## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Cadena , 2013 IL App (2d) 120285

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. SERGI O CADENA, D efe ndant-Appe llant.

District & N o. Second District Docke t No. 2-12-0285

Filed August 5, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convictions for unlawful delivery of a controlled substance within 1,000 fee t of a churc h and unlawful possession of a controlled substance with intent to deliver within 1,000 fee t o f a ch urch wer e reduc ed to unlawful deli v ery and unlawful possession of a controlled substance, since the State failed to prese nt testimony that the churc h at issue was a ctive on the date of the offe nses, which wer e two year s prior to defe ndant’s trial.

Dec ision Under
Review Appea l from the Circuit C o u rt of Boone County
, No. 09-CF- 364; the Hon. Fe rnando L . Eng elsma, Judge, pr esiding

.

J udg ment Affir med as modified in par

t and re verse d in part; ca

use re manded.Counsel on

Appea l Thomas A. L ilien and Paul Alexander Roge rs, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michelle J

. Courier, State’s Attorney
, of Be lvidere (L awr ence M. Ba uer and Colleen P. Price, both of State’s Attorn ey s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE BI RKETT deliver ed the judgment of the c ourt, with opinion.
J ustices McL are n and Z enoff concur red in the judgment and opinion.

OP INION

¶ 1 Following a jury trial in the circ uit court of Boone County in which he was convicted of unlawful de liveries and unla wful possession of a contr olled substance w ithin 1,000 feet of

a churc h (720 I L CS 570/401(c)( 2), 407(b)( 1) (Wes t 2 0 0 8)), defe ndant, Serg io Cadena
, appea ls his convictions. De fendant contends that the S tate presented insufficient evidenc e from which the jury cou l d d et er m ine that the near by Evang elical Covenant Church was a “chur ch” on the dates of the offe nses and un d er t h e meaning of section 407(b)( 1) of the I llinois Controlled Substances Act (Ac t) (720 I L CS 570/407(b)(1) (West 2008)). We agree , and we aff

irm as modified in part, r ever se in part, a nd rema nd the ca use for rese ntencing

.

¶ 2 I . BA CKGROUND ¶ 3 On Octobe r 14, 2009, defe ndant was indicted on three counts of unlawful delivery of a controlled substance within 1,000 fee t o f a ch u rc h (counts I
, I I I
, IV) (720 I L CS 570/401(c)( 2), 407(b)( 1) (West 2008)). Those counts involved police-c ontrolled purcha ses of coca ine occur

ring on J uly 26, September 12, and October 4, 2009. Def enda nt was also char g ed with one coun t of unlawful possession of a controlled substance with intent to deliver within 1,000 fee t of a churc h (cou n t I I ) (7 20 I L CS 570/401(c)( 2), 407(b)(1) (West 2008)) and one count o f u n l awf ul delivery of a controlled substance (count V) (720 I L CS 570/401(c)( 2) (West 2008) ), which wer e based on an August 2, 2009, controlled purcha se. ¶ 4 Def

endant conce des that he violated section 401(c) (2) of the Act (unenha nced de livery of and possession with intent to deliver a controlled substance)
, but he challeng es the jury ’s finding that he committed the offe nses within 1,000 fee t of a churc h. Acc ording ly
, defe ndant seeks the reve rsal of the enhanc ed Class X felony convictions an d t h e affirmance of unenhanc ed Class 1 felony convictions of delivery of a controlled substa n ce. Be cause the

o n l y i s s u e on appea l is whether defe ndant committed the offe nses within 1,000 fee t of a churc h, we confine o u r fac tual summary to the testimony about the “enha ncing locality”

-2-identified by the State as a

churc h. ¶ 5 David Dammon, a police office r involved in the operation, testified that the transac tions
g iving rise to the char g es occur red or orig inated in the parking lot of a McDona ld’s restaur ant in Be lvidere. The Evang elical Covenant Church was located nor theast of the Mc Donald’s, though it was not visible from the restaur ant’s parking lot. On Oct o b er 6
, 2009, Offic er Dammon measure d the distance betwee n the churc h parking lot and the McDona ld’s parking lot using a laser device known as “L I DAR.” The distance betwee n the churc h’s rea l proper ty and the location in the McDona ld’s parking lot wher e the controlled purcha ses had occur red or orig inated wa s 860 fee t or less. ¶ 6 L eon Ba

rry , a police office r who had worke d for the Be lvidere police depar tment for 27
y ear s, was involved in surveillance of the “contr olled purcha ses

. ” Offic er Ba rry ’s direc t testimony comprises 75 pag es of transcript in the rec ord on appea l. In addition to extensive questioning about the circ umstances of eac h of defe ndant’s transac tions, his only testimony about the churc h was sandwiche d betwee n testimony about executing sea rc h wa rrants on defe ndant and his co- offe nders: “Q. [P rosec u t o r:] Now, in relation to the McDona ld’s located at 11–sorry –1313 North State Street in Be lvidere, Boone County
, I llinois
, is it located near the Evang elical Covenant Church locate[d] at 220 East Har rison Street in Be lvidere, Boone County
, I llinois [? ] A. [Office r B arr

y :] Yes. Q. And in relation to that particula r churc h, is that a churc h that is an active churc h?
A. Yes.” ¶ 7 Def

endant was found guilty by the jury on all counts and sentenc ed by the trial court to four concur

rent eight-year prison ter m s o n the char g es involving delivery or possession within 1,000 fee t o f a ch u rch (counts I through IV). No sentenc e was enter ed on count V, which wa s based on the sa me transa ction as count I I . Def endant timely

appea ls.

¶ 8 I I . ANALYSI S ¶ 9 On appea l, de fenda nt does not challeng e that the State pr esente d sufficie nt e vidence to prove him guilty of delivering and possessing with the intent to del i v er a co n trolled substance under section 407(c) (2) of the Act. Rather, defendant challeng es only the sufficie ncy of the evidenc e reg arding whether his offe nses wer e committed within 1,000 fee t of a churc h. When a defe ndant challeng es the sufficie ncy of the evidenc e in a criminal case , it is not the function of a revie wingcourt to re try the defendant. People v. Colli ns , 106 I ll. 2 d 2 3 7
, 261 (1985). Rather, the proper st andar d of review is “ ‘whether, after view i n g t h e evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements o f the crime beyond a rea sonable doubt.’ ” (Emphasis in orig inal.) Id. (quoting Jack son v. Virginia
, 443 U.S. 307, 319 (1979))

. When revie wing the evidenc e, the revie wing court will not substitut e its judgme nt for that of the trier of fac t on issues of the weight of evidenc e or cre dibilit y of witnesses. People v. Phelps
, 211 I ll. 2d 1, 7 (2004). Where the evidenc e is so unsatisfac tory as t o j u s tify a rea sonable doubt of the

-3-defe ndant’s guilt, the revie wing court may reve rse a conviction. People v. Ehlert
, 211 I ll. 2d

192, 202 (2004). ¶ 10 Specifica lly
, defe ndant argues that the State did not prese nt sufficie nt evidenc e to allow the finder of fac t to conclude that the Evang elical Covenant Church was an active churc h on the dates of the offe n s es. In other words, defe ndant arg ues that the State failed to prove beyond a rea sonable doubt that the Evang elical Covenant Church was a “chur ch *** or other building *** u s ed primarily for relig ious worship” on the dates of the offe nses. 720 I L CS 570/407(b)(1) (West 2008). We beg in our ana ly sis with the statute. ¶ 11 Section 401(c) (2) o f t h e Ac t (720 I L CS 570/401(c)( 2) (West 2008)) provides that any
person who knowing ly delivers or possesses with intent to deliver “1 g ram or more but less than 15 g rams of any substance containing coca ine” is guilty of a Class 1 felony

. Section 407 (b)( 1) of the Act enhanc es the classification of a section 401(c) offe nse to a Class X felony if the violation occur s “within 1,000 fee t of the rea l proper ty comprising any churc h,
sy nag ogue, or other building, structure , or place used primarily for relig ious worship.” 720 I L CS 570/ 407(b)( 1) (West 2008). ¶ 12 Def

endant argues that this court’s decision in People v. Ortiz
, 2012 I L App (2d) 101261,

war rants reve rsal of his convictio n s

. I n Ortiz
, the defe ndant appea led his conviction of unlawful delivery of a controlled subst ance within 1,000 fee t of a churc h. Id. ¶ 9. At issue

was the State’s failure to prove beyond a rea sonabl e d o ub t t hat the building known as the Emmanuel Ba

ptist Church was a “chur ch *** or other bu i l d i n g *** used primarily for relig ious worship” on the date of t he offense. (Interna l quotation mar k s omitted.) Id. ¶ 11. Although a poli ce office r testified that the distance from the drug transac tion to the Emmanuel Ba

ptist Church was less than 1,000 fee t, he did not testify as to the date on which he conducte d the measure ment. Id. The State a lso offer ed photographs of the building into evidenc e, but supplied no evidenc e as to when the photogr aphs wer e taken or t h at t h ey

acc urate ly repr esente d th e b u i l d i n g as it appea red on the date of the offe nse. Id. Be cause there was no way of knowing whether the churc h exis ted on the date of the offe nse, though the State could have easily established that fa ct, we r ever sed the de fenda nt’s conviction of unlawful d eli very of a controlled substance within 1,000 fee t of a churc h, restore d and aff irmed his conviction of unlawful delivery of a controlled substance, an d rema nded the

cause for se ntencingon that conviction. Id. ¶¶ 11, 15. ¶ 13 He re, simil arly
, defe ndant argues that the evidenc e was insufficient to prove beyond a

rea sonable doubt that the Evang elical Covenant Church was opera ting as such on the dates of the offe nses, as require d by Ortiz

. We a g ree with de fenda nt tha t the evidenc e offe red by the State was insufficient to p ro v e t h at t h e building was what it purported to be. L ike in Ortiz
, testimony identifying the building as the “Eva ng elical Covenant Church” was i n s u ff i ci en t to prove that it was operating as a churc h on the dates of the offe nses. E v en wher e the State in Ortiz offe red photogr aphs of the churc h along with identifying it by name,

we held that there was insufficient evidenc e tying the photogr aphs t o t h e d at es of the offe nses. Her e, as we will discuss below, even less evidenc e was offe red, and cer tainly not enough to pr ove beyond a rea sonable doubt that the building in question was being used as its name implied, that is, as a churc h, on the dates of the offe nses.

-4-¶ 14 In People v. Sparks
, 335 I ll. App. 3 d 2 4 9 (2 002), we examined whether the Salvation

Army chape l w as a “chur ch” for the purposes of the statute. Noting that the word “chur ch”
was not define d in the Act, we concluded that the l egi s lature intended “chur ch” to mean a place used primarily for relig ious wo rshi p. Id. at 256. We held that the Salvation Army chape l was a “chur ch” beca use the undisputed evidenc e established that the sole purpose of the cha pel was to c onduct re ligious ser vices. ¶ 15 In contra st, the Evang elical Covenant Church here was, by name, a “chur ch.” Although its name supports the infere nce that the building in que stion wa s in f act a churc h (see
, e.g. , People v. Foster
, 354 I ll. App. 3d 564, 568 (2004) (finding that “a rational trier of fac t could have inferr ed New Hope Church was a churc h used primarily for relig ious worship based on its name” )), Sparks require s proof reg arding how the building was used. See Sparks
, 335 I ll. App. 3d at 256 (the deter

mination of whether a place falls within the definition of a “chur ch”
must focus “on the manner in which the place is used, i.e.
, wheth er i t s p rimary use is for relig ious worship”)

. The definition of “chur ch” is complicated by the appar ent discrepa ncy betwee n Sparks and Foster
, with Sparks requiring at l east some information as to churc h activities and Foster h o l d i n g that nomenclatur e alone is sufficie nt. Nonethele ss, the State

conce des that nomenclatur e alone is insufficient to p r o v e th a t the “enha

ncing locality ,” in this

case a chur ch, is beingused as its name implies. 1 ¶ 16 Her e, Of

fice r B arr y was que stioned in detail about the transa ctions, surveillance of the
transac tions, execution of the sear ch and arr est war rants, and the background of the informant or cooper ating witness who purc hased the drug s. By contra st, O ffice r Ba rry was asked only two questions about the churc h in approximately 75 pag es of tra n s cr i p t of his direc t testimony

. Moreove r, those two questions appea r to have been asked off- handedly as

an afte rth o u ght, as they wer e sandwiche d betwee n detailed testimony conce rning the execution of two separ ate sear ch war rants. In fac t, the only tes t i m o n y i n d i cating that the Evang elical Covena

nt Church was a ctually

beingused as suc h on the dates of the offenses was Of fice r B arr y ’s af firmative r esponse to the lea ding que stion, “[I ]s t hat a c hurch that is

an active churc h? ” Not only was the question leading
, but it was stated in the prese nt te nse and without temporal context. Although the State argues that “it was patently obvious” that the question ref

err ed to the dates of the o ff en s es , this conclusion is not so “pate nt” as the State sug g ests. Fa ctoring in the brief and leading nature of the question with its odd juxtaposition in the middle of testimony about executing sear ch war rants, the rec ord sug g est s otherwise: the unrelated questi ons put to Offic er Ba rry both befor e and afte r t he questions
reg arding the churc h wer e fra med in the past tense and ref err ed to a specific date. Rather than being patently obvious that Offic er Ba rry was ref

err ing to the dates of the offe nses, this stark
contra st could, just as rea sonably
, su ggest that he was, in fac t, ref err ing to the time of the trial, that is, two y ear s afte r the dates of the offe nses. Even if the jury could have inferr ed that the October 8, 2009, date re ference d in the questions perta ining to the execution of the

war rant s gav e a t empora l locus to the t wo questi ons reg arding the church, t he dates of t he

Beca use of the Sta te ’s con ces si on re gardi ng nomencl ature , we nee d not fur the r con si der or 1

at te m pt to re sol ve the app ar entdi scr epa ncy bet ween Sparks and Fost er

.

-5-offe nses prec eded October 8, 2009, and the testimony was insufficient to prove that the

churc h was active on th e d a t es o f th e offenses

. See Ortiz
, 2012 I L App (2d) 101261, ¶ 11. Such a conc lusion was unsustainable, g iven the slapda sh manner in whic h the proof of the enhanc ing loc ation was pre sented. ¶ 17 Even if Offic er Ba rry ’s response could be taken to mean that the churc h was also ac tive

on the dates of the offe nses two year s befor e the trial, there was no evidenc e of how Offic er Ba rry knew t h i s information. The State argues that his experience on the police forc e was sufficie nt for the jury to infer that he was fa m i l iar with the church and its activities, citing People v. Morgan
, 301 I ll. App. 3d 1026, 1032 (1998) (which, we note, wa s re l i ed o n by Foster for the proposition that the nomenc l at ure alone was sufficie nt to establish that the churc h was what i t s n ame purported it to be). In Morgan
, howeve r, we held that a police office r’s testimony was sufficie nt to establish the status of a park as a “public park,” within the meaning of section 407(b)( 1), wher e the office r demonstrated his persona l knowledg e of the par k, rathe r than makingan ambiguous statement about the pa rk’s a ctivity . The off

icer testified that the are a in question was open to the public and contained playground equipment and at least one baske tball c ourt. He had also made over 100 arr ests in the are a, which was known as “B edrosian Park.” Fur ther, the defe ndant ref

err ed to the are a as a park and admitted to pla ying basketba ll ther e. Id. at 1031-32. Thus, Morgan require s more than the bare fac ts that the wit ness i s a police of fice r with a c erta in number of year s of servic e; it require s the demonstration and explanation of how the witness is familiar with the enhanci ng location (par k, school, churc h, or the like). ¶ 18 In contra st, here
, the State failed to p re s en t t es t i m o n y from someone with personal knowledg e that the churc h was active on the dates of the offe nses, “a fac t that the State could have easily established by eliciting testimo n y fr o m s omeone aff iliated with the churc h.” Ortiz , 2012 I L App (2d) 101261, ¶ 11. Even a neighbor, or a police office r who testified to being familiar with the churc h from having r e gularly patrolled the neighborhood, would have had sufficien t persona l knowledg e to testify as to the churc h’s active status. Howeve r, beca use the State failed to prese nt evidenc e from anyone demonstrating persona l knowledg e

as to whether the churc h was operating as such on the dates of the offe nses, no rational trier of fa ct could have found the e nhance ment beyond a re asonable doubt. See id. ¶ 11.

¶ 19 I I I . CONCLUSI ON ¶ 20 Acc ording ly
, for the fore g oing rea sons, we modify defe ndant’s convictions of unlawful delivery of a controlled substance wit hin 1,000 fee t of a churc h (counts I
, I I I
, IV) to convictions of unlawf

ul delivery of a controlled substance (720 I L CS 570/401(c) (2) ( West 2008)) (Class 1 felonies)

. We reve rse his conviction of unlawful possession of a controlled substance with intent to deliver within 1,000 fee t of a churc h (c o u n t I I ) and aff irm his conviction of unlaw ful delivery of a c ontrolled substance (count V). We rema nd the ca use for r esente ncing

.

¶ 21 Affir

med as modified in par

t and re verse d in part; ca

use re manded.

-6-