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Appellate Court Date: 2020.05.22
18:26:14 -05'00'
People v. Muffick, 2019 IL App (5th) 160388
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PAMELA L. MUFFICK, Defendant-Appellant.
District & No. Fifth District
No. 5-16-0388
Rule 23 order filed November 13, 2019
Motion to
publish allowed November 22, 2019
Opinion filed November 22, 2019
Decision Under Appeal from the Circuit Court of Christian County, No. 14-CF-42; the
Review Hon. Bradley T. Paisley, Judge, presiding.
Judgment Conviction reduced; cause remanded.
Counsel on James E. Chadd, Ellen J. Curry, and Levi S. Harris, of State Appellate
Appeal Defender’s Office, of Mt. Vernon, for appellant.
Michael M. Havera, State’s Attorney, of Taylorville (Patrick Delfino,
Patrick D. Daly, and Valerie A. Ozment, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE WELCH delivered the judgment of the court, with opinion.
Justices Cates and Moore concurred in the judgment and opinion.
OPINION
¶1 The defendant, Pamela Muffick, appeals her conviction for the offense of aggravated
participation in methamphetamine manufacturing. On appeal, she argues that the State failed
to prove beyond a reasonable doubt that on March 15, 2014, her residence was within 1000
feet of an operating place of worship. For the reasons that follow, we 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.
¶2 I. BACKGROUND
¶3 On March 15, 2014, the defendant was charged by information with one count of
aggravated participation in methamphetamine manufacturing in violation of the
Methamphetamine Control and Community Protection Act (Act) (720 ILCS 646/15(b)(1)(H)
(West 2014)), where she knowingly participated in the manufacturing of a substance
containing methamphetamine and where the manufacturing occurred within 1000 feet of a
church.
¶4 On June 22, 2016, a jury trial commenced in the circuit court of Christian County. At trial,
the State produced the following evidence regarding the location of the offense in relation to
the Evangelical Free Church (EFC) and St. Mary’s Catholic Church (St. Mary’s) and the nature
of the operations at those locations at that time. First, Detective Evert Nation testified that the
defendant’s residence at 508 South Webster, where the offense occurred, was approximately
450 feet away from EFC. He further testified that there are, in fact, a total of four churches
within 1000 feet of the residence, including St. Mary’s and Nazarene church. Originally, he
utilized Google Earth in measuring these distances.
¶5 In addition to the testimony of Detective Nation, Officer Jeffrey Brown testified to the
following:
“Q. Okay. Did you ever do any measurements of the Defendant’s house at 508
South Webster to see how far it was from any churches?
A. Yes, I did.
Q. And what, if anything, were you able to find out?
A. There are two churches in close proximity to the residence at 508 South Webster.
Both of them are located at the intersection of Adams and Washington, one’s on the
northwest corner, one’s on the southeast corner. Evangelical Free Church is on the
northwest and the St. Mary’s Catholic Church on the southeast. I used a measuring
wheel to measure from the fence at the back of the property and then as best I could
because I can’t measure through objects, I measured the front doors of both churches.
Q. And what were those measurements?
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A. The front—the back of the fence to the front door to the Evangelical Free Church
was approximately 492 feet and from the back fence to the front door of the St. Mary’s
Catholic Church was 557 feet.
Q. And then you stated you used a measuring wheel?
A. Yes.
Q. Had you used one of those before?
A. Yes.
***
Q. Did you use, I guess, anything to check to make sure that was consistent with
any of the measuring type of measuring as far as software or anything like that?
A. Yes. Before I actually measured it with a measuring wheel, I used the Google
Earth program which allowed me to set a point which I used the back door of the
residence at 508 South Webster and I took a straight line to the front of each churches
[sic], both churches at those locations and measured using Google Earth.
Q. And those measurements, again, well within a thousand feet?
A. They were both under 500 feet.”
The record indicates that no other evidence regarding the operations of either purported church
was offered. The jury found the defendant guilty of aggravated participation in
methamphetamine manufacturing, and the trial court entered judgment on that finding. The
defendant appeals.
¶6 II. ANALYSIS
¶7 The defendant argues that the State failed to prove beyond a reasonable doubt that her
residence was within 1000 feet of an operational place of worship or parsonage. Therefore, she
contends that her conviction for aggravated participation in methamphetamine manufacturing
should be reduced to simple participation in methamphetamine manufacturing and that we
should remand for resentencing. In response, the State argues that there was adequate evidence
adduced at trial from which the jury could infer that either the EFC and/or St. Mary’s were
operating primarily as places of worship on the date of the offense.
¶8 When an appeal raises a question as to the sufficiency of the evidence, a reviewing court
must determine 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.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319
(1979). “[I]t is not the function of a reviewing court to retry the defendant.” People v. Boykin,
2013 IL App (1st) 112696, ¶ 6. We will 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.” People v. Fickes, 2017 IL App (5th) 140300, ¶ 17. Therefore, we will only reverse
a conviction if the evidence presented at trial was so unsatisfactory that a reasonable doubt of
defendant’s guilt is justified. Id.
¶9 At issue in this case is section 15(b)(1)(H) of the Act, which requires that “the
methamphetamine manufacturing occurs within 1,000 feet of a place of worship or parsonage.”
720 ILCS 646/15(b)(1)(H) (West 2014). In arguing that the State failed to meet its burden, the
defendant relies on Fickes, where this court found that the evidence was insufficient to find
defendant guilty of aggravated participation in methamphetamine manufacturing where the
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State failed to adduce sufficient evidence to render reasonable the inference that St. James
Lutheran Church was functioning primarily as a place of worship at the time of the offense.
Fickes, 2017 IL App (5th) 140300, ¶ 27. In that case, the evidence presented was in response
to a question from counsel asking for an exact description of where the offense occurred. Id.
¶ 6. A Vandalia police officer testified that “ ‘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.’ ” Id. He further testified that he was aware of the distance because he had personally
measured with a measuring wheel the distance from the front door of the residence to the back
door of the church. Id. On cross-examination, he further testified that the residence was
“ ‘pretty much right behind the St. James Lutheran Church.’ ” Id. He also stated that the church
was on the same block as, and right behind, the courthouse. Id. He used the term “church” at
least two additional times in his testimony. Id. The State also called a deputy who testified that
the location he was dispatched to “ ‘was behind the church directly across from this building
on Seventh Street.’ ” Id. ¶ 7. On review, this court found that this evidence was insufficient to
prove the purported church was being operated primarily as a place of worship at the time of
the offense. Id. ¶ 27.
¶ 10 In People v. Cadena, 2013 IL App (2d) 120285, the Second District similarly ruled that the
evidence adduced at trial was insufficient to establish that the charged offense occurred within
1000 feet of a church in violation of section 407(b)(1) of the Illinois Controlled Substances
Act (720 ILCS 570/407(b)(1) (West 2008)). Cadena, 2013 IL App (2d) 120285, ¶ 1. It found
that “the only testimony indicating that the Evangelical Covenant Church was actually being
used as such on the dates of the offenses was [an officer’s] affirmative response to the leading
question, ‘[I]s that a church that is an active church?’ ” Id. ¶ 16. It further noted that the
question also lacked temporal context. Id.
¶ 11 Alternatively, in People v. Rodriguez, 2014 IL App (2d) 130148, ¶ 65, the Second District
found that evidence that the shooting offense charged against defendant occurred within 1000
feet of a school in violation of section 24-1.2(b) of the Criminal Code of 1961 (720 ILCS 5/24-
1.2(b) (West 2010)) was sufficient where an officer testified that he had been serving as a
general patrol officer for several years prior to the offense, identified the school on an exhibit,
and testified that it was currently a school where he would see school children.
¶ 12 Similarly, in People v. Hardman, 2017 IL 121453, our supreme court found that the
evidence presented by the State that defendant possessed a controlled substance with intent to
deliver within 1000 feet of a school in violation of section 407(b)(1) of the Controlled
Substances Act (720 ILCS 570/407(b)(1) (West 2012)) was sufficient where two officers
testified as to their familiarity with the area and referred to the purported location as a school.
Hardman, 2017 IL 121453, ¶ 45. The court found that the evidence therefore made reasonable
the inference that the building was operating as a school at the time of the offense. Id. In
particular, the court noted that both officers had worked in the area for multiple years and both
knew enough about the area to know that the name of the school had changed. Id. ¶ 44.
¶ 13 In People v. Newton, 2018 IL 122958, our supreme court ruled in a similar manner that
there was sufficient evidence to prove that the charged offense occurred within 1000 feet of a
church in violation of section 407(b)(2) of the Controlled Substances Act (720 ILCS
570/407(b)(2) (West 2014)) where a detective with personal knowledge and familiarity
testified that the First Christian Church was operating as a church at all relevant times. Newton,
2018 IL 122958, ¶ 25. There was also evidence that there was signage with the name of the
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church, a cross and goblet on the building, a lit lantern, mowed grass, and people coming and
going from the parking lot. Id.
¶ 14 The case before us now is extremely factually similar to Fickes. The testimony detailed
above was the only evidence presented by the State that EFC or St. Mary’s was being operated
primarily as a place of worship at the time of the offense. As this court previously found in
Fickes, two officers’ testimony merely referencing a “church,” without more, is not sufficient
to establish that the purported church was operating as a place of worship at the time of the
offense.
¶ 15 Additionally, though Cadena is not binding authority, we find it persuasive as it
demonstrates that reference to an “active church,” without more, is insufficient to establish the
enhancement. We disagree with the State that Newton is determinative here as the statute at
issue in that case specifically lists “church” in its plain language, whereas the Act before us
now does not. Therefore, we decline to apply that case’s reasoning here, and we find that the
evidence presented against the defendant does not rise to the level of proof that was offered in
both Hardman and Rodriguez.
¶ 16 Therefore, we find that the State failed to adduce sufficient evidence at trial to render
reasonable the inference that either EFC or St. Mary’s was operating as a place of worship on
the date of the offense.
¶ 17 Finally, we note the error committed by the trial court in instructing the jury as to the
elements of the offense as provided by statute. As cited in the information, the defendant was
charged with violating section 15(b)(1)(H) of the Act, which allows an enhancement from
simple participation of manufacturing methamphetamine to aggravated participation when the
offense occurs “within 1,000 feet of a place of worship or parsonage.” 720 ILCS
646/15(b)(1)(H) (West 2014). Precedent clearly establishes that the language utilized by the
legislature in the statute at issue here (place of worship or parsonage) creates a higher burden
than when the term “church” is expressly included in the statute’s plain language. See Newton,
2018 IL 122958, ¶ 17. Therefore, the court misstated the law when it instructed the jury that
“[a] person commits the offense of Aggravated Participation in Methamphetamine
Manufacturing when *** the methamphetamine manufacturing occurs within 1,000 feet of a
church.” The court lowered the State’s burden in its instruction to the jury. Though this error
was not raised by the parties, and has no bearing on this appeal, we mention it to caution trial
courts in the future to use the proper definition of the offense as provided by the legislature.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, we reduce the defendant’s aggravated participation in
methamphetamine manufacturing to simple participation in methamphetamine manufacturing
and remand for a new sentencing hearing on that conviction.
¶ 20 Conviction reduced; cause remanded.
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