People v. Sparks

Case Date: 11/27/2002
Court: 2nd District Appellate
Docket No: 2-01-0247 Rel

No. 2--01--0247


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
                 Plaintiff-Appellee, )
)
v. ) No. 00--CF--388
)
KEVIN SPARKS,  ) Honorable
) Barry R. Anderson,
                Defendant-Appellant. ) Judge, Presiding.

PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Following a jury trial, defendant, Kevin Sparks, was convictedof unlawful delivery of a controlled substance within 1,000 feet ofa church (720 ILCS 570/407(b)(2) (West 2000)) and sentenced to sixyears' imprisonment. On appeal, defendant argues that (1) theState failed to lay an adequate foundation to support itsmeasurements of the distance from the site of the drug transactionto the alleged church; and (2) he was not proved guilty beyond areasonable doubt. We affirm.

On November 9, 2000, defendant was charged by information withone count of unlawful delivery of a controlled substance within1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2000)). Thecharge alleged that on July 20, 2000, defendant delivered less than one gram of a substance containing cocaine to another person whiledefendant was within 1,000 feet of a Salvation Army chapel inFreeport.

At trial, defendant admitted that, on the date in question, hedelivered less than one gram of cocaine to Gregory Dahm, who wasworking undercover for the Freeport police department. Thedelivery occurred at the intersection of State and StephensonStreets in Freeport. In light of defendant's admission, theremaining evidence at trial focused on whether the Salvation Armychapel was a church and whether it was located within 1,000 feet ofthe site of the drug transaction.

David Bump testified that he was an ordained minister for theSalvation Army. Bump testified that he worked at the SalvationArmy's building located at the intersection of Galena and ExchangeStreets in Freeport. Bump testified that a chapel was located inthe building where he conducted weekly religious services. Thetype of religious services Bump conducted in the chapel weresimilar to those held in Methodist churches. The Salvation Army'sreligious services featured sermons, Bible readings, singing, andSunday school. Bump testified that the chapel was used exclusivelyfor religious services. Bump also indicated that other parts ofthe Salvation Army's building were used for religious purposes,including Sunday school and Bible study. The Salvation Army'sbuilding also contained a board room, a soup kitchen, and a diningroom. On cross-examination, Bump acknowledged that no religiousservices were being conducted at the time of defendant's drugtransaction on July 20, 2000.

Freeport police officer Mark Otto testified that he had beencertified to operate a measurement tool known as a "Light Detectionand Ranging Device" (LIDAR). Officer Otto explained that a LIDARcontains a lens that emits an impulse of light that strikes theobject being measured. The LIDAR calculates the distance to theobject being measured based upon the amount of time that it takesthe light to travel to the object and back again. Officer Ottotestified that a LIDAR's accuracy should be periodically tested byusing the device to measure a known distance.

Freeport police officer Andrew Schroeder testified that he wastrained to use a LIDAR by Officer Otto. Officer Schroedertestified that he assisted Officer Thomas Dyra in measuring (1) thedistance between the entrance to the Salvation Army chapel onExchange Street and the intersection of Exchange and State Streets,and (2) the distance between the intersection of Exchange and StateStreets and the intersection of State and Stephenson Streets wherethe drug transaction occurred. Officer Schroeder tested the LIDARbefore using it and determined that it was working properly. Inorder to take the measurements, Officer Dyra acted as a fixed pointof reference and stood at the far point of the distance to bemeasured, and Officer Schroeder aimed the LIDAR's light beam atDyra. The officers measured the distance between the chapel onExchange Street and the State-Exchange intersection at 836 feet andthe distance between the State-Exchange intersection and the State-Stephenson intersection at 239 feet. Officer Schroeder testifiedthat the angle formed by State and Exchange Streets was 90 degrees. On cross-examination, Officer Schroeder acknowledged that the anglemay not have been precisely 90 degrees.

On redirect, Officer Schroeder was shown an aerial photographof the area in question. Officer Schroeder testified that theangle between State and Exchange Streets looked like a right angle,as it was similar to the "corner of the chalkboard in thecourtroom" and "the corners of the doors."

Officer Dyra testified that he took measurements with a"rotary wheel" along Exchange Street from the chapel to theintersection of Exchange and State Streets, and then from thatintersection to the intersection of State and Stephenson Streets. A "rotary wheel" is a device used to measure distances thatconsists of a wheel attached to a handle. The handle contains ameter that measures the distance a person travels while rolling thewheel along the ground. The distances recorded by Officer Dyrausing the rotary wheel were 844 and 236 feet respectively. OfficerDyra also testified that the corner of State and Exchange Streetsformed a right angle. Officer Dyra determined that theintersection formed a right angle by placing a carpenter's squareon an aerial photograph of the intersection. Officer Dyra thenused the geometrical equation known as the Pythagorean theorem tocalculate the direct distance between the chapel and the site ofthe drug transaction. Using the measurements recorded by theLIDAR, he calculated a direct distance of 869.5 feet; using themeasurements recorded by the rotary wheel, he calculated a directdistance of 876.3 feet.

On cross-examination, Officer Dyra acknowledged that the wheelon the rotary wheel could have been worn. If the wheel was worn,he acknowledged, the distance measured by the circumference of thewheel could have been inaccurate.

Stephenson County chief assessor Ronald Kane testified that hemaintained aerial photographs ("aerial maps") of the entire county, and that property boundaries were drawn upon the photographs forassessment purposes. Kane testified that these aerial maps weremaintained as public records. He identified the book thatcontained all of the aerial maps of the county as well as theaerial maps of the area in question. The scale of the map was 1inch for every 100 feet.

Laurie Heiden testified that she had worked in the assessor'soffice for more than five years. Heiden testified that she photocopied the relevant aerial maps and used a scaled ruler tomeasure the distance between the corner of the Salvation Army's lotand the northwest corner of State and Stephenson Streets. Shemeasured the distance along a straight line between the two pointsand found that the distance was 795 feet. Heiden also measured thedistance between the intersections of Exchange and Galena Streetsand State and Stephenson Streets as 940 feet. Heiden testifiedthat the chapel was not quite at the intersection of Exchange andGalena Streets and that the distance between the chapel and thedrug transaction was more than 795 feet but less than 940 feet.

Following deliberations, the jury found defendant guilty ofunlawful delivery of less than one gram of a substance containingcocaine within 1,000 feet of a church. After a sentencing hearing,the trial court sentenced defendant to six years' imprisonment. This timely appeal followed.

Defendant's first contention on appeal is that the Statefailed to lay an adequate foundation to support its measurementevidence as required by Rule 703 of the Federal Rules of Evidence(Fed. R. Evid. 703). See Wilson v. Clark, 84 Ill. 2d 186, 196(1981) (adopting Rule 703). Rule 703 requires that an expert'stestimony must be supported with an evidentiary foundationindicating that the facts and data relied upon by the expert are ofthe type reasonably relied upon by other experts in the field. Fed. R. Evid. 703. Specifically, defendant argues that the Statefailed to introduce any evidence indicating that LIDARs, rotarywheels, and aerial maps are accurate measuring devices. Defendantalso argues that the State failed to introduce evidence that theFreeport police officers were adequately trained in the use ofLIDARs and rotary wheels. Finally, defendant argues that OfficerDyra's calculations based on the Pythogorean theorem wereunreliable and that the State failed to establish that the angleformed by the intersection of Exchange and State Streets was 90degrees.

Defendant has waived this issue for our review because hefailed to object to the foundation of this evidence below. Thiscourt has previously held that a defendant's objection to thefoundation for the admission of evidence is waived on appeal whenno objection on foundational grounds was made to the evidence inthe trial court. People v. Bostelman, 325 Ill. App. 3d 22, 30(2001). A timely objection in the trial court as to the foundationof technical evidence is necessary to give the State theopportunity to correct any deficiency in the proof. People v.Bynum, 257 Ill. App. 3d 502, 514-15 (1994) (holding that defendantwaived any Rule 703 objection to an expert's use of a gaschromatography mass spectrometer to determine the presence of PCPin a substance by failing to object at trial). Moreover, theState's failure to lay the proper technical foundation under Rule703 is not reviewable under the plain error doctrine. Bynum, 257Ill. App. 3d at 515.

Defendant alternatively contends that his trial counsel'sfailure to object to the State's foundation constituted theineffective assistance of counsel. To prevail on a claim of theineffective assistance of counsel, a defendant must show (1) thatdefense counsel's performance fell below an objective standard ofreasonableness, and (2) a reasonable probability exists that, butfor defense counsel's errors, a different result would have beenachieved. Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed.2d 674, 698, 104 S. Ct. 2052, 2069 (1984).

We do not believe that defense counsel was deficient forfailing to object to the foundation of the State's measurementevidence. Decisions such as what matters to object to and when toobject are, by and large, matters of trial strategy. People v.Pecoraro, 175 Ill. 2d 294, 327 (1997). The evidence indicated that Officer Schroeder had received training on the proper operation anduse of the LIDAR device and that he tested the device immediatelybefore taking the measurements. Moreover, the aerial map providedby the assessor's office was a public record, and Kane testified indetail how the map was constructed and how he checked the accuracyof the map's scale by measuring with a scaled ruler the distanceswritten on the map. The aerial map, as a public record, ispresumed reliable. See Steward v. Crissell, 289 Ill. App. 3d 66,72-73 (1997) (the party challenging a public record bears theburden of presenting evidence that the record is unreliable).

Additionally, Officer Dyra testified that he was familiar withthe operation of the rotary wheel and explained that the rotarywheel is a measurement device commonly used in police work. Although defendant asserts the possibility that the tread on therotary wheel might have been worn, we note that the measurementstaken by the rotary wheel substantially conformed to those obtainedfrom the LIDAR device and the aerial map. Finally, as for theangle formed by the intersection of Exchange and State Streets,Officer Dyra confirmed that the angle was 90 degrees by measuringthe angle using a carpenter's square on the aerial map. Based onthe foregoing testimony, we conclude that the State provided asufficient foundation for its measurement evidence and thatdefendant was not deprived of the effective assistance of counsel.

Defendant's second contention on appeal is that the Statefailed to prove him guilty beyond a reasonable doubt. Inconsidering defendant's contention, we note that it is not thefunction of this court to retry the defendant. People v. Collins,106 Ill. 2d 237, 261 (1985). The relevant question is " 'whether,after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261, quotingJackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99S. Ct. 2781, 2789 (1979). We, as a reviewing court, are not tosubstitute our own judgment for that of the jury. People v.Cooper, 194 Ill. 2d 419, 431 (2000).

Section 401(d) of the Illinois Controlled Substances Act (theAct) (720 ILCS 570/401(d) (West 2000)) provides that it is unlawfulfor any person to knowingly deliver less that one gram of certaincontrolled substances. A violation of section 401(d) is classifiedas a Class 2 felony. Section 407(b)(2) of the Act enhances theclassification of a section 401(d) offense to a Class 1 felony ifthe violation occurs "within 1,000 feet of the real propertycomprising any church, synagogue, or other building, structure, orplace used primarily for religious worship." 720 ILCS570/407(b)(2) (West 2000). In this case, defendant does notdispute that he delivered less than one gram of cocaine inviolation of section 401(d) of the Act. Rather, defendant arguesthat the State failed to prove that he violated section 407(b)(2)of the Act by delivering the cocaine within 1,000 feet of a church. Specifically, defendant argues that the State failed to prove thatthe Salvation Army chapel was a "church" for purposes of the Act. Defendant additionally argues that, even assuming the SalvationArmy chapel was a church, the State failed to prove that thedelivery took place within 1,000 feet of the chapel.

The term "church" is not defined by the provisions of the Act. However, the meaning of this term may be gleaned from the otherlanguage of section 407(b)(2). As noted above, section 407(b)(2)enhances a delivery offense when the delivery occurs within 1,000feet of a "church, synagogue, or other building, structure, orplace used primarily for religious worship." (Emphasis added.) 720 ILCS 570/407(b)(2) (West 2000). Based on this statutorylanguage, we believe that the legislature intended the term"church" to mean a "place used primarily for religious worship." See People v. Woodard, 175 Ill. 2d 435, 443 (1997) (stating thatthe best guide to interpreting a statute's meaning is the statute'sown plain language). Additionally, we note that Black's LawDictionary similarly defines the term "church" as a "place wherepersons regularly assemble for worship." Black's Law Dictionary242 (6th ed. 1990).

We therefore believe that the appropriate focus in determiningwhether a place falls within the definition of a "church" forpurposes of the statute is its "primary" use. If the State provesthat the primary use of the place in question is for religiouspurposes, then the enhancement provision applies. Although certaintraditional physical characteristics such as a steeple and stainedglass may help a fact finder identify a place as a church, thepresence of such characteristics is not required under the statute. Similarly, there is no statutory requirement that the officialtitle of the place in question have the word "church" in its name. We do not believe that the legislature intended to limit themeaning of the term "church" to a "building, structure, or place"possessing certain specific physical characteristics andnomenclature. Rather, the appropriate focus must be on the mannerin which the place is used, i.e., whether its primary use is forreligious worship.

After reviewing the evidence appearing in the record, weconclude that the State proved beyond a reasonable doubt that theSalvation Army chapel was a "place used primarily for religiousworship." 720 ILCS 570/407(b)(2) (West 2000). As detailed above,Bump testified that he was an ordained minister and that heconducted weekly religious services in the chapel. These serviceswere similar to those conducted in Methodist churches and featuredsermons, Bible readings, and singing. Bump testified that thechapel was used exclusively for the religious services. Despitethe designation of "chapel" and the lack of a steeple and stainedglass windows, the undisputed evidence established that the solepurpose of the chapel was to conduct religious services. Becausethe sole purpose of the chapel was to conduct regular worshipservices, we believe that a reasonable jury could have concludedthat the chapel was a "church."

Defendant argues that the chapel was not a church because itwas only one part of the Salvation Army building. Defendant notesthat numerous nonreligious activities occurred in the other partsof the building, including a food pantry, soup kitchen, and othersocial services. Defendant also notes that religious services wereheld in the chapel only weekly. We find these argumentsunavailing. Although the Salvation Army chapel was only part ofthe Salvation Army's building, the chapel was nonetheless a placeprimarily used for public religious worship. The evidence at trialdemonstrated that people came to the chapel on a weekly basis forthe sole purpose of attending religious services. We note thatchurches often consist of numerous rooms and buildings and thatreligious organizations often conduct other social serviceactivities in addition to worship. All of these activities wererelated to the Salvation Army's religious mission and did notrelate to some commercial or other purpose. As the dissent notes,the Salvation Army is a "religious movement." See Salvation Armyv. Department of Revenue, 170 Ill. App. 3d 336, 338 (1988). Moreover, this court has previously held that, for purposes ofsection 407(b)(2), religious services need not be in session at thetime the unlawful delivery occurred. See People v. Daniels, 307Ill. App. 3d 917, 929 (1999). Accordingly, despite the fact thatservices in the chapel are conducted only weekly, we hold theSalvation Army chapel is nonetheless a "church" for purposes of theAct.

We next consider whether the State proved that the deliverytook place within 1,000 feet of the chapel. Defendant argues thatthe distance to travel on foot between the chapel and the locationof the drug transaction was in excess of 1,000 feet. Defendantargues that it was improper for the State to measure the distancebetween the two locations using a straight line because variousbuildings create an obstruction. Defendant points out that thesebuildings would prevent someone from walking in a straight linefrom the chapel to the location of the drug transaction.

Although this issue appears to be a matter of first impressionin Illinois, we believe that our resolution of the question iscontrolled by the language of the statute. Section 407(b)(2)prohibits delivery of certain controlled substances "within 1,000feet of the real property comprising any church." We find thisstatutory language to be clear and unambiguous. The languageplainly prohibits delivery within 1,000 feet of a church. Wherethe language of a statute is clear and unambiguous, we are obligedto give it effect as written without reading into it exceptions,limitations, or conditions that the legislature did not express. Daniels, 307 Ill. App. 3d at 928. Section 407(b)(2) contains nolanguage requiring that the distance between the site of thedelivery and the church be measured according to the shortest routetraveled on foot. Accordingly, we hold that the 1,000-footdistance should be measured as a straight line from the church andnot according to pedestrian routes.

Reviewing the evidence introduced at trial, we conclude thata reasonable jury could have concluded that the drug transactiontook place within 1,000 feet of the Salvation Army chapel. Thecounty assessor's aerial map showed that the distance between thechapel and the site of the delivery was less than 1,000 feet. Thismeasurement was confirmed by two independent measurements taken bythe Freeport police department. We therefore conclude that theState's evidence was sufficient to prove defendant guilty beyond areasonable doubt.

For the foregoing reasons, we affirm the judgment of thecircuit court of Stephenson County.

Affirmed.

GEIGER, J., concurs.

JUSTICE BOWMAN, dissenting:

I respectfully dissent.

I disagree with the majority's finding that the Salvation Armychapel is a "church" for purposes of section 407(b)(2) of theIllinois Controlled Substances Act (Act) (720 ILCS 570/407(b)(2)(West 2000)). According to the Act, any person who violatessubsection (d) of section 401:

"within 1,000 feet of the real property comprising any church,synagogue, or other building, structure, or place usedprimarily for religious worship *** is guilty of a Class 1felony, the fine for which shall not exceed $250,000." 720ILCS 570/407(b)(2) (West 2000).

I agree with the majority that the legislature intended the term"church" to mean a "place used primarily for religious worship." However, I do not agree with the majority's conclusion that thejury could have found that the "chapel" was a "church" because thesole purpose of the chapel was to conduct regular worship services. The effect of the majority's reasoning is to permit the term"church" to encompass other "places used primarily for religiousworship." Essentially, this interpretation broadens the scope ofthe word "church" to include "chapel" and arguably any other "placeused primarily for religious worship."

Moreover, Black's Law Dictionary defines "chapel" as "[a]place of worship; a lesser or inferior church, sometimes a part ofor subordinate to another church." Black's Law Dictionary 232 (6thed. 1990). As evidenced by its definition, the word "chapel" isdistinct from the word "church" in that it is placed in a lessercategory than a "church." While the majority's lack ofdifferentiation between the words "church" and "chapel" is oflittle consequence when the facts involve a church or synagoguehousing a smaller chapel, the distinction becomes important here. In this case, it is clear from the evidence that the Salvation Armybuilding possesses no attributes of a "place used primarily forreligious worship." Of critical importance are the photographs ofthe building, entered into evidence, which indicate absolutely nohint of the religious activity held therein. For example, nowherein the pictures do there appear any special features characteristicof a church, such as a steeple, stained glass window, or largewooden entry door. Even the large sign located above the separateentrance to the chapel, which reads "The Salvation Army CorpsCommunity Center," is not indicative of a church. Although I agreewith the majority that there is no statutory requirement that a"church" possess specific physical characteristics, it is importantto recognize that the building in question possesses not onefeature indicative of a church.

In sum, I believe the majority's conclusion that a "chapel" isa "church" dangerously enhances the delivery offense beyond thescope intended by the legislature. Presumably, any delivery within1,000 feet of a chapel, despite its location or indicia ofreligious worship, would be in violation of the Act. For example,a chapel located on the thirtieth floor of the Empire StateBuilding, or in a large shopping mall, would conceivably fall underthe statute. In short, I fear that such a broad definition of"church" would not encompass the intent of the legislature andwould result in applying this enhanced criminal offense in too manyinstances where a nonenhanced delivery charge would suffice. In addition, the majority in this case need not stretch thedefinition of "chapel" to be a "church" for purposes of the Act. The statutory language in section 407(b)(2) clearly addresses thissituation by stating that a delivery offense is enhanced when thedelivery occurs within 1,000 feet of a "church, synagogue, or otherbuilding, structure, or place used primarily for religiousworship." (Emphasis added.) 720 ILCS 570/407(b)(2) (West 2000). Rather than find a "chapel" to be a "church," a more reasonableanalysis of the statutory language would consider whether theSalvation Army was a "building" used "primarily for religiousworship" within the meaning of the Act. 720 ILCS 570/407(b)(2)(West 2000).

In classifying the Salvation Army as a "building" under thestatute, I do not believe the State proved beyond a reasonabledoubt that the Salvation Army building was used "primarily forreligious worship" (720 ILCS 570/407(b)(2) (West 2000)). On achallenge to the factual sufficiency of the evidence to support aconviction, the relevant inquiry is whether any reasonable factfinder could have found the essential elements of the crime beyonda reasonable doubt when viewing the evidence in the light mostfavorable to the prosecution. People v. Collins, 106 Ill. 2d 237,261 (1985). Even if the sole purpose of the chapel was to conductreligious services, which were held only twice a week, the chapelwas only one part of a much larger building not used primarily forreligious worship. As the Salvation Army minister testified, "[W]euse the whole building for different things. It just depends onwhat the day is as to what parts of the building is [sic] used." According to the minister, the Salvation Army structure wasconsidered one building used for a variety of activities. Therecord is clear that this particular Salvation Army buildingsupported youth services, a soup kitchen and a food pantry. As aresult, the primary use of the majority of the building wassomething other than religious worship. In addition, as statedearlier, the photographs of the building showed no features typicalof a place used primarily for religious worship. Thus, even whenviewing the evidence in the light most favorable to theprosecution, I do not believe a reasonable fact finder could havefound beyond a reasonable doubt that the Salvation Army buildingwas "used primarily for religious worship."

Finally, as defendant argues, this court may take judicialnotice of matters of common knowledge or facts that are easilyverifiable. Harris Trust & Savings Bank v. American National Bank& Trust of Chicago, 230 Ill. App. 3d 591, 597 (1992). Generallyspeaking, the Salvation Army is a religious movement which providesan array of social services to the poor. Salvation Army v.Department of Revenue, 170 Ill. App. 3d 336, 338 (1988). However, the fact that the Salvation Army has a religious purpose does notmean that the building in question is a "church" used "primarilyfor religious worship." The facts in this case, as mentionedearlier, show that this particular Salvation Army building serveda variety of purposes, both religious and charitable. As defendantnotes, virtually any person out and about during the Christmasseason has witnessed bell-ringers from the Salvation Armysoliciting donations for those in need. Because the Salvation Armyis known universally for its contributions to those in need,perhaps even more than its religious mission, I disagree with themajority's position that its facilities in this case were usedprimarily for religious worship. Consequently, I do not believethat the evidence presented, specifically noting the appearance ofthe building and the testimony of the minister as to the variety ofactivities held therein, supports a finding that the building inquestion was used primarily for religious worship.

In sum, I disagree with the majority in this case that thejury could have concluded that the "chapel" was a "church." Inaddition, I believe that a reasonable fact finder, viewing theevidence in a light most favorable to the State, could not havefound beyond a reasonable doubt that the Salvation Army building inquestion was "used primarily for religious worship" within themeaning of the Act. Accordingly, I would reverse defendant'sconviction and sentence for violation of section 407(b)(2) of theAct (720 ILCS 570/407(b)(2) (West 2000)), find defendant guilty ofdelivering less than one gram of cocaine pursuant to section 401(d)of the Act (720 ILCS 570/401(d) (West 2000)), a Class 2 felony, andremand the cause to the trial court for sentencing for thatoffense.