People v. Davis, 2016 IL App (1st) 142414 (June). Episode 200 (Duration 3:45)

Due to a bad stipulation, the State failed to prove beyond a reasonable doubt that the defendant was guilty of delivery of a controlled substance within 1000 feet of a school.

Facts

The defendant was charged by indictment with one count of delivery of a controlled substance, less than one gram of heroin, within 1000 feet of a school under section 407(b)(2).

Holding

The reviewing court agreed that although the evidence established that the delivery of less than one gram of heroin took place in the alley behind the gas station the officer did not identify the exact location in the alley where the transaction took place, and the State failed to introduce evidence of the distance from the location of the transaction in the alley to Orr Academy High School.

The State, thus, failed to prove him guilty beyond a reasonable doubt of delivery of a controlled substance within 1000 feet of a school.

How To Measure Distance

Illinois courts have not directly addressed the issue of how distance should be measured in order to establish that an offense under the Act occurred within 1000 feet of a school.

Several cases involving drug transactions alleged to have taken place within 1000 feet of a church appear to accept the proposition that the measurement is to be made from the actual location of the drug transaction to the real property comprising the church (720 ILCS 570/407(b)(2).

Although this court has not directly spoken on the measurement necessary to establish that an offense under the Act occurred within 1000 feet of a school, they now have done so.

In order to convict a defendant of delivery of a controlled substance within 1000 feet of a school, the State must prove beyond a reasonable doubt that the distance from the actual site of the transaction to “the real property comprising any school” is 1000 feet or less. 720 ILCS 570/407(b)(2).

Holding

In this case, the record is devoid of evidence establishing that the distance between the real property comprising Orr Academy High School and the actual location in the alley where the delivery of the controlled substance took place is 1000 feet or less.

First, there is no evidence describing where in the alley behind the gas station the transaction occurred.

Second, there is no evidence establishing where Investigator began his measurement, the stipulation only states the address which could be anywhere on the gas station’s property taking the stipulated testimony as true, the parties only agreed that somewhere on the property of the gas station was within 1000 feet of the Orr Academy High School gymnasium at the nearest property line gate.

The natural probative effect of the stipulation thus falls short of proving that the distance from the actual site of the transaction in the alley behind the gas station to the real property comprising Orr Academy High School is 1000 feet or less.

That conviction alone was reversed.