of school property, the time
       of day, time of year and whether classes were currently in session at the time of the offense is
       irrelevant.” 720 ILCS 570/407(c) (West 2012). No similar saving clause appears in section 407
       for churches or houses of worship. It is reasonable to infer that many school buildings are not
       in use for their intended purpose in the summer vacation months, weekends, or holidays.
       Nevertheless, they are still “schools” for purposes of the enhancement factor. As this court
       noted in People v. Daniels, 307 Ill. App. 3d 917, 929 (1999), “children tend to congregate on
       school property even when school is not in session.”
¶ 19       The dissent refers to a website announcing that Lathrop Elementary School at 1440 South
       Christiana Avenue closed at the end of the 2011-12 school year and concludes that on the date
       of the offense, July 25, 2013, there was no Lathrop Elementary School. The dissent asserts
       that, while the State was not required to prove that the school was in session on the date of the
       offense, the State still was required to prove the school existed and was “active” on that date.
       (The dissent favors the term “active” over Toliver’s use of the term “operational.”) The dissent
       concludes that the evidence was insufficient to prove the essential enhancing element.
¶ 20       But, the dissent’s focus on the fact that students no longer attend Lathrop Elementary
       School ignores Lathrop Elementary School’s identity as a school, which remains intact.
       Among the indicia are Lathrop’s (i) ownership and maintenance (Chicago Public Schools of
       which we may take judicial notice, just as does the dissent has taken judicial notice), (ii)
       purpose, (iii) design, (iv) site characteristics (including school grounds), and (iv) its recognized
       place within the surrounding neighborhood, as testified to by two State witnesses.
¶ 21       On the date of the offense, the building at 1440 South Christiana Avenue, as the State
       established, was known as “Lathrop Elementary School.” Whether closed to students,
       temporarily or permanently, the structure still exists as a school building to draw neighborhood
       children to its premises. And, its current status has no consequence; otherwise, it would have
       been pointless for the legislature to have decreed that “the time of day, time of year, and
       whether classes were currently in session at the time of the offense is irrelevant.” The
       legislation sought to prevent illicit drug transactions from taking place where children
       congregate. Children may be attracted to school property at all hours of the day, at all times of
       the year, whatever its status.
¶ 22       The dissent presents a strawman hypothetical—Navy Pier was once home of a two-year
       undergraduate branch of the University of Illinois and, under our reasoning, would still be


                                                    -4-
       considered a school. This does not advance the dissent’s argument because Navy Pier was then
       and is now a pier and was not then and is not now a school building.
¶ 23        As Toliver concedes, the State need not establish “the time of day, time of year and
       whether classes were currently in session at the time of the offense is irrelevant.” Toliver was
       tried by a jury, and the jury was so instructed. Without defense objection, the trial court gave
       Illinois Pattern Jury Instructions, Criminal, No. 17.20 (4th ed. 2000) (hereinafter, IPI Criminal
       4th). That instruction informed the jury that to establish the enhancement factor, it must be
       proven “[t]hat the possession with intent to deliver took place on a public way within 1000 feet
       of the real property comprising a school regardless of the time of day time of year whether
       classes were currently in session at the time.” Id. Nothing instructed that the jury must find the
       school was “operational” or “active” on July 25, 2013, the date of the offense. The
       enhancement factor seeks to avoid exposing children to narcotics transactions conducted at or
       near schools. IPI Criminal 4th No. 17.20 was offered and given without objection by the
       defense and informed the jury that the school need not have been in session on the day or even
       the time of year when the offense occurred.
¶ 24        In addition to Cadena and Ortiz, Toliver relies on Boykin, 2013 IL App (1st) 112696.
       There, the defendant was convicted in a bench trial of delivery of a controlled substance within
       1000 feet of a school. A panel of this court on which the dissenter participated concluded that
       the evidence at trial was insufficient to establish beyond a reasonable doubt that Our Lady of
       Peace was a school. In Boykin, defendant argued on appeal that the school, Our Lady of Peace,
       closed nine years before the offense and asked for judicial notice of three newspaper articles
       and a news release from the archdiocese of Chicago relating to the school’s closure. The panel
       declined to take judicial notice of these items, which had not been presented to or considered
       by the trial court. Similarly, we decline to consider in this appeal the newspaper article on
       school closures cited by Toliver, which he did not present to the trial court. Where an argument
       involves matters outside of our record, we cannot properly address it on direct appeal. People
       v. Manning, 334 Ill. App. 3d 882, 893-94 (2002) (citing People v. Woolley, 178 Ill. 2d 175, 204
       (1997)).
¶ 25        The Boykin opinion hinged in part on Cadena, where no evidence denoted how the
       testifying officer would have known the structure was an active church on the dates of the
       offenses. In Boykin, two police officers testified the drug transaction took place within 1000
       feet of “a school,” but no evidence was presented to show how those officers had personal
       knowledge of the building on the date of the offense. They did not testify they lived in the area
       or regularly patrolled the neighborhood to allow an inference they had personal knowledge of
       the building. Boykin, 2013 IL App (1st) 112696, ¶ 15. In addition, the evidence failed to show
       that the building’s name included any “signifier” to identify it as a school, e.g., Our Lady of
       Peace School. Id. ¶ 16.
¶ 26        Contrary to the dissent’s repeated mischaracterizations, the evidence before us differs
       significantly. Officer Duran testified that he had been assigned to the tenth district for eight
       years, had conducted surveillance and made arrests in the area, and was familiar with some of
       the schools in the area of the tenth police district, including Lathrop Elementary School. On an
       overhead map showing the general vicinity of 3225 West Douglas Boulevard, Duran circled
       the school building, which was labeled “Lathrop Elementary School.” Officer Sandoval, who
       had been assigned to the tenth district for seven years, also testified to his familiarity with the
       school’s neighborhood, having conducted surveillance or enforcement around 3225 West

                                                    -5-
       Douglas Boulevard “hundreds” of times and having “made about a hundred or so arrests
       there.” He knew from his personal knowledge that Lathrop Elementary School was half a
       block north and one block east of where he witnessed the narcotics sales.
¶ 27       Did the testimony of Sandoval and Duran raise the reasonable inference that the structure
       was a school? Reasonable inferences, unlike speculation, depend on the facts in evidence and
       may support a criminal conviction. “An inference is ‘a conclusion as to the existence of a
       particular fact reached by considering other facts in the usual course of human reasoning.’ ”
       People v. Steading, 308 Ill. App. 3d 934, 940 (1999) (quoting Michael H. Graham, Cleary and
       Graham’s Handbook of Illinois Evidence § 302.2, at 93 (7th ed. 1999)). When we look at the
       evidence in the light most favorable to the State, as we must, the reasonable inference drawn
       from Sandoval’s and Duran’s testimony indicates that the property indeed is a school.
¶ 28       In affirming a defendant’s conviction on two counts of unlawful delivery of a controlled
       substance within 1000 feet of a church, in People v. Sims, 2014 IL App (4th) 130568, the
       appellate court properly relied on a State witness, a police officer, who testified he had been in
       Bloomington for 10 years and was assigned to the narcotics unit during the past 5½ years. He
       stated that for as long as he could remember, the building had been a church. Id. ¶ 134. The
       appellate court noted that the officer’s occupation required “spending a lot of time on the
       streets” and “keeping an eye on neighborhoods.” Id. ¶ 138. Accordingly, “a rational trier of
       fact could have believed [the officer’s] testimony that he was familiar with the neighborhood
       *** and that the building at that address was in use as a church on the dates of the drug
       offenses.” Id. See also People v. Morgan, 301 Ill. App. 3d 1026 (1998) (in prosecution for
       unlawful delivery of controlled substance within 1000 feet of public park, police officer’s
       familiarity with community sufficient to allow him to testify about status of park).
¶ 29       On appeal, Toliver argues for the first time that the testimony of officers Sandoval and
       Duran was insufficient to prove that Lathrop Elementary School was operating on the date of
       the offense. Toliver asserts that the State could have proved that the building was operating as
       a school by stipulation or by testimony from a “qualified witness” familiar with the school’s
       status, such as the school principal or school district superintendent. The State contends that,
       while Toliver presents his appeal as a challenge to the sufficiency of the evidence, it is more
       properly characterized as an argument for lack of proper foundation to admit the testimony of
       the officers on whether the building was actually a school. Requiring the use of a “qualified
       witness” is a claim for adequate foundation, an evidentiary issue subject to forfeiture on
       review. See People v. Woods, 214 Ill. 2d 455, 470 (2005). The State asserts this is a theory that
       Toliver did not advance at trial, and even more tellingly, at trial the defense conceded Toliver
       was within 1000 feet of a school when he committed the offense.
¶ 30       We agree with the State. Through stipulation and concession to the jury, Toliver waived
       the State’s obligation to prove that Lathrop Elementary School was in fact operating as a
       school on the date of the offense. In closing argument, the prosecutor reminded the jury that the
       parties had stipulated to the distance between Toliver’s activity and Lathrop Elementary
       School being 967 feet. Defense counsel’s closing argument responded in relevant part to that
       argument:
                   “Now lastly this one thousand feet. What counsel states is correct. We agree that
               from where Marcus was arrested and the school is under a thousand feet. What we
               don’t agree on[,] Marcus wasn’t out there selling drugs. Marcus could have been


                                                   -6-
                arrested in front of the school. It doesn’t matter. He wasn’t selling drugs. The footage
                between where he was arrested and the school is irrelevant.”
¶ 31       Defense counsel’s concession, that Toliver was within 1000 feet of “the school” on the date
       he was arrested, had the same effect as the parties’ stipulation—it removed from dispute the
       issue of the location of the offense as an enhancing factor. “A criminal defendant may waive,
       by stipulation, the need to prove all or part of the case that the State has brought against him.”
       People v. Washington, 343 Ill. App. 3d 889, 900 (2003). See also People v. One 1993 Lexus,
       367 Ill. App. 3d 687, 691 (2006) (citing People v. Rucker, 346 Ill. App. 3d 873, 892 (2003)).
       By conceding the issue, counsel demonstrated the intent of the defense to eliminate that issue
       from the case and focus on another aspect of the defense—that Toliver was doing nothing
       illegal while in close proximity to the school. It is well-settled that a party forfeits his or her
       right to complain of an error on appeal where to do so would be inconsistent with his or her
       position in the trial court. In re E.S., 324 Ill. App. 3d 661, 670 (2001) (citing McMath v. Kaholi,
       191 Ill. 2d 251, 255 (2000)). Toliver has forfeited his right to challenge that part of the State’s
       case, which he conceded in the trial court.
¶ 32       The dissent suggests that the “practical effect” of our decision will be “to allow the Class X
       enhancement where a sale occurs within 1000 feet of vacant, unoccupied buildings that a
       witness calls a school without any proof that students go to that location to be educated.”
       Again, whether the school is “active” or “operational” is irrelevant because the statute does not
       require proof that the school is “active” or “operational.” Toliver stipulated and conceded that
       what the dissent calls a “vacant, unoccupied building” was a vacant, unoccupied school
       building, and two witnesses testified for the State that it was a school building. Under the
       doctrine of invited error, an accused may not stipulate at trial that a school is a school and then
       argue on appeal that the stipulation was in error. People v. Harvey, 211 Ill. 2d 368, 385 (2004);
       People v. Carter, 208 Ill. 2d 309, 319 (2003). The “practical effect” of the dissent is to rewrite
       the statute by incorporating new elements and by making the State prove, after the rewrite, that
       the school is “active” or “operational.”
¶ 33       We conclude the evidence at trial established beyond a reasonable doubt the sentence
       enhancement provision, namely, that Toliver committed the drug offense within 1000 feet of a
       school and the State was not required to prove that the school was “operational” or “active” on
       the date of the offense.

¶ 34                            Additional Credit for Presentence Custody
¶ 35       Toliver also argues, and the State concurs, he is entitled to eight days of additional credit
       for presentence custody. Toliver was arrested on July 25, 2013, and was sentenced on March
       25, 2014. We agree with Toliver’s calculation that he spent 243 days in custody excluding the
       sentencing date.
¶ 36       Under our authority under Illinois Supreme Court Rule 615(b)(1) to modify a judgment,
       we direct the clerk of the circuit court to correct the mittimus to reflect Toliver is to be credited
       with eight additional days for a total credit of 243 days of presentence credit.
¶ 37       We affirm the judgment of the circuit court in all other respects.

¶ 38       Affirmed; mittimus corrected.



                                                     -7-
¶ 39        PRESIDING JUSTICE PIERCE, dissenting.
¶ 40        In 2023 there will be thousands of 10-year grammar school reunions and none of those will
       be for the 2013 class from Lathrop Elementary School. In 2023 Marcus Toliver will be
       completing his 10-year sentence for selling drugs within 1000 feet of a school that did not
       exist. Long after that 10-year period he will be considered a Class X offender, and he will
       forever suffer the more severe criminal and economic consequences of that classification. I
       respectfully dissent and write separately to express a fundamental disagreement on the main
       issue in this case: was this drug sale within 1000 feet of a school?
¶ 41        This majority conclusion affirming Class X sentencing in this case cannot logically,
       legally, or justly be reconciled with the unassailable fact that, on February 22, 2012, the
       Chicago board of education approved the recommendation of its CEO “that the Board close
       Lathrop effective June 30, 2012, reassign Lathrop’s returning students to Johnson [school],
       and assign portions of Lathrop’s attendance area to Lawndale and Johnson [schools]. ***
       Lathrop’s Local School Council will be dissolved effective June 30, 2012 upon closing of
       Lathrop. *** All faculty and staff members currently assigned to Lathrop will be displaced at
       the end of the 2011-2012 school year in accordance with Board policies and any collective
       bargaining agreements.” (Emphases added.) Chicago Board of Education Report, available at
       www.cpsboe.org/content/actions/2012_02/12/12-0222-EX5.pdf. The words “closed,”
       “dissolved,” “reassign,” and “displaced” do not conjure an inference that children are
       congregating or are drawn to a location of educational instruction.
¶ 42        Thus, on the date of this offense, July 25, 2013, by any common sense reasoning, there was
       no Lathrop Elementary School. There were no students that recently completed the 2012-13
       school year. There were no Lathrop students that were on summer recess or that would return
       from summer recess to start the 2013-14 school year. Lathrop Elementary School simply did
       not exist immediately before, during, or after this drug offense.
¶ 43        To sustain a conviction for possession of narcotics with intent to deliver, the State must
       prove that defendant knew of the narcotics, that the narcotics were in defendant’s immediate
       possession or control, and that defendant intended to deliver them. 720 ILCS 570/401(c)(1)
       (West 2012); People v. Ellison, 2013 IL App (1st) 101261, ¶ 13. Possession of narcotics with
       intent to deliver under this particular section, a Class 1 felony, can be enhanced to a Class X
       felony if the violation occurs, inter alia, “within 1,000 feet of the real property comprising any
       school.” 720 ILCS 570/407(b)(1) (West 2012). Where the State seeks such an enhancement, as
       it did in this case, it must prove beyond a reasonable doubt that the building in question was a
       “school” on the date of the offense. People v. Sims, 2014 IL App (4th) 130568, ¶ 106.
¶ 44        To prove this enhancement element, “[o]ne might think that because several additional
       years of imprisonment could be riding on that issue [citations], the State would ‘elicit[ ]
       testimony from someone affiliated with the [school].’ ” Id. (quoting People v. Ortiz, 2012 IL
       App (2d) 101261, ¶ 11). Not according to the majority. The State could not put a young person
       on the witness stand to say she was a student at Lathrop before, during, or after the date of this
       offense. The State could not provide testimony from any teacher, administrator, or other
       employee that would establish or create a reasonable inference that before, during, or after the
       date of this offense there was a Lathrop Elementary School. Nor could the State produce any
       parent to testify that their child attended Lathrop before, during, or after the date of this
       offense.


                                                   -8-
¶ 45       I have no doubt that at the time of trial, the State was aware Lathrop was closed 13 months
       before this offense and that it knew it could not present any evidence from a student, parent,
       teacher, or employee of the Chicago board of education that would prove that there was a
       “school” within 1000 feet of this offense. Unable to meet its burden, the State merely presented
       two police officers who identified a building as “Lathrop Elementary School.” Officer
       Sandoval testified that the drug transaction occurred within 1000 feet of Lathrop Elementary
       School. Officer Duran testified that he worked in the district for eight years and was familiar
       with some of the schools in the area including Lathrop Elementary School. Despite the fact that
       both officers testified and used the name “Lathrop Elementary School,” there is no temporal
       evidence to support the majority’s finding that Lathrop Elementary was a school or that it even
       existed on the date of the offense. Not one question was asked about whether any activity of
       any kind took place at any time at Lathrop from which a reasonable jury could infer that there
       was a school, as commonly understood by a person of average intelligence, in the area. At best,
       the officers merely identified a building and gave it a name. This cannot be considered proof
       beyond a reasonable doubt (see Cadena, 2013 IL App (2d) 120285, ¶ 16 (finding the evidence
       insufficient where an officer’s testimony was “without temporal context”)), nor is it
       constitutionally sufficient to prove an enhancement element. I take serious issue with giving
       the State a pass on proving a required element of a sentencing enhancement that results in a
       defendant being classified as a Class X offender. Our system of justice and the requirement of
       proof beyond a reasonable doubt demand more. This court should insist that the State meet its
       burden of proof.
¶ 46       The majority frames the issue in this case as whether the State needs “to establish that a
       structure is a ‘school’ on the day of the offense” and avoids the answer by “finding no authority
       requiring the State to prove the school was ‘operational.’ ” The majority avoids answering the
       question by focusing on whether there needed to be proof the school was “operational”
       (“operational, adj. 1. Engaged in operation; able to function.” Black’s Law Dictionary 1119
       (7th ed. 1999)) to make this defendant subject to Class X sentencing. But before something can
       be operational, it must first exist.
¶ 47       The majority attempt to justify the conclusion that this drug sale occurred near a “school” is
       simply not persuasive. Defense counsel did not “stipulate” that the sale took place near a
       school. The stipulation was that the State's witness took measurements that showed the sale
       occurred within 1000 feet of Lathrop Elementary School. Defense counsel did not concede in
       closing argument (which is not evidence) that there was a school nearby, he argued that it did
       not matter that the sale took place near a school because his client was not the drug seller. Also,
       his statement during closing argument (again, not evidence) was of the same import as the two
       police officers who simply used the name “Lathrop Elementary School.” The majority
       argument that the “identity” of Lathrop Elementary School remained intact (supra ¶ 20) is
       remarkable simply because there was no evidence of Lathrop's ownership, maintenance,
       purpose, design, site characteristics, or recognized place within the neighborhood: two police
       officers merely testified that the sale occurred near Lathrop Elementary School. They said
       nothing more. If these characteristics are important to the majority, then where is the evidence
       of these factors? The point is: prove there was a school, not who owns, operates, maintains, or
       designed it.
¶ 48       The term “school” is not defined in the Act. However, in People v. Young, 2011 IL 111886,
       our supreme court held that a “preschool” was not within the definition of a “school” as


                                                    -9-
       intended under section 407 of the Act. Citing People v. Goldstein, 204 Ill. App. 3d 1041, 1045
       (1990), the court observed “the meaning of ‘school’ to be uncertain since, if interpreted
       literally, the term could include an endless number of possible educational facilities.” Young,
       2011 IL 111886, ¶ 13. Our supreme court agreed with the conclusion reached in Goldstein that
       “the legislature intended the words ‘any school’ in section 407(b)(2) to refer, as they do
       elsewhere in Public Act 84-1075, to ‘any public or private elementary or secondary school,
       community college, college or university.’ ” (Internal quotation marks omitted.) Id. (quoting
       Pub. Act 84-1075 (eff. Dec. 2, 1985)).
¶ 49        The Act does provide that “the time of day, time of year and whether classes were currently
       in session at the time of the offense is irrelevant.” 720 ILCS 570/407(c) (West 2012). There
       would be no need for this provision if the legislature intended for nonexistent educational
       facilities to be considered a “school.” This provision would be unnecessary if the legislature
       intended to impose an enhanced sentence for drug sales in the vicinity of a location where no
       school exists because students would never attend class (regardless of the time of day, time of
       year, or during a recess period) where no school exists.
¶ 50        In People v. Boykin, 2013 IL App (1st) 112696, we held that an officer’s testimony that the
       distance between a drug transaction and a school that had a sign posted with the name “Our
       Lady of Peace” and another officer’s testimony that the offense was next to a school named
       “Our Lady of Peace school” was insufficient because there was no evidence to allow for an
       inference that the officers “had personal knowledge as to whether the school was in operation
       on the date of the offense” and “there were no questions asked at trial regarding whether Our
       Lady of Peace was an ‘active’ school.” Id. ¶¶ 2-3, 15. Boykin relied on People v. Ortiz, 2012 IL
       App (2d) 101261, where police officers testified that the distance between a drug transaction
       and “Emmanuel Baptist Church” was less than 1000 feet, and the identification of photographs
       of the church, was found to be insufficient to show that the offense occurred within 1000 feet
       of a church, reasoning that we had “no way of knowing whether the Emmanuel Baptist Church
       existed” on the date of the drug transaction. (Emphasis added.) Id. ¶ 11.
¶ 51        The majority dismisses Boykin stating that Boykin refused to take judicial notice of
       nine-year-old newspaper articles stating Our Lady of Peace school was closed. However, on
       the merits, we found the testimony in Boykin merely amounted to calling a location a “school,”
       and without more, that evidence was not enough to prove the essential enhancing element.
       “Further, there was even less evidence presented [here] than in [Cadena, 2013 IL App (2d)
       120285], as there were no questions asked at trial regarding whether Our Lady of Peace was an
       ‘active’ school.” Boykin, 2013 IL App (1st) 112696, ¶ 15. I was a panel member in Boykin, and
       I am certain we used the adjective “active” to convey the common sense understanding that
       merely referring to a location as a “school” did not allow for an inference that it was “an
       institution for teaching of children” or “a school building.” Merriam-Webster’s Collegiate
       Dictionary 1111 (11th ed. 2006). This obvious (to me) finding in Boykin was recently followed
       by this court in People v. Sipp, 2016 IL App (1st) 140898-U, ¶ 20 (“While classes need not be
       in session, the State was still required to prove that the school existed on the date of the offense.
       Boykin, 2013 IL App (1st) 112696, ¶ 16.” (Emphasis added.)).
¶ 52        The conclusion that the legislature intended this enhancement to apply to drug sales near
       closed schools because children may be attracted to school property at all hours throughout the
       year “even following a school closure” is not supported by any precedent or legislative
       statement. The practical effect of this finding is to allow the Class X enhancement where a sale

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       occurs within 1000 feet of vacant, unoccupied buildings that a witness calls a school without
       any proof that students go to that location to be educated. This does rewrite the statute or
       incorporate new elements into the existing sentencing enhancement. It is recognition of a
       common sense application of the statute. If the majority is correct, then any drug sale on or
       near Navy Pier, the most popular tourist attraction in the Midwest, falls within this school
       sentencing enhancement because it was the home of the University of Illinois-Chicago until
       the mid-1960s but is now closed. According to the majority, a school is still a school even
       when it is closed, shuttered, and no longer in operation. The legislature did not intend this
       result.
¶ 53       The majority’s observation that section 407(b) enhances the penalty for drug violations
       near religious sites “or other building[s], structure[s], or place[s] used primarily for religious
       worship” (720 ILCS 570/407(b) (West 2012)) is meaningless in this case because no “primary
       use” qualifier exists when considering whether a drug sale is near a school under section
       407(b)(1). 720 ILCS 570/407(b)(1) (West 2012). Furthermore, as previously stated, with
       respect to violations of section 401(c)(1) and section 407(b)(1), “the time of day, time of year
       and whether classes were currently in session at the time of the offense is irrelevant.” 720 ILCS
       570/407(c) (West 2012). The majority’s reasoning that because section 407(c) specifically
       provides that “the time of day, time of year and whether classes were currently in session at the
       time of the offense is irrelevant” in a prosecution for drug sales near a school is a reasonable
       statutory provision because schools are not “in use for their intended purpose in the summer
       vacation months, weekends, or holidays” is unassailable. Supra ¶ 18. Unassailable and
       completely irrelevant in this case because Lathrop Elementary School did not exist on the date
       of this offense.
¶ 54       The defense in this case was that the police caught the wrong man. There can be no
       question that, had the trial court been advised that Lathrop Elementary School was officially,
       formally closed, its school council dissolved, and its faculty and staff displaced 13 months
       before this crime, it would not have allowed this enhancement element to be submitted to the
       jury. In my opinion, this is a substantial defect that may be noticed under Illinois Supreme
       Court Rule 615(a) (“Plain errors or defects affecting substantial rights may be noticed although
       they were not brought to the attention of the trial court.”). There can be no argument that, had
       the jury heard any evidence that Lathrop Elementary School closed 13 months before this
       offense, it would not have found beyond a reasonable doubt that a drug sale took place within
       any distance of a school regardless of the time of day or time of year. In my opinion, once a
       school is closed, it does not exist, it is no longer an “active” school (see Boykin, 2013 IL App
       (1st) 112696, ¶ 15), it is a vacant building no different than any other vacant building in the
       area at the time of the offense. The fact that the defense theory was “they got the wrong guy”
       did not eliminate the necessity of proof that Lathrop Elementary School did in fact exist to
       impose Class X sentencing. While drug dealing cannot be condoned, every sentencing
       enhancement for drug dealing near a school requires proof beyond a reasonable doubt. While
       under section 407(b)(1) and (c), the State was not required to prove that school was in session
       on the date in question, the State was still required to prove that the school existed and was
       “active” on the date of the offense, which they failed to do. See Boykin, 2013 IL App (1st)
       112696, ¶ 16. Whether the school is in fact an “active” or a “former” school is an entirely
       different question than whether the school is “operational” (“operational, adj. 1. Engaged in
       operation; able to function.” Black’s Law Dictionary 1119 (7th ed. 1999)).


                                                   - 11 -
¶ 55       At the very least, the rule of lenity should be invoked because it can be argued there exists
       an ambiguity in whether the legislature intended enhanced penalties for drug sales near schools
       to include drug sales near locations that were at one time schools, as commonly understood,
       and that have been closed prior to the offense in question. People v. Gutman, 2011 IL 110338.
       “If a statute increasing a penalty or punishment is capable of two constructions, the one which
       operates in favor of the accused is to be adopted; such a statute is highly penal and should not
       be extended in its application to cases which do not, by the strictest construction, fall within its
       terms.” People v. Carlock, 102 Ill. App. 3d 1100, 1102 (1981).
¶ 56       Because the State failed to present competent evidence to prove beyond a reasonable doubt
       that Lathrop Elementary School existed on the date in question, the evidence was insufficient
       to support defendant’s conviction. We should not give the State a precedent that it will surely
       use in the future to undermine the fundamental obligation to prove every element of an offense
       beyond a reasonable doubt. The State will cite the majority opinion to support Class X
       sentencing in future prosecutions where drug offenses occur near shuttered schools when there
       is no legislative justification to do so. Accordingly, I would reduce defendant’s conviction to a
       Class 1 delivery of a controlled substance and remand for resentencing.




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