                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Boykin, 2013 IL App (1st) 112696




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



District & No.             First District, Second Division
                           Docket No. 1-11-2696


Filed                      November 12, 2013
Rehearing denied           December 12, 2013


Held                       Defendant’s conviction for unlawful delivery of a controlled substance
(Note: This syllabus       within 1,000 feet of a school was reversed and the cause was remanded
constitutes no part of     for the entry of a judgment affirming defendant’s conviction for unlawful
the opinion of the court   delivery of a controlled substance and resentencing on that conviction,
but has been prepared      since the evidence was insufficient to establish beyond a reasonable doubt
by the Reporter of         that the building described by the officer who observed the offense as
Decisions for the          “Our Lady of Peace school” was a school on the date of the offense.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-4288; the
Review                     Hon. Kenneth J. Wadas, Judge, presiding.



Judgment                   Reversed in part and affirmed as modified; cause remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Ginger Leigh Odom, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
                           P. Needham, and Emily Czerniejewski, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE SIMON delivered the judgment of the court, with opinion.
                           Presiding Justice Quinn and Justice Pierce concurred in the judgment and
                           opinion.




                                              OPINION

¶1           Following a bench trial, defendant, Randall Boykin, was found guilty of delivery of a
        controlled substance within 1,000 feet of a school under the Illinois Controlled Substances
        Act (Act) (720 ILCS 570/407(b)(2) (West 2008)), and was sentenced to two years of felony
        probation. On appeal, defendant does not challenge the sufficiency of the evidence to prove
        him guilty of delivery of a controlled substance under section 401(d) of the Act. Rather, he
        challenges only whether the State provided sufficient evidence to prove that the offense was
        committed within 1,000 feet of a school for purposes of enhancement under section
        407(b)(2). Accordingly, he asks this court to reverse the enhanced Class 1 felony conviction
        and enter judgment on the unenhanced Class 2 felony conviction of delivery of a controlled
        substance. Because the only issue on appeal is whether defendant committed the offense
        within 1,000 feet of a school, we confine our factual summary to the evidence presented
        about that “school.”
¶2           The evidence adduced at trial established that on December 11, 2008, defendant
        participated in the sale of cocaine to undercover police officer Jennifer Przybylo, who was
        sitting in an undercover police vehicle at the intersection of 79th Street and Jeffrey Boulevard
        in Chicago. Officer Przybylo testified that as she was sitting in the vehicle, she saw a school
        located on the northeast corner of that intersection. The school was approximately 100 feet
        from the vehicle, there was a sign posted, and the school’s name was “Our Lady of Peace.”
¶3           Officer Derrick Miller testified that at the time of the offense, he was working as a
        surveillance officer and was parked on Jeffrey Boulevard, just north of 79th Street. As he
        observed the offense, he was “sitting right next to a school, a Catholic school.” He answered
        affirmatively when asked if that school was “Our Lady of Peace school” and stated that it
        was located approximately 100 feet from Officer Przybylo’s vehicle.
¶4           After the close of evidence and argument, the trial court concluded that the officers’
        testimony was “highly credible” and found defendant guilty of delivery of a controlled

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     substance within 1,000 feet of a school.
¶5        On appeal, defendant challenges the sufficiency of the evidence to sustain his conviction,
     contending that the State failed to prove beyond a reasonable doubt that Our Lady of Peace
     was operating as a school at the time of the offense and that the officers’ mere
     characterization of it as a “school” is not enough. The State responds that the witnesses’
     credible testimony that Our Lady of Peace was a “school” established that the offense took
     place within 1,000 feet of a school as required by the Act.
¶6        When a defendant challenges the sufficiency of the evidence in a criminal case, it is not
     the function of a reviewing court to retry the defendant. People v. Collins, 106 Ill. 2d 237,
     261 (1985). Rather, the proper standard of review is “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.” Jackson v. Virginia, 443 U.S.
     307, 319 (1979). A reviewing court will not substitute its judgment for that of the trier of fact
     on issues of the weight of evidence or credibility of witnesses. People v. Phelps, 211 Ill. 2d
     1, 7 (2004). The State bears the burden of proving all essential elements of the charged
     offense beyond a reasonable doubt (People v. Weinstein, 35 Ill. 2d 467, 470 (1966)), and
     where the evidence is so unsatisfactory as to justify a reasonable doubt of the defendant’s
     guilt, the reviewing court will reverse the conviction (People v. Ehlert, 211 Ill. 2d 192, 202
     (2004)).
¶7        We initially note that, in claiming that the evidence was insufficient, defendant asserts
     that the State offered “incorrect, untrue and outdated evidence regarding the status of Our
     Lady of Peace as a school at the time of the offense” and asks us to take judicial notice of
     three newspaper articles, and a news release from the archdiocese of Chicago, which relate
     to the closing of Our Lady of Peace school in 1999. Accordingly, he asks us to conclude that
     Our Lady of Peace was not operating as a school at the time of the offense in 2008.
¶8        The State responds that taking judicial notice of such material is inappropriate because
     it is “critical evidentiary material [which was] not presented in the court below.” The State
     further argues that, if we choose to take judicial notice of the articles regarding Our Lady of
     Peace’s closing, we should also “accept that closed school buildings are often then occupied
     by other schools,” citing three other newspaper articles regarding the lease or conversion of
     former school buildings–though not specifically relating to Our Lady of Peace–to house other
     schools. As such, the State contends that the articles about the school’s closure “represent
     only a snapshot in time” and “do not establish that there was not a school in the Our Lady
     of Peace School building” at the time of the offense.
¶9        A reviewing court may take judicial notice of matters not previously presented to the trial
     court when the matters are capable of instant and unquestionable demonstration. People v.
     Davis, 65 Ill. 2d 157, 162-63 (1976). We will not, however, take judicial notice of critical
     evidentiary material that was not presented to and not considered by the fact finder during
     its deliberations. People v. Barham, 337 Ill. App. 3d 1121, 1129 (2003). Judicial notice
     cannot be extended to permit the introduction of new factual evidence not presented to the
     trial court. Barham, 337 Ill. App. 3d at 1129. As evidence of the school’s closure is clearly
     critical material that was not presented to the fact finder, we decline to take judicial notice


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       of it. Nonetheless, we consider defendant’s claim that the evidence presented to the trial
       court was insufficient to prove beyond a reasonable doubt that Our Lady of Peace was in
       operation as a school at the time of the offense.
¶ 10       Section 401(d) of the Act (720 ILCS 570/401(d) (West 2008)) provides that any person
       who knowingly delivers a Schedule I or II controlled substance, including cocaine (720 ILCS
       570/206(b)(4) (West 2008)), is guilty of a Class 2 felony. Section 407(b)(2) of the Act
       enhances the classification of a section 401(d) offense to a Class 1 felony if the violation
       occurs “within 1,000 feet of the real property comprising any school.” 720 ILCS
       570/407(b)(2) (West 2008). Although the Act does not define what is a “school” (People v.
       Goldstein, 204 Ill. App. 3d 1041, 1045 (1990)), our supreme court has determined that the
       term’s “settled meaning” is “ ‘any public or private elementary or secondary school,
       community college, college, or university’ ” (People v. Young, 2011 IL 111886, ¶ 13
       (quoting Goldstein, 204 Ill. App. 3d at 1048); see also People v. Owens, 204 Ill. App. 3d 168,
       171 (1992)).
¶ 11       In arguing that the evidence was insufficient to prove that Our Lady of Peace was an
       active school on the date of the offense, defendant relies on People v. Ortiz, 2012 IL App
       (2d) 101261, ¶ 11. In Ortiz, the State presented testimony from a police officer that the
       distance between a drug transaction and “Emmanuel Baptist Church” was less than 1,000
       feet, but the officer did not testify to when he measured the distance. Ortiz, 2012 IL App (2d)
       101261, ¶ 11. The State also presented photographs of the church, but presented no testimony
       as to when the photographs were taken. Ortiz, 2012 IL App (2d) 101261, ¶ 11. The Ortiz
       court found that the evidence was insufficient to show that the offense occurred within 1,000
       feet of a church, reasoning that it had “no way of knowing whether Emmanuel Baptist
       Church existed” on the date of the drug transaction. Ortiz, 2012 IL App (2d) 101261, ¶ 11.
¶ 12       Similarly, in People v. Cadena, which was decided after the conclusion of briefing in this
       case, the Second District Appellate Court relied on Ortiz and reversed a defendant’s
       convictions for delivery of a controlled substance within 1,000 feet of a church (720 ILCS
       570/407(b)(1) (West 2008)). People v. Cadena, 2013 IL App (2d) 120285, ¶ 18. The court
       observed that the only evidence indicating that “Evangelical Covenant Church” was being
       used as a church on the dates of the three undercover drug transactions was a police officer’s
       “affirmative response to the leading question, ‘[I]s that a church that is an active church?’ ”
       Cadena, 2013 IL App (2d) 120285, ¶ 16. The court determined, however, that the question
       had no “temporal context” and could have referred to the time of trial, rather than to the dates
       of the offenses. Cadena, 2013 IL App (2d) 120285, ¶ 16.
¶ 13       In holding the evidence insufficient, the Cadena court also relied on People v. Morgan,
       301 Ill. App. 3d 1026, 1032 (1998), as an example of the evidence necessary to sustain a
       locality enhancement under the Act. There, the court held that a police officer’s testimony
       was sufficient to establish the status of a park as a “public park,” within the meaning of
       section 407(b)(1), where the officer demonstrated his personal knowledge of the park,
       testifying that he had made more than 100 arrests in the area. The officer also testified that
       the area in question was open to the public and contained playground equipment and at least
       one basketball court, and the defendant referred to the area as a park and admitted to playing
       basketball there. Morgan, 301 Ill. App. 3d at 1031-32.

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¶ 14       The Cadena court determined that “Morgan requires more than the bare facts that the
       witness is a police officer with a certain number of years of service; it requires the
       demonstration and explanation of how the witness is familiar with the enhancing location
       (park, school, church, or the like).” Cadena, 2013 IL App (2d) 120285, ¶ 17. In Cadena,
       however, there was no evidence of how the testifying officer would have known that the
       church was active on the dates of the offenses. Cadena, 2013 IL App (2d) 120285, ¶ 18. The
       court thus concluded that, because the State failed to present evidence from anyone
       demonstrating personal knowledge as to whether the church was operating as such on the
       dates of the offenses, no rational trier of fact could have found the enhancement beyond a
       reasonable doubt. Cadena, 2013 IL App (2d) 120285, ¶ 18.
¶ 15       We find this case analogous to Cadena. In the trial court, Officers Przybylo and Miller
       testified that the drug transaction took place within 1,000 feet of a “school,” but there was
       no evidence presented to show how those officers had personal knowledge of the operation
       of that building. The officers did not testify that they lived in the area or that they regularly
       patrolled the neighborhood, so as to allow an inference that they had personal knowledge as
       to whether the school was in operation on the date of the offense. Cadena, 2013 IL App (2d)
       120285, ¶ 18. Further, there was even less evidence presented than in Cadena, as there were
       no questions asked at trial regarding whether Our Lady of Peace was an “active” school.
¶ 16       Moreover, the evidence presented in this case did not establish that the building’s name
       included any signifier that would identify it as a school. See People v. Foster, 354 Ill. App.
       3d 564, 568 (2004) (holding that the evidence was sufficient to show that a building called
       “New Hope Church” was a church used primarily for religious worship, where its name
       permitted an inference of its use). In this case, Officer Przybylo testified that she saw a sign
       posted and that the name of the school was “Our Lady of Peace.” She did not, however,
       testify that the name was Our Lady of Peace “Academy” or “Elementary” or “School” or any
       other descriptor that could allow an inference as to its use. The only evidence that the
       building’s name included the word “school” was Officer Miller’s affirmative response to the
       leading question about whether he was referring to “Our Lady of Peace school.” In such
       circumstances, we find the evidence insufficient to prove beyond a reasonable doubt that
       “Our Lady of Peace” was a school on the date of the offense. Cadena, 2013 IL App (2d)
       120285, ¶ 18.
¶ 17       Accordingly, we reverse defendant’s conviction for unlawful delivery of a controlled
       substance within 1,000 feet of a school (720 ILCS 570/407(b)(2) (West 2008)), and enter
       judgment affirming defendant’s conviction for unlawful delivery of a controlled substance
       (720 ILCS 570/401(d) (West 2008)). We remand for resentencing on that conviction.

¶ 18       Reversed in part and affirmed as modified; cause remanded.




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