People v. Muffick ( 2019 )

NOTICE
2019 IL App (5th) 160388-U NOTICE
Decision filed 11/13/19. The This order was filed under
text of this decision may be NO. 5-16-0388 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Christian County.
)
v. ) No. 14-CF-42
)
PAMELA L. MUFFICK, ) Honorable
) Bradley T. Paisley,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Justices Cates and Moore concurred in the judgment.
ORDER
¶1 Held: The evidence was insufficient to prove that the defendant committed the
crime of aggravated participation in methamphetamine manufacturing where
the State failed to present evidence that either the Free Evangelical Church
and/or St. Mary’s Catholic Church were being operated primarily as places
of worship or parsonage on the date of the charged offense as required by
section 15(b)(1)(H) of the Methamphetamine Control and Community
Protection Act (720 ILCS 646/15(b)(1)(H) (West 2014)). Accordingly, the
defendant’s charge is hereby reduced to simple participation in
methamphetamine manufacturing and the case is remanded for resentencing.
¶2 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
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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.
¶3 I. BACKGROUND
¶4 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.
¶5 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.
¶6 In addition to the testimony of Detective Nation, Officer Jeffrey Brown testified to
the following:
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“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?
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.
¶7 II. ANALYSIS
¶8 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.
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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.
¶9 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.¶ 10 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 State failed to adduce sufficient evidence to render reasonable
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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.
¶ 11 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
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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.
¶ 12 Alternatively, in People v. Rodriguez, 2014 IL App (2d) 130148, 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 (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.
Rodriguez, 2014 IL App (2d) 130148, ¶ 65.
¶ 13 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.
¶ 14 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 401(d)(i) of the Controlled Substances Act (720
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ILCS 570/401(d)(i) (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 church, a cross and goblet on the building, a lit lantern, mowed grass,
and people coming and going from the parking lot. Id.¶ 15 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.
¶ 16 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.
¶ 17 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.
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¶ 18 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.
¶ 19 III. CONCLUSION
¶ 20 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.
¶ 21 Conviction reduced; cause remanded.
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