2018 IL 122958
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122958)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAFARIA
DEFORREST NEWTON, Appellant.
Opinion filed October 18, 2018.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, and Garman concurred
in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Neville.
OPINION
¶1 Following a McLean County jury trial, defendant Jafaria Deforrest Newton was
convicted of unlawful delivery of a controlled substance within 1000 feet of a
church in violation of the Illinois Controlled Substances Act. See 720 ILCS
570/401(d)(i), 407(b)(2) (West 2014). On appeal, he contended, inter alia, that he
was not proven guilty beyond a reasonable doubt because the State failed to offer
sufficient evidence to establish that the building was operating as a church used
primarily for religious worship. The appellate court affirmed. 2017 IL App (4th)
150798-U. For the following reasons, we affirm the judgment of the appellate
court.
¶2 BACKGROUND
¶3 Defendant was charged by indictment with unlawful delivery of a controlled
substance and unlawful delivery of a controlled substance within 1000 feet of a
church, specifically the First Christian Church located at 401 West Jefferson Street
in Bloomington, Illinois.
¶4 At trial, Detective Jared Bierbaum of the Bloomington Police Department
testified as the case agent for two controlled drug purchases that took place on
December 22, 2014, and January 1, 2015. Bierbaum was a third-year detective in
the vice unit, and prior to that he was a patrol officer. His main responsibilities
involved drug investigations and controlled purchases of drugs in the McLean
County area. He stated that his unit handled hundreds of drug cases a year.
¶5 On December 22, 2014, and again on January 1, 2015, Detective Bierbaum
initiated an investigation and a controlled buy at 410 North Roosevelt Street. He
testified regarding his familiarity with the area where the deliveries were made. He
stated that he was familiar with the First Christian Church in Bloomington and that
the deliveries were made about a block and a half north of the church at the
intersection of West Jefferson Street and North Roosevelt Avenue. The church
building spanned the whole block.
¶6 In both his professional and personal experience, Bierbaum had occasion to
drive or walk past the church. He testified that he knew this property was a church
on December 22, 2014, because it had signage for a church and he had observed
cars coming and going from the church parking lot. As far as he knew, the property
was still operating as a church two weeks later, on January 1, 2015. He did not go to
church there that day, but he saw vehicles coming and going from the parking lot
and parked his vehicle very close to the church. As far as he knew, the church was
still in operation at the time of trial.
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¶7 Bierbaum further testified that the distance between the address where the
delivery was made and the front door of the church was 518 feet. While taking the
measurements, Bierbaum also took photographs, including one that depicted the
sign on the property. The photographs were admitted into evidence without
objection. The sign read “First Christian Church” and contained an image of a red
goblet with a white cross. The photograph depicted a lit electric lantern just left of
the church doors. Bierbaum noticed that the grass had been mowed and the sign
was in good condition.
¶8 Defense counsel made no objection to Bierbaum’s testimony concerning the
First Christian Church and did not cross-examine him with regard to any of his
testimony related to the church. In closing argument, the defense theory was that
the State failed to establish that defendant actually participated in the drug
transactions, arguing that he was merely present. Defense counsel made no
argument regarding a lack of sufficient evidence to prove the transaction occurred
within 1000 feet of a church.
¶9 The jury found defendant guilty of unlawful delivery of a controlled substance
and unlawful delivery of a controlled substance within 1000 feet of a church,
related to the drug transaction on January 1, 2015. The locality enhancement
increased the penalty from a Class 2 offense to a Class 1 offense. However, due to
his prior criminal history, defendant was required to be sentenced as a Class X
offender with a minimum six-year sentence. He was sentenced to eight years in
prison, two years above the mandatory minimum sentence. 1 Defendant filed a
posttrial motion challenging the sufficiency of the evidence related to the drug
transaction but made no argument that the evidence failed to show that the drug
transaction occurred within 1000 feet of a church.
¶ 10 On appeal to the appellate court, defendant challenged the sufficiency of the
evidence to prove him guilty of the offense. He also argued for the first time that the
State failed to prove beyond a reasonable doubt that the transaction occurred within
1000 feet of a church. The appellate court disagreed, finding that, after viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could
1
We note that, in this case, the Class X sentencing would have still been mandatory even if
defendant had been convicted of the Class 2 offense of unlawful delivery of a controlled substance
based on his criminal history. See 730 ILCS 5/5-4.5-95(b) (West 2014).
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have found that the building housing the church was being used as a church on the
date of the offense. 2017 IL App (4th) 150798-U, ¶ 29. We allowed defendant’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2017).
¶ 11 ANALYSIS
¶ 12 Before this court, defendant no longer challenges the sufficiency of the
evidence to prove him guilty of the offense of unlawful delivery of a controlled
substance. Rather, he only challenges the sufficiency of the evidence regarding
whether he committed the offense within 1000 feet of a church. Specifically, he
maintains that the statute required the State to demonstrate with particularized
evidence that the church was used primarily for religious worship at the time of the
offense. He argues that Bierbaum failed to establish sufficient familiarity with the
use of the First Christian Church to provide the necessary evidence to show that it
was used primarily as a place of religious worship at the time of the offense. He
cites our recent decision in People v. Hardman, 2017 IL 121453, in support.
¶ 13 Enhanced Penalty Provision
¶ 14 Defendant’s argument requires that we first address statutory construction. The
fundamental objective of statutory construction is to ascertain and give effect to the
legislature’s intent. People v. Giraud, 2012 IL 113116, ¶ 6. The most reliable
indicator of legislative intent is the language of the statute, given its plain and
ordinary meaning. Id. The words and phrases in the statute are to be construed in
light of other relevant provisions and not in isolation. People v. Bradford, 2016 IL
118674, ¶ 15. Where the language is plain and unambiguous, it must be applied
without resort to further aids of statutory construction. Id. Statutory construction is
an issue of law subject to de novo review. People v. Howard, 2017 IL 120443, ¶ 19.
¶ 15 Defendant was convicted of section 401(d)(i) of the Illinois Controlled
Substances Act, which makes it unlawful to deliver less than one gram of any
substance containing cocaine. 720 ILCS 570/401(d)(i) (West 2014). Section 407(b)
enhances the penalty for delivering controlled substances within certain proximity
to sensitive locations where vulnerable populations may be located, including a
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school, church, public park, public housing complex, or senior citizen home. Id.
§ 407(b); People v. Falbe, 189 Ill. 2d 635, 647-48 (2000).
¶ 16 Relevant to this case, section 407(b)(2) of the Act enhances the penalty for that
offense from a Class 2 to a Class 1 felony when the violation occurs “within 1,000
feet of the real property comprising any church, synagogue, or other building,
structure, or place used primarily for religious worship.” 720 ILCS 570/407(b)(2)
(West 2014).
¶ 17 The statute specifically lists a church and synagogue as places subject to the
locality enhancement. A church and synagogue are both examples of buildings that
are, by definition, used primarily for religious worship. Webster’s Third New
International Dictionary 404, 2318 (1993). The next phrase, “or other building,
structure, or place used primarily for religious worship,” identifies a general
catchall of all other buildings, structures, or places not listed that share that
common attribute. (Emphasis added.) 720 ILCS 570/407(b)(2) (West 2014). The
legislature recognized that it would not be possible to specifically list all places
used primarily for religious worship. Thus, under the plain reading of the statute,
for a location to fall within the ambit of the statute, it must be property that is used
primarily for religious worship, and the legislature has already determined that a
church or a synagogue meets that requirement.
¶ 18 Defendant argues our decision in Hardman requires that we construe the statute
to require particularized evidence that the enhancing locality was a church used
primarily for religious worship, essentially arguing for a construction in which
“used primarily for religious worship” modifies church. In Hardman, however, we
were not specifically called upon to construe the language of section 407(b)(2)
pertaining to churches. Rather, we were called upon to construe the locality
enhancement provision for certain offenses occurring within 1000 feet of the real
property comprising a school under section 407(b)(1). Hardman, 2017 IL 121453,
¶ 14.
¶ 19 In rejecting the defendant’s argument that particularized evidence was needed
to show that a building is an active or operational school on the day of the offense,
we contrasted the school provision with the provision at issue here and with the
provision in section 407(c) (720 ILCS 570/407(c) (West 2012)). Hardman, 2017 IL
121453, ¶ 32. We noted that unlike the school provision, the provision at issue here
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had a “use” requirement, which we would not read into the school provision, and
that section 407(c) made the time of day, time of year, and whether classes were
currently in session at the time of the offense irrelevant. Id. ¶¶ 31-32.
¶ 20 To clarify, in Hardman, we were not asked to consider whether a given place is
a place primarily used for religious worship. That question is ultimately fact
intensive and will depend on the particular facts and circumstances of a given case.
In some cases, the trier of fact may be presented with a property that has the classic,
iconic characteristics of a church. As explained, a “church” is, by definition,
already recognized in its ordinary and popular meaning as a place primarily used
for religious worship. To say then, as defendant does, that under the plain reading
of the statute the State must prove that the enhancing locality was a church “used
primarily for religious worship” is redundant. In that case, as the legislature has
already determined, the trier of fact may make reasonable inferences that flow from
the facts presented and apply his or her common knowledge regarding a church to
find that it is what it purports to be.
¶ 21 In other cases, the trier of fact may be asked to consider whether other particular
structures are places of worship. See, e.g., Falbe, 189 Ill. 2d at 648-49 (where the
defendant posed hypotheticals about whether an abandoned barn was a “place of
worship”); People v. Sparks, 335 Ill. App. 3d 249, 256 (2002) (whether a Salvation
Army chapel inside a Salvation Army building was a place used primarily for
religious worship). In those cases, it may be more difficult for the trier of fact to
discern whether the particular structure is being used primarily as a place of
worship because it lacks the traditional characteristics of a place of worship.
Accordingly, to meet its burden, the State may need to provide additional evidence
in those cases to determine how the particular structure is being used. See, e.g.,
Sparks, 335 Ill. App. 3d at 251, 258 (holding that the evidence was sufficient to
prove that the Salvation Army chapel was a place used primarily for religious
worship where the minister testified that the chapel located in the building was used
exclusively for religious services).
¶ 22 In this case, the trier of fact was not asked to consider whether some “other”
building or structure constituted a place used primarily as a place of worship. Here,
the charging instrument alleged that the transaction occurred within the relevant
proximity to the First Christian Church. Thus, in this context, the only question is
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whether the State proved beyond a reasonable doubt that there was a church at that
location at the time of the offense.
¶ 23 Sufficiency of the Evidence
¶ 24 When considering a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found the required elements beyond a
reasonable doubt. People v. Wright, 2017 IL 119561, ¶ 70. “[I]t is not the function
of this court to retry the defendant.” People v. Evans, 209 Ill. 2d 194, 209 (2004).
All reasonable inferences from the evidence must be drawn in favor of the
prosecution. “ ‘[I]n weighing evidence, the trier of fact is not required to disregard
inferences which flow normally from the evidence before it, nor need it search out
all possible explanations consistent with innocence and raise them to a level of
reasonable doubt.’ ” Hardman, 2017 IL 121453, ¶ 37 (quoting People v. Jackson,
232 Ill. 2d 246, 281 (2009)). We will not reverse the trial court’s judgment unless
the evidence is so unreasonable, improbable, or unsatisfactory as to create a
reasonable doubt of the defendant’s guilt. Wright, 2017 IL 119561, ¶ 70.
¶ 25 In this case, Detective Bierbaum identified the real property at 401 West
Jefferson Street as the First Christian Church and presented testimony that he had
personal knowledge and familiarity with the area. He had been a detective and
patrol officer in the jurisdiction for several years and was familiar with the First
Christian Church, having driven or walked by it in his professional and personal
experience. His professional experience included patrolling and surveillance in the
community. He testified that the First Christian Church was operating as a church
at all relevant times. There was signage with the name of a church, as well as a
cross and a goblet, all probative evidence from which a trier of fact could discern
there was a church at that location. The jury was also made aware that the lantern by
the front doors of the building was lit, the grass had been mowed, and cars were
seen coming and going from the parking lot.
¶ 26 Taken in the light most favorable to the State, this evidence is not so
unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt that
there was a church at 401 West Jefferson Street and it was functioning as it
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purported to be on the day of the offense. We will not substitute our judgment for
that of the trier of fact on these matters. Evans, 209 Ill. 2d at 209.
¶ 27 Defendant’s essential argument is that one could imagine a scenario in which a
church might have been converted into another use or might be abandoned. Merely
because these scenarios are possible does not mean that a jury cannot rely on the
reasonable inferences that flow from the unrebutted evidence. The State need not
disprove or rule out all possible factual scenarios. Hardman, 2017 IL 121453, ¶ 37;
Michael H. Graham, Cleary and Graham’s Handbook of Illinois Evidence § 401.1,
at 147 (9th ed. 2009) (“The inference to be drawn need not be the only conclusion
logically to be drawn; it suffices that the suggested inference may reasonably be
drawn therefrom. [Citations.]”).
¶ 28 Nor, as defendant conceded, did the State have to establish that there were
worship services going on at the specific time of the unlawful delivery. People v.
Daniels, 307 Ill. App. 3d 917, 929 (1999). Additionally, a trier of fact is allowed to
consider the evidence in light of his or her own knowledge and observations in the
affairs of life. People v. Hobley, 182 Ill. 2d 404, 465 (1998). Taking the unrebutted
evidence in the light most favorable to the State, we cannot say that no rational trier
of fact could have found that the evidence presented gave rise to a reasonable
inference that the location was a church and that it was functioning as it purported
to be at the time of the offense.
¶ 29 Defendant urges us to follow People v. Cadena, 2013 IL App (2d) 120285, and
People v. Fickes, 2017 IL App (5th) 140300, cases where the appellate court found
a lack of sufficient evidence. We find those cases distinguishable. In Cadena, the
only evidence presented was a police officer’s affirmative response to the leading
question that the Evangelical Covenant Church was an active church and that the
church was 860 feet from the drug transaction. The court held, under those facts,
the testimony lacked any temporal context (Cadena, 2013 IL App (2d) 120285,
¶ 16) and lacked any indication as to the officer’s personal knowledge that the
location was an active church at the time of the offense (id. ¶ 18). The court did not
hold that knowledge of specific church activities was a necessary condition to
proving the enhancing location was a church at the time of the offense. Rather, the
court stated that a police officer, “who testified to being familiar with the church
from having regularly patrolled the neighborhood, would have had sufficient
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personal knowledge to testify as to the church’s active status.” Id. In Fickes, the
only testimony was essentially that the transaction took place just south of the St.
James Lutheran Church, behind the church. The court found a temporal problem
with the proof at trial and that the officer’s mere reference to the term “church”
alone was insufficient to create a reasonable inference that it functioned as a church
at the time of the offense. Fickes, 2017 IL App (5th) 140300, ¶ 24. Here, the State’s
evidence does not suffer from these infirmities.
¶ 30 CONCLUSION
¶ 31 For all of the foregoing reasons, we affirm the judgment of the appellate court,
which affirmed defendant’s conviction for unlawful delivery of a controlled
substance within 1000 feet of a church.
¶ 32 Affirmed.
¶ 33 JUSTICE BURKE, dissenting:
¶ 34 I disagree with the majority’s holding that the State presented sufficient
evidence to convict defendant of unlawful delivery of a controlled substance within
1000 feet of a church in violation of the Illinois Controlled Substances Act (Act).
See 720 ILCS 570/401(d), 407(b)(2) (West 2014). The majority holds that evidence
that a particular building has the “traditional characteristics” of a church is
sufficient to prove the enhancing factor beyond a reasonable doubt. The majority’s
statutory analysis is unconstitutional and unworkable, and it contravenes the
purpose of the statute. As a result, the majority’s conclusion with regard to the
sufficiency of the evidence is fundamentally erroneous. For these reasons, I
respectfully dissent.
¶ 35 At issue in this appeal is whether defendant was convicted beyond a reasonable
doubt of unlawful delivery of a controlled substance within 1000 feet of a church
on January 1, 2015, pursuant to section 407(b)(2) of the Act. Id. § 407(b)(2). The
statute enhances the penalty for unlawful delivery of a controlled substance from a
Class 2 to a Class 1 felony when the violation occurs “within 1,000 feet of the real
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property comprising any church, synagogue, or other building, structure or place
used primarily for religious worship.” Id. The majority begins its analysis by
recognizing that the plain, ordinary meaning of the word, “church,” as defined in
the dictionary, is a “building *** used primarily for religious worship.” Supra ¶ 17
(citing Webster’s Third New International Dictionary 404 (1993)). I agree with this
definition. When a statute does not expressly define a term, it is appropriate for a
reviewing court to use a dictionary to ascertain the ordinary and popularly
understood meaning of the term. See People v. Bingham, 2014 IL 115964, ¶ 55;
People v. Chapman, 2012 IL 111896, ¶ 24.
¶ 36 Having defined the meaning of the word “church,” the logical next step would
be to determine whether there was evidence that, in this case, the building at issue
was “used primarily for religious worship” at the time of defendant’s offense.
Remarkably, however, the majority does not do this. Instead, the majority holds
that evidence that the exterior of the building looks like a church, i.e., “has the
classic, iconic characteristics of a church,” is sufficient. Supra ¶ 20. The majority
holds that, if the State has proven that a building has the “traditional
characteristics” of a church or synagogue, then it has also proven that the building
was “functioning” as a church or synagogue on the date of the offense. Supra ¶¶ 20,
26-28, 31. In other words, if a building has the “classic” appearance of a church or
synagogue, the State does not need to present any additional evidence regarding
how the structure was actually being used. Supra ¶¶ 20. However, if a building or
structure “lacks the traditional characteristics of a place of worship,” the State, in
order to meet its burden of proof, “may need to provide additional evidence *** to
determine how the particular structure is being used.” Supra ¶ 21.
¶ 37 According to the majority, the reason for relieving the State of its burden of
proving that a church or synagogue is used primarily for religious worship is
because “churches” and “synagogues” already are defined as buildings used
primarily for religious worship. Requiring the State to present additional evidence
of the primary use of these buildings would be “redundant.” Supra ¶¶ 18-20. Thus,
according to the majority, the ultimate fact that a building is used primarily for
religious worship is presumed from evidence that the building’s exterior has the
“classic” appearance of a church or synagogue. Implicit in this reasoning is that a
defendant can rebut this presumption by presenting evidence that a building that
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looks like a church or synagogue is, in fact, not being used primarily for religious
worship. There are a number of serious problems with this analysis.
¶ 38 First, the majority is reading into the statute a rebuttable presumption of the
existence of an element of the offense. This is a violation of defendant’s due
process rights. A mandatory presumption is a legal device that requires the fact
finder to infer the existence of the ultimate or presumed fact upon proof of a
predicate fact. People v. Pomykala, 203 Ill. 2d 198, 203 (2003); People v. Watts,
181 Ill. 2d 133, 141-43 (1998). Under Illinois law, all mandatory presumptions are
considered per se unconstitutional. Pomykala, 203 Ill. 2d at 203-04. A mandatory
rebuttable presumption that shifts the burden of persuasion or burden of production
to the defendant violates due process because it relieves the State of its burden to
prove each element of the offense beyond a reasonable doubt. Watts, 181 Ill. 2d at
143, 145-46 (citing Sandstrom v. Montana, 442 U.S. 510, 524 (1979)). Shifting the
State’s burden to the defendant also infringes on the right to trial by jury on that
element and places undue pressure on a defendant to waive his right to remain
silent. Id. at 146. Consequently, the majority’s holding, relieving the State of its
burden to prove beyond a reasonable doubt that an alleged church is used primarily
for religious worship, is unconstitutional.
¶ 39 Furthermore, the presumption that a building is being used primarily for
religious worship merely because its façade has the traditional appearance and
iconic characteristics of a church is simply not reasonable. A church can be
abandoned or repurposed for other uses and still retain the exterior architecture, and
even the signage, of a church. See People v. Fickes, 2017 IL App (5th) 140300,
¶ 24. It is not uncommon for former churches to be purchased and converted into
other uses, such as community centers, homes, or businesses. People in the
neighborhood may even continue to refer to such a building as a “church,” even
though it is no longer in use for religious services. Id. Conversely, many churches
with modernist architectural designs lack the so-called “traditional,” “iconic”
characteristics and iconography of a church and, yet, are still used primarily for
religious services.
¶ 40 The majority’s reliance on evidence of “traditional,” “iconic” characteristics of
a church is flawed for another reason. The majority never defines what it means by
the “classic, iconic characteristics” of a church. Without any guidance by this court,
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prosecutors and the lower courts will have difficulty applying the majority’s rule
given the wide variety of structures in use as churches. For this reason alone, it is
much more logical to focus on a particular building’s primary use in determining
whether the building is a “church” within the meaning of the statute. The General
Assembly obviously intended that interpretation when it drafted the statute to
require evidence that an unlawful delivery took place “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.) 720 ILCS 570/407(b)(2)
(West 2014).
¶ 41 The majority supports its holding that no evidence of primary use is required if
a building has the “traditional characteristics” of a church by pointing to the phrase,
“or other building, structure, or place used primarily for religious worship.” Id.
Reasoning that this phrase expressly requires the State to demonstrate that a
building other than a church or synagogue is used primarily for religious worship,
the majority contends that no such evidence is required if a building is a church or
synagogue. Supra ¶ 20. The majority’s analysis is a non sequitur. The phrase in the
statute referring to “other” buildings, structures, or places has nothing to do with
determining whether a particular building meets the definition of a “church” within
the meaning of the statute. If the legislature amended section 407(b)(2) to remove
the phrase, “or other building, structure, or place used primarily for religious
worship,” and the statute simply enhanced the penalty from a Class 2 to a Class 1
felony when the violation occurs “within 1,000 feet of the real property comprising
any church or synagogue,” the State would still have to prove that the building in
question is a “church,” as that term is defined according to its ordinary and
popularly understood meaning. The fact that the statute recognizes that other types
of buildings may be primarily used for religious worship does not negate the
requirement for the State to demonstrate that a building alleged to be a church is, in
fact, a church, i.e., a building used primarily for religious worship.
¶ 42 Moreover, consider what the majority’s reading of the statute means. If an
offense occurs within 1000 feet of a building with the “traditional” appearance and
signage of a Christian church or Jewish synagogue, the State does not need to
present additional evidence of the building’s primary use. However, if the offense
occurs within 1000 feet of an “other building,” such as an Islamic mosque or Hindu
temple, with the “traditional” appearance and signage correlated with these
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structures, the State is required to provide additional evidence that the building is
primarily used for religious worship. Since this interpretation raises obvious
concerns that it violates the establishment clauses of both the first amendment to
the United States Constitution (U.S. Const., amend. I) and the Illinois Constitution
(Ill. Const. 1970, art. I, § 3), I am certain this is not what the General Assembly
intended. The most obvious reading of the statutory language is that the legislature
intended to apply a consistent definition and evidentiary requirement to all places
of worship, regardless of faith.
¶ 43 The majority’s holding that the statute requires no additional evidence of a
church’s primary use if it has the traditional characteristics of a “church” is also at
odds with the purpose of the statute. In construing a statute, our primary goal is to
ascertain and give effect to the legislative intent. People v. Davis, 199 Ill. 2d 130,
135 (2002). To that end, the court may consider, in addition to the statutory
language, “the reason and necessity for the law, the problems that lawmakers
sought to remedy, and the goals that they sought to achieve.” People v. Martin,
2011 IL 109102, ¶ 21. The reason for enhancing the penalty for delivery of a
controlled substance within a certain distance of places such as schools, nursing
homes, and places of worship is to protect vulnerable populations from drug
trafficking and its related evils. See People v. Falbe, 189 Ill. 2d 635, 643, 647
(2000). As explained by this court,
“each of the protected zones specified in section 407 appears to correspond to a
segment of our society which may well be considered particularly vulnerable
and less able to protect itself from the incursions of drug trafficking. Generally
speaking, schools, public housing, parks, places of worship, nursing homes,
assisted-living centers, and senior citizens facilities are frequented by those
who may be least able or willing to deal with drug trafficking and the crimes
associated with it.” Id. at 643.
“As noted in People v. Carter, 228 Ill. App. 3d 526, 534-35 (1992), ‘Places of
worship reach out and extend an invitation to the public; doors are unlocked;
security is relaxed.’ The 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.
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Clearly, these concerns are not present unless the building was active and in use as
a place of worship on the date of the offense. 2 See Fickes, 2017 IL App (5th)
140300, ¶ 25. If a church is no longer used for religious services, it is removed from
the purview of the statute as a place in need of special protection from drug
trafficking. Accordingly, the majority’s definition of the term “church” as a
“building with the traditional characteristics of a church” does not further the
purpose of the statute.
¶ 44 Unlike the majority, I would adhere to the plain meaning of the statute and
require the State to present evidence beyond a reasonable doubt that the building
alleged to be a church was used primarily for religious worship on the date of the
offense. The evidence introduced at trial in this case fell short of establishing this
fact. Detective Bierbaum testified that he was familiar with the First Christian
Church and had driven or walked past the church in his professional and personal
experience. He testified that on January 1, 2015, the date of the offense, he parked
across the street from the church and saw cars coming and going from the parking
lot. He also observed signage for a church. Detective Bierbaum testified that, as far
as he could tell, the property was operating as a church on the date of the offense
and was still a church at the time of trial. The detective did not enter the building or
speak to anyone affiliated with the church. Nor did he testify that he had any
knowledge that religious services were regularly held at that location. Detective
Bierbaum further testified that he took a photograph of the building’s exterior and
signage on an unspecified date sometime after January 1, 2015. Importantly, no
witness testified that the photo accurately depicted the building as it appeared on
January 1, 2015. The photo in the record depicts part of the façade of a brick
building, an outer door with a lantern affixed beside it, and a sign placed in the
ground a short distance from the building. The sign in the photo states, “First
Christian Church,” with an image of a cross and goblet.
¶ 45 If the plain, ordinary meaning of the word, “church” is applied to the evidence,
it is clear the State did not establish beyond a reasonable doubt that the building was
primarily used for religious worship. The State failed to elicit testimony from
2
I agree with the majority that the version of the statute in effect on January 1, 2015, did not
require the State to prove that worship services were actually going on at the time of the unlawful
delivery. The current version now requires such evidence. See Pub. Act 100-3 (eff. Jan. 1, 2018)
(amending 720 ILCS 570/407(b)(2)).
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anyone with personal knowledge of the building’s primary use on the date of the
offense. No pastor or parishioner testified that religious services were held at that
location or how often they occurred. Detective Bierbaum testified that he did not
enter the building or speak to anyone affiliated with the church. The signage did not
list the days and times for religious services. Nor did the State produce a church
bulletin or other documentation that the church regularly conducted religious
services.
¶ 46 In my opinion, if we are to enhance a defendant’s penalty for unlawful delivery
of a controlled substance based solely on the fact that it occurs within 1000 feet of a
church, the State should have to present evidence beyond a reasonable doubt that
the building was active and in use primarily for religious worship on the date of the
offense. This is a minimal burden, easily met. The State should have no difficulty
obtaining documentation, testimony, or an affidavit attesting to the fact that a
church regularly holds religious services. See People v. Sims, 2014 IL App (4th)
130568, ¶ 106 (“One might think that because several additional years of
imprisonment could be riding on that issue [citation], the State would ‘elicit
testimony from someone affiliated with the church,’ e.g., a pastor or parishioner
[citation].”). In this case, I would hold that the State did not carry its burden of
proof with respect to this element.
¶ 47 For the foregoing reasons, I respectfully dissent.
¶ 48 JUSTICE NEVILLE joins in this dissent.
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