1

 2017 IL App (5th) 140300

 NO. 5-14-0300

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Fayette County.

)

v. ) No. 13-CF-24

)

MICHAEL FICKES, ) Honorable

) Michael D. McHaney,

Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________

PRESIDING JUSTICE MOORE delivered the judgment of the court, with 

opinion.

Justice Goldenhersh concurred in the judgment and opinion.

Justice Welch concurred in part and dissented in part, with opinion.

OPINION

¶ 1 The defendant, Michael Fickes, appeals his conviction, following a trial by jury in 

the circuit court of Fayette County, for the offense of aggravated participation in 

methamphetamine manufacturing. For the following reasons, we affirm in part, reduce 

the defendant’s aggravated participation in methamphetamine manufacturing conviction 

to simple participation in methamphetamine manufacturing, and remand for a new 

sentencing hearing on that conviction.

NOTICE

Decision filed 05/04/17. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2

¶ 2 FACTS

¶ 3 The facts necessary to our disposition of this appeal follow. On February 24, 2014, 

the defendant proceeded to trial before a jury on the seven counts with which he was 

charged, which were as follows: (1) count I, participation in methamphetamine 

manufacturing (400 grams or more but less than 900 grams); (2) count II, unlawful 

possession of methamphetamine manufacturing materials; (3) count III, unlawful disposal 

of methamphetamine manufacturing waste; (4) count IV, aggravated participation in 

methamphetamine manufacturing (400 grams or more but less than 900 grams); (5) count 

V, aggravated participation in methamphetamine manufacturing (100 grams or more but 

less than 400 grams); (6) count VI, participation in methamphetamine manufacturing 

(100 grams or more but less than 400 grams); and (7) count VII, possession of a 

methamphetamine precursor. The aggravated participation charges stemmed from the 

allegation that the manufacturing in question took place “within 1,000 feet of a place of 

worship, St. James Lutheran Church.”

¶ 4 At a pretrial conference in late January, the judge who was to conduct the trial, the 

Honorable S. Gene Schwarm, asked the parties “if there was anything that could be 

stipulated to, to avoid calling [certain witnesses] or decrease the testimony.” Judge 

Schwarm noted that he asked because he was “thinking about an attempt to shorten up 

the trial” in light of snowy weather conditions that had occurred or were forecast. 

Although the parties discussed the possibility of certain stipulations with regard to 

witnesses, neither party raised the question of stipulating with regard to St. James 

Lutheran Church. Ultimately, the trial date was not changed.
3

¶ 5 At trial on February 24, 2014, Judge Schwarm admonished the potential jurors not 

to do any “independent research” on the case, explaining that the jurors would “hear from 

that witness stand what you need to make decisions in this case” and that he and the 

parties wanted the jury “to base your decisions on what you hear in this courtroom and 

not be influenced by anything outside the courtroom.” Following voir dire, when the jury 

was sworn, he reminded the sitting jurors not to conduct independent research. During 

her opening statement, counsel for the State told the jury that she expected testimony 

from police officer Jerry Bowling that the alleged offenses occurred “approximately a 

hundred feet from a church.”

¶ 6 The first witness to testify for the State was Jerry Bowling, a police officer with 

the city of Vandalia. He testified that on January 30, 2013, he was on duty and was 

attempting to serve an outstanding warrant on an individual not connected with this case

at a nearby apartment building when he smelled a strong chemical odor that he suspected 

might be tied to methamphetamine manufacturing. Bowling was subsequently asked to 

“describe exactly” where this took place. He testified, “The address is 117 South Seventh 

Street. The St. James Lutheran Church out here on Gallatin, just south of that, behind that 

church 111 feet.” When asked how he knew the distance, Bowling testified that he 

“measured it personally with a measuring wheel” used for traffic accidents, although he 

did not testify as to when he measured the distance. He testified that it was 111 feet from 

“the front door of the residence to the back door of the church.” Bowling testified in 

detail about how the defendant became a suspect, what was discovered during a 

subsequent search of the premises, and other facts not relevant to the issue raised by the 
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defendant in this appeal. On cross-examination, when asked to explain the layout of the 

premises, Bowling testified that the house where the methamphetamine manufacturing 

materials were found was “pretty much right behind the St. James Lutheran Church.” He 

was then asked, “That is the one, pretty much, right behind the courthouse?” He testified, 

“Yes,” then was asked, “So the church is there on this block, correct?” He again testified, 

“Yes.” He was later asked, still on cross-examination, about methamphetamine 

manufacturing materials found outside of the house, in “a big open yard.” He attempted 

to describe the yard in relation to other structures. He testified that “there is a house—or, 

it’s the church and then the road.” To clarify, he testified that the closest building to 

where the materials were found was “the church.”

¶ 7 The next witness to testify for the State was Deputy Sheriff Larry Halleman. 

Before Halleman began his testimony, Judge Schwarm noted the proximity to the 

courthouse of the area where the alleged offense occurred and reminded the jurors, “you 

can’t do any independent research. We want you to listen to the evidence and base your 

decision on the evidence. So don’t drive over there until this trial is done, if you want to 

go look at the premises.” Thereafter, Halleman testified that on January 30, 2013, he 

“was dispatched to assist the Vandalia Police Department with what they believed to be a 

meth manufacturing lab in Vandalia.” When asked where he responded to, Halleman 

testified, “It was behind the church directly across from this building on Seventh Street.”

Like Bowling, Halleman testified in detail about how the defendant became a suspect, 

what was discovered during a subsequent search of the premises, and other facts not 
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relevant to the issue raised by the defendant in this appeal. Following Halleman’s 

testimony, the trial was recessed for the day.

¶ 8 On February 25, 2014, testimony resumed. Cheri Wright testified for the State that 

on January 30, 2013, she lived in Vandalia at the house where police discovered the 

methamphetamine manufacturing materials. She testified in detail about the events of that 

night but did not testify as to the location of the house in relation to any other building. 

She testified that ultimately she was arrested and pleaded guilty to unlawful possession of 

methamphetamine manufacturing materials. Two forensic scientists and a special agent 

for the State Police also testified for the State. However, none of them testified about the 

location of the house in relation to any other building. Following their testimony, the 

State rested. The defendant moved for the admission of certain documents, and 

documents were admitted that showed that witness Wright had pleaded guilty to unlawful 

possession of methamphetamine manufacturing materials, as she had testified. The 

defendant also moved for a directed verdict, contending, with regard to counts I, II, and 

III, that the State had failed to present sufficient evidence to prove that any of the 

methamphetamine manufacturing materials that were found at Wright’s residence were 

connected to the defendant. Judge Schwarm denied the motion for counts I, II, and III. 

When asked if he had argument with regard to the remaining counts, counsel for the 

defendant stated that counts IV through VI were “pretty much, the same argument as 

Count I and Count II. So I would stand by that argument, but I think it goes along with do 

you believe—there was testimony the property was within a thousand feet of a place of 

worship, and that’s really the only difference between Count I and Count II.” Judge 
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Schwarm responded, “I recall that too that I think it was Officer Bowling testified he 

actually measured with a measuring device and St. James Lutheran Church was 110 feet, 

or thereabouts.” Judge Schwarm subsequently denied the motion for a directed verdict 

with regard to counts IV through VII as well.

¶ 9 The defendant testified on his own behalf. He denied ownership or possession of 

all of the methamphetamine manufacturing materials in question, with the exception of a 

bottle of drain cleaner, which he testified Wright gave him to use to unclog her toilet, and 

which he testified he did use to unclog her toilet. He denied participating in the 

manufacturing of methamphetamine. Counsel for the defendant specifically asked the 

defendant if the defendant had participated “in the manufacture of methamphetamine 

somewhere between more than 400 grams but less than 900 grams of a substance 

containing meth within a thousand feet of worship [sic] from the St. James Lutheran 

Church here in Vandalia?” The defendant responded, “No.” Counsel for the defendant 

then asked the defendant if the defendant had participated “in methamphetamine 

manufacturing which was more than 100 grams but less than 400 grams of a substance 

containing meth within a thousand feet of St. James Lutheran Church in Vandalia?” The 

defendant responded, “No.” Following the defendant’s testimony, the defense rested.

¶ 10 The following morning, February 26, 2014, the parties concluded their jury 

instruction conference. The State moved to dismiss count V (aggravated participation in 

methamphetamine manufacturing, 100 grams or more but less than 400 grams) and count 

VI (participation in methamphetamine manufacturing, 100 grams or more but less than 

400 grams). The defendant did not oppose the motion, and it was granted. During closing 
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argument, the State told the jury that “Officer Bowling told you that this property from 

the front door of Cheri Wright’s house to the church is 111 feet,” and that part of what 

the jury had to determine was whether the manufacture of methamphetamine “was within 

111 feet or within a thousand feet of the church.” Subsequently, the jury was instructed

that to convict the defendant of aggravated participation in methamphetamine 

manufacturing, the jury must find, inter alia, that “the manufacture of methamphetamine 

was within 1,000 feet of a place of worship.” After deliberating for approximately 3.5 

hours, the jury reached its verdicts on the five counts that remained. The defendant was 

found guilty of (1) aggravated participation in methamphetamine manufacturing, (2) 

participation in methamphetamine manufacturing, (3) unlawful possession of 

methamphetamine manufacturing materials, and (4) unlawful disposal of 

methamphetamine manufacturing waste. He was found not guilty of possession of a 

methamphetamine precursor.

¶ 11 A sentencing hearing was held on March 18, 2014. At the hearing, Judge Schwarm 

first entertained the defendant’s motion for a judgment of acquittal notwithstanding the 

verdict, wherein the defendant again challenged the sufficiency of the evidence against 

him on the four counts of which he was convicted, contending again that no evidence 

showed the defendant had “any control, possession, [of] the items.” With regard to the 

aggravated participation in methamphetamine manufacturing count, counsel for the 

defendant stated that “We would concede that Cheri’s residence was within 1,000 feet of 

a place of worship.” Subsequently, Judge Schwarm denied the defendant’s motion in its 

entirety, and proceeded to sentencing.
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¶ 12 The State recommended a 40-year sentence on the aggravated participation in 

methamphetamine manufacturing conviction, to be served at 75%. The State contended 

that the participation in methamphetamine manufacturing and unlawful possession of 

methamphetamine manufacturing materials convictions would merge with the aggravated 

participation conviction. The State recommended a 14-year concurrent sentence on the 

unlawful disposal of methamphetamine manufacturing waste conviction. Thereafter,

Judge Schwarm found that the participation in methamphetamine manufacturing and 

unlawful possession of methamphetamine manufacturing materials convictions did in fact 

merge with the aggravated participation conviction. Accordingly, he sentenced the 

defendant only on the aggravated participation in methamphetamine manufacturing 

conviction and the unlawful disposal of methamphetamine manufacturing waste 

conviction. He sentenced the defendant to 35 years in the Illinois Department of 

Corrections, followed by a 3-year term of mandatory supervised release (MSR), on the 

aggravated participation conviction, and to a concurrent term of 10 years, followed by 2 

years of MSR, on the unlawful disposal conviction. Both sentences were to be served at 

75%.

¶ 13 On June 16, 2014, a hearing was held before the Honorable Michael D. McHaney, 

wherein the defendant asked that his sentence be reduced. The State responded that the 

defendant’s 35-year sentence on his Class X felony conviction “was approximately in the 

middle” of the 15- to 60-year sentencing range for the conviction, and that the 10-year 

concurrent sentence “was not the top end” of the 3- to 14-year sentencing range for that 

conviction. The defendant’s motion was denied, and this timely appeal followed.
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¶ 14 ANALYSIS

¶ 15 On appeal, the defendant does not challenge his conviction and sentence for 

unlawful disposal of methamphetamine manufacturing waste. Accordingly, that

conviction and sentence are affirmed. With regard to his conviction for aggravated 

participation in methamphetamine manufacturing, he challenges the sufficiency of the 

evidence, contending that because the State presented no evidence that a building, 

purported to be a church, operated as a place of worship on the date in question, his

conviction must be reduced to simple participation in methamphetamine manufacturing, 

and this case must be remanded for a new sentencing hearing on that conviction. The 

State responds that (1) the defendant has forfeited his challenge because it is not really a 

sufficiency of the evidence argument but is instead a challenge for lack of proper 

foundation, and (2) forfeiture notwithstanding, there was adequate evidence adduced at 

trial from which the jury could have inferred that St. James Lutheran Church operated as 

a place of worship on the date in question.

¶ 16 We find the State’s first argument unconvincing. The gist of the State’s first 

argument is that although sufficiency of the evidence challenges are not subject to the 

doctrines of forfeiture or waiver, in this case, the defendant’s challenge is in fact “an 

argument as to lack of proper foundation for the testimony of the police officers on 

whether the building was actually a place of worship,” and therefore is subject to the 

doctrines of forfeiture and waiver. As a factual matter, this is simply incorrect. No officer 

testified at trial “on whether the building was actually a place of worship,” and the 
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defendant does not contend on appeal that if the officers had so testified, they would have

lacked a sufficient foundation for so doing.

¶ 17 We turn, therefore, to the question of the sufficiency of the evidence. “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. Boykin, 2013 IL App (1st) 

112696, ¶ 6. Instead, we ask “ ‘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.’ ” Id. (quoting Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). We do not substitute our judgment for that of the trier of fact on 

issues of the weight of the evidence presented or the credibility of the witnesses who 

testified. Id. However, it is fundamental to our system of justice that the State bears the 

burden of proving, beyond a reasonable doubt, all essential elements of the charged 

offense, and where the evidence that has been adduced at trial is so unsatisfactory as to 

justify a reasonable doubt of the defendant’s guilt, we must reverse a defendant’s 

conviction. Id. If, from the evidence presented to the trier of fact at trial, we can 

reasonably draw an inference in the State’s favor, we will draw that inference. People v. 

Sims, 2014 IL App (4th) 130568, ¶ 131. Nevertheless, caution is warranted, as “[t]he line 

between a reasonable inference and speculation can be difficult to locate.” Id. ¶ 138.

¶ 18 In this case, the parties agree that the statutory section at issue is section 

15(b)(1)(H) of the Methamphetamine Control and Community Protection Act (Act) (720 

ILCS 646/15(b)(1)(H) (West 2012)), which, at the time of the alleged offense, stated that 

a person engages in aggravated participation in methamphetamine manufacturing if the 
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person knowingly participates in the manufacture of methamphetamine with the intent 

that methamphetamine or a substance containing methamphetamine be produced, and 

“the methamphetamine manufacturing occurs within 1,000 feet of a place of worship or 

parsonage.”1 We note that no published opinions interpret section 15(b)(1)(H) of the Act. 

However, as the State notes, section 2-15b of the Criminal Code of 2012 defines “place 

of worship” as “a church, synagogue, mosque, temple, or other building, structure, or 

place used primarily for religious worship and includes the grounds of a place of 

worship.” 720 ILCS 5/2-15b (West 2012). Therefore, we agree with the parties that cases 

interpreting enhancement provisions of statutes other than the Act, that also refer to 

locations fitting the “place of worship” definition, are among the appropriate guides for 

us as we consider the defendant’s sufficiency of the evidence challenge.

¶ 19 In support of his argument on appeal, the defendant points to People v. Ortiz, 2012 

IL App (2d) 101261, ¶¶ 6, 10-13, wherein our colleagues in the Second District held that, 

for purposes of a bench trial conviction pursuant to section 407(b) of the Illinois 

Controlled Substances Act (which makes it illegal to deliver less than one gram of a 

controlled substance within 1,000 feet of a “church, synagogue, or other building, 

structure, or place used primarily for religious worship” (720 ILCS 570/407(b)(1) (West 

2008))), the State’s failure to prove beyond a reasonable doubt that the building in 

question functioned primarily as a place of worship on the date of the offense rendered 

 1

Because the defendant’s simple participation in methamphetamine manufacturing conviction 

involved 400 or more grams but less than 900 grams, on remand he will be subject to a sentence of 

between 12 to 50 years, rather than the sentence of 15 to 60 years he faced under the enhancement the 

State failed to adduce testimony to prove. See 720 ILCS 646/15(a)(2)(d), (b)(2)(d) (West 2012).
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the evidence insufficient to sustain the defendant’s conviction, despite the trial court’s 

conclusion that it could reasonably infer from photographs and testimony admitted at trial 

that the building was in fact a church. The Ortiz court noted that the photographs and 

testimony were insufficient because they did not support the temporal requirement that 

the church must have existed on the date of the offense; instead, the evidence adduced by 

the State left “no way of knowing whether the Emmanuel Baptist Church existed on 

January 7, 2009.” 2012 IL App (2d) 101261, ¶ 11. Subsequent to Ortiz, our colleagues in 

the Second District reiterated, in People v. Cadena, 2013 IL App (2d) 120285, ¶¶ 13, 16, 

that to sustain a conviction pursuant to section 407(b), the State must prove beyond a 

reasonable doubt that the building in question was functioning primarily as a place of 

worship on the date of the offense or offenses, holding that testimony that a church was 

“an active church,” without specifying that it was active on the date of the offense or 

offenses, rather than at the time of trial, was insufficient. The Cadena court added that the 

State must also prove beyond a reasonable doubt how it is known that the building in 

question was functioning primarily as a place of worship on the date of the offense or 

offenses, noting that “the bare facts that [a] witness is a police officer with a certain 

number of years of service” is not sufficient—instead, there must be “the demonstration 

and explanation of how the witness is familiar with the enhancing location.” Id. ¶ 17.

Thereafter, in People v. Rodriguez, 2014 IL App (2d) 130148, ¶¶ 60-68, our colleagues in 

the Second District applied the same analysis to a conviction pursuant to an enhancement 

to the aggravated discharge of a firearm statute vis-à-vis the occurrence of the offense 

within 1000 feet of a school (see 720 ILCS 5/24-1.2(b) (West 2010)). The Rodriguez
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court concluded that the State had proven the temporal requirement beyond a reasonable 

doubt where the State presented sufficient testimony from which “the jury reasonably 

could infer that the building comprising Brady Elementary was operating as a school on 

the date of the offense.” 2014 IL App (2d) 130148, ¶ 66.

¶ 20 The State, on the other hand, points to People v. Foster, 354 Ill. App. 3d 564, 566-

68 (2004), wherein—years prior to the Ortiz, Cadena, and Rodriguez decisions—our 

colleagues in the First District held that, for purposes of a bench trial conviction pursuant 

to section 407(b), the stipulation of the parties that, if called, a witness “would testify he 

measured the distance from 4310 West Crystal Street to the New Hope Church located at 

4255 Division Street” and that the distance “measured 580 feet” was sufficient to sustain 

the defendant’s conviction because “a rational trier of fact could have inferred New Hope 

Church was a church used primarily for religious worship based on its name.” The State 

urges us to rely on Foster and a Fourth District case interpreting it—People v. Sims, 2014 

IL App (4th) 130568—to conclude that in the present case, “the evidence presented by 

the State at trial established Officer Bowling’s personal knowledge of the area as of 

January 30, 2013,” and that a reasonable jury could have inferred from Bowling’s 

testimony that “St. James Lutheran Church operated as a place of worship and was within 

1,000 feet of the residence in question as of January 30, 2013.”

¶ 21 In reply, the defendant contends that Foster is logical, and therefore persuasive, 

only when limited to its own factual posture: a stipulation wherein the location in

question was specifically referred to as “New Hope Church”—a phrase that included the 

word “church.” As the defendant points out, when a stipulation is involved, a party is 
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generally “precluded from attacking or contradicting any facts to which” the party has 

previously stipulated. People v. Hill, 345 Ill. App. 3d 620, 631 (2003). Therefore, it 

would have been patently unfair in Foster to allow the defendant, on appeal, to attack the 

sufficiency of his own stipulation at trial that the building was a church. Under the 

circumstances of such a stipulation, we agree with the defendant—and the Foster court—

that a reasonable trier of fact could have inferred from the stipulation that the building 

was a church used primarily for religious worship, based on its name.

¶ 22 Unlike in Foster, in this case there was no stipulation. The relevant testimony 

adduced at trial in this case is set out in detail above. In its brief on appeal the State tries 

to string together this testimony in a manner that would support a reasonable inference

that St. James Lutheran Church was functioning primarily as a place of worship on 

January 30, 2013. The State posits that Bowling’s testimony that he had been a Vandalia 

police officer for almost seven years and that the church was on the same block as the 

county courthouse, as well as his use of street names relative thereto and his testimony as 

to the relationship between the church and other businesses, would allow the jury to 

“reasonably infer that he was familiar with the area to which he was testifying.”

¶ 23 The foregoing notwithstanding, the fact remains that there was no direct testimony

from the two officers that they were familiar with the area in question on the date of the 

offense. Although Bowling’s testimony might support the inference that he was familiar 

with the area at the time of trial, there is nothing about the testimony that would support 

the inference that he was familiar with the area on the date of the offense. Bowling was 

not asked if he was, or had ever been, a patrol officer, nor was he asked any questions 
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about what his general duties as a police officer entailed, or if he was familiar, because of 

those duties or otherwise, with the area in question, as opposed to other areas of 

Vandalia. In terms of his duties, he testified only to attempting to serve an outstanding 

warrant, to previous experience investigating the manufacturing of methamphetamine, to 

using a measuring wheel customarily used for traffic accidents, and to his actions in 

investigating the present offense at Wright’s residence. Likewise, although Halleman 

testified that his duty, on the night he was dispatched to Wright’s residence, was “patrol,”

he did not testify that he was familiar with the area to which he was dispatched, as 

opposed to other areas of Vandalia and his larger jurisdiction of Fayette County that he 

might have patrolled or that he had ever patrolled that area before or since the date of the 

offense. In fact, when Halleman testified that he was familiar with the defendant’s truck, 

he testified that he had seen the truck “around the county” and parked at the defendant’s 

residence, which was not on the same street as Wright’s residence.

¶ 24 In conjunction with these deficiencies in the evidence the State adduced in its 

effort to obtain a conviction for aggravated participation in methamphetamine 

manufacturing, there was also no direct testimony, from the officers or anyone else, that 

St. James Lutheran Church was functioning primarily as a place of worship on January 

30, 2013, or, for that matter, that it had ever functioned primarily as a place of worship. 

Nor do we believe, based upon the testimony presented, that a reasonable jury could have 

inferred that the building in question was functioning primarily as a place of worship on 

January 30, 2013. There was no testimony to support such a temporal inference. As a 

matter of both logic and common sense, there is no inherent rational connection between 
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a witness’s mere use of the term “church” at trial and the fact that the “church” was or 

was not functioning primarily as a place of worship on a particular date prior to trial.

Although the State claims that if St. James Lutheran Church was not operating as a 

church on both the date of trial and the date of the offense, Bowling would have referred 

to it at trial as a “currently a church” rather than as a “church,” we find this contrary to 

logic and common sense; more convincing is the argument of the defendant that a 

building that once housed a church might still be referred to, by people in the locality, by 

the name of the former church—or generically as the “church”—even if it no longer 

functioned primarily as one, either at the time of the offense or the time of the trial. We 

also agree with the defendant that “it is common sense that churches and other entities 

cease to operate” while “their physical structures and signs can remain unchanged.”

Moreover, the defendant is correct in his assertion that Bowling’s and Halleman’s 

consistent use of the present tense, rather than the past tense, when referring to the 

“church” at trial does not support the inference that the building in question functioned 

primarily as a place of worship on the date of the offense, as opposed to on the date of the 

trial. Therefore, although on appeal the State makes a valiant effort to string together the 

testimony in this case in such a way as to create the inference that St. James Lutheran 

Church was functioning primarily as a place of worship on January 30, 2013, the State 

failed, at trial, to adduce testimony sufficient to render such an inference reasonable. The 

State’s presentation of evidence in support of its theory of aggravated participation in 

methamphetamine manufacturing was, at best, cursory. The State’s theory that the jury

could have strung together the pieces of Bowling’s and Halleman’s testimony to infer 
17

that they were familiar with the area in question, and to further infer from their familiarity 

that their testimony should be construed to imply that St. James Lutheran Church was 

functioning primarily as a place of worship on January 30, 2013, is also dubious in light 

of Judge Schwarm’s repeated admonitions that the jury was to refrain from independent 

investigation and was to “listen to the evidence and base your decision on the evidence.”

As the Sims court noted, “[t]he line between a reasonable inference and speculation can 

be difficult to locate.” 2014 IL App (4th) 130568, ¶ 138. In this case, we believe 

speculation, rather than reasonable inference, would have been required for the jury to 

convict the defendant of aggravated participation in methamphetamine manufacturing on 

the basis of the foregoing evidence.

¶ 25 We note another problem with accepting the State’s invitation to affirm the 

defendant’s conviction on the basis of Foster: the Foster court omitted entirely from its 

legal analysis the temporal nature of the evidence the State was required to present: that 

the location in question must have been functioning primarily as a place of worship on 

the date of the offense.

2 Although the Sims court restates the holding of Foster to include 

the temporal requirement (see Sims, 2014 IL App (4th) 130568, ¶ 107), in fact, the Foster 

court did not address it at all (see 354 Ill. App. 3d at 567-68).3 Perhaps within the context 

of a stipulation, this omission is acceptable, for a reasonable argument could be advanced 

 2

There is no requirement, for purposes of section 407(b), that religious services actually be in 

session at the time of the offense (see, e.g., People v. Sparks, 335 Ill. App. 3d 249, 257 (2002)), nor does 

either party in this case argue that there should be such a requirement for section 15(b)(1)(H) of the Act.

3

With regard to affirming on the basis of Foster, Sims does not aid the State. Although the Sims

court purported to follow Foster (see Sims, 2014 IL App (4th) 130568, ¶ 133), in fact it did not: it 

followed its own modified version of Foster—one that included the temporal requirement that was not 

present in Foster. See id. ¶¶ 134-138.
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that the stipulation that the building was a church inherently included the stipulation that 

it was operating as such on the date of the offense in question. However, in the absence 

of such a stipulation, the Foster court’s omission of the temporal requirement is fatal to 

the application of Foster beyond its unique set of facts. The Supreme Court of Illinois has 

held that enhancements due to proximity to places of worship pass due process and 

constitutional muster because places of worship, like schools and other zones of 

enhancement, cater to “segments of our society which may well be considered 

particularly vulnerable and less able to deal with the incursions of drug trafficking and its 

related evils.” People v. Falbe, 189 Ill. 2d 635, 643, 647 (2000). The Falbe court noted 

the previous reasoning of this court that “ ‘[p]laces of worship reach out and extend an 

invitation to the public; doors are unlocked; security is relaxed’ ” (id. at 647 (quoting 

People v. Carter, 228 Ill. App. 3d 526, 534-35 (1992))), and concluded that “[t]he very 

ideals of those who worship there can make them vulnerable in the same sense that 

school children, the poor, and the aged may be at risk” (id. at 647-48). Clearly, if a 

building does not function primarily as a place of worship on the date of an alleged 

offense, the concerns expressed by this court in Carter, and the Supreme Court of Illinois 

in Falbe, are not present. Accordingly, the absence of a temporal requirement would call 

into question the due process and constitutional soundness of any statutory scheme that 

purported to allow enhancement on the basis of proximity to a place of worship.

¶ 26 A final reason to doubt the viability of Foster outside the context of a stipulation is 

found in Boykin, 2013 IL App (1st) 112696, ¶ 16, which, like Foster, came from our 

colleagues in the First District, but which incorporated the temporal requirement found in 
19

Cadena and other cases and concluded that the section 407(b) conviction enhancement 

before it could not be sustained because the evidence was “insufficient to prove beyond a 

reasonable doubt that ‘Our Lady of Peace’ was a school on the date of the offense.” In 

any event, its citation to Foster and its request that we follow Foster notwithstanding, in 

this case the State concedes the temporal requirement, devoting long passages of its brief 

on appeal to an analysis of how the jury could have inferred that St. James Lutheran 

Church “existed and was in operation on [the date of the offense]” and presenting no 

argument that a court can dispense with the temporal requirement.

¶ 27 In the case before us, we conclude that the State did not adduce sufficient evidence

at trial to render reasonable the inference that St. James Lutheran Church was functioning 

primarily as a place of worship on January 30, 2013. Accordingly, the State failed to 

prove, beyond a reasonable doubt, that the defendant was guilty of aggravated 

participation in methamphetamine manufacturing. We agree with our colleagues in other 

districts of this court that in the absence of a stipulation, the State must present evidence, 

from a witness or witnesses who are sufficiently familiar with the area in question, that 

supports a reasonable inference that the building in question was functioning primarily as 

a place of worship on the date of the offense. See, e.g., Rodriguez, 2014 IL App (2d) 

130148, ¶¶ 65-66.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we affirm the defendant’s conviction and sentence for 

unlawful disposal of methamphetamine manufacturing waste, reduce the defendant’s 

aggravated participation in methamphetamine manufacturing conviction to simple 
20

participation in methamphetamine manufacturing, and remand for a new sentencing 

hearing on that conviction.

¶ 30 Affirmed in part; conviction reduced; cause remanded.

¶ 31 JUSTICE WELCH, concurring in part and dissenting in part.

¶ 32 I respectfully dissent from that portion of the majority’s opinion finding that the 

defendant’s aggravated participation in methamphetamine manufacturing should be 

reduced to simple participation in methamphetamine manufacturing.

¶ 33 Officer Bowling testified that on January 30, 2013, he was near Wright’s residence 

when he smelled a chemical odor he suspected was related to methamphetamine 

manufacturing. He testified that the home was 111 feet south of the St. James Lutheran 

Church. On several other occasions during his testimony, he referred to St. James 

Lutheran Church as the “church.” His testimony generally establishes that he had 

personal knowledge of the area. Defense counsel also referred to the building as a 

“church” on cross-examination. Deputy Sheriff Larry Halleman also testified that on

January 30, 2013, he traveled “behind the church directly across from” Wright’s 

residence. Finally, in the defendant’s motion for judgment of acquittal notwithstanding 

the verdict, defense counsel conceded that the residence was within 1000 feet of a place 

of worship.

¶ 34 In viewing the evidence in light most favorable to the prosecution, a rational trier 

of fact could have inferred that St. James Lutheran Church was a church used primarily 
21

for worship on the date of the offense. See People v. Foster, 354 Ill. App. 3d 564, 568 

(2004). Taken together, the State demonstrated that “the methamphetamine 

manufacturing occur[red] within 1,000 feet of a place of worship or parsonage” to 

enhance the conviction to aggravated participation in methamphetamine manufacturing. 

720 ILCS 646/15(b)(1)(H) (West 2012). Accordingly, I would find that the testimony 

was sufficient for the jury to find beyond a reasonable doubt that St. James Lutheran 

Church was used primarily as a place for religious worship on January 30, 2013. I would 

affirm the trial court’s judgment.

¶ 35 I concur with that portion of the majority’s opinion regarding the unlawful 

disposal of methamphetamine manufacturing waste.
2017 IL App (5th) 140300

NO. 5-14-0300

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Fayette County.

)

v. ) No. 13-CF-24

)

MICHAEL FICKES, ) Honorable

) Michael D. McHaney, 

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________

Opinion Filed: May 4, 2017

______________________________________________________________________________

Justices: Honorable James R. Moore, P.J.

Honorable Richard P. Goldenhersh, J., concurred

Honorable Thomas M. Welch, J., concurred in part and dissented in 

part

______________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy

for Defender, Alexander G. Muntges, Assistant Appellate Defender, Office 

Appellant of the State Appellate Defender, Fifth Judicial District, 909 Water 

Tower Circle, Mt. Vernon, IL 62864

______________________________________________________________________________

Attorneys Hon. Joshua Morrison, State’s Attorney, Fayette County Courthouse,

for 221 South 7th Street, Vandalia, IL 62471; Patrick Delfino, Director, 

Appellee David J. Robinson, Acting Deputy Director, Jennifer M. Bernhardt, Staff

Attorney, Office of the State’s Attorneys Appellate Prosecutor, 730 East 

Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

______________________________________________________________________________