Find Legal Information

FOURTH DIVISION

September 20, 2001

JUSTICE THEIS delivered the opinion of the court:

Following a bench trial, defendant Percy Edmonds was convicted ofpossession of a controlled substance with intent to deliver on apublic way within 1,000 feet of a school. 720 ILCS 570/401(c)(2),407(b)(1) (West 1998). He was sentenced to six years' imprisonment. On appeal, defendant argues that (1) the indictment charging him wasfatally defective and, thus, his conviction should be reversed; and(2) the State failed to prove beyond a reasonable doubt that defendantcommitted the offense within 1,000 feet of a school. We affirm.

At trial, Officer Shawn Rellinger of the Chicago policedepartment testified that on May 11, 1999, at approximately 9:55 p.m.,he conducted a surveillance on the 3400 block of Adams Street, justwest of Homan Avenue in Chicago. He saw defendant standing at themouth of the alley, by the sidewalk, on the west side of Homan,between Monroe Street and Adams. Rellinger observed defendant engagein three separate transactions within five minutes where an unknownperson approached defendant, had a short conversation, and handeddefendant what appeared to be United States currency. Defendantlooked at the currency, placed it in his pocket and then proceeded toa steel pole located in a vacant lot on Adams. The pole wasapproximately 10 to 20 feet from where defendant was standing in thealley. Defendant lifted a rock next to the pole, ripped a certainamount from a strip of plastic, and gave that object to the person.

After the third transaction, Rellinger radioed his partner andtold him to detain defendant. Rellinger then proceeded to the pole,where he recovered six Ziploc bags, strip-taped together, containingsuspected crack cocaine. Defendant was then arrested and a searchrevealed $120 in his pants pocket. On cross-examination, Rellingerstated that he did not include in his report that he saw defendantplace the alleged currency in his pocket or that he saw defendant tearsomething from the strip of plastic. He also admitted that he couldnot actually see the currency but assumed that it was money.

Investigator Eugene Connelly testified that he measured thedistance between where defendant was arrested to Marshall High School. Connelly used a measuring instrument, the Roladex 400, which measuredthe distance in feet while he rolled it along the ground. Connelly accurately calibrated the instrument before he took measurements.

He began measuring from the alley behind 3401 West Monroe, anaddress he obtained from the police report. The alley ran east/westand was between Monroe and Adams and west of Homan. He measured downthe alley to Marshall High School, which was between Monroe and Adamsand Spaulding and Kedzie Avenues. Connelly testified that he measuredto a concrete slab in front of the school building on the east side ofSpaulding, which was approximately 20 feet from the sidewalk and 50feet from the school building. The distance from the alley behind3401 West Monroe to Marshall High School was 752 feet.

On cross-examination, Connelly admitted that in his investigativereport he misspelled Monroe as "Monore" and did not include adirection, such as east or west, before the Monroe address from whichhe started measuring. At the time he took the measurement, he knewthe address of Marshall High School to be 3250 West Adams, but he didnot know the legal limits of the school property or the legal limitsof 3401 West Monroe.

The parties stipulated that Marshall High School was a Chicagopublic school located at 3250 West Adams and was operating as such onMay 11, 1999. Further, it was stipulated that the contents of the sixbags recovered contained 1.3 grams of cocaine.

At the close of this evidence, defendant made a motion for adirected verdict, which was denied. When finding defendant guilty ascharged, the trial court noticed a discrepancy in the indictment. While the indictment described the charge as possession of acontrolled substance with intent to deliver on a public way within1,000 feet of a school, the citation to the "1,000 feet of a school"provision was missing. Instead, only the citations to possession of acontrolled substance with intent to deliver, "720-570/401(c)(2)," andthe automatic transfer provision transferring defendant to adultcourt, "720-405/5-4(7)(A)," were cited. The trial court allowed theState to change the automatic transfer citation to "705-405/5-130(2)(a)" because the previous statute had been foundunconstitutional under People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d265 (1999). Over defense objection, the trial court also allowed theState to add a citation to the indictment, "720-570/407(b)(1)," whichcontained the "1,000 feet of a school" provision and changed thepenalty from a Class 1 to a Class X felony. The trial court founddefendant guilty of possession of a controlled substance with intentto deliver on a public way within 1,000 feet of a school and sentencedhim to the minimum of six years' imprisonment. After defendant'smotions for a new trial and to reconsider his sentence were denied, hefiled this timely appeal.

Defendant first contends that the indictment was defectivebecause it failed to state the citation for the offense for which hewas ultimately convicted, "720-570/407(b)(1)," and the trial courterred in allowing the State to amend the indictment. The Stateresponds that the addition of the statute was merely a formal, not asubstantive, change and did not prejudice defendant and, thus, thetrial court properly allowed the amendment.

Defendant never filed a pretrial motion to dismiss or a posttrialmotion in arrest of judgment. After the trial court noticed theinconsistency in the indictment, defendant only objected to allowingthe State to amend the indictment. Defendant repeated this objectionin his motion for a new trial. However, defendant did not object tothe sufficiency of the indictment in the trial court and raises thisissue for the first time on appeal. Our standard of review, then, iswhether the indictment apprised defendant of the precise offensecharged with sufficient specificity to prepare his defense and allowpleading a resulting conviction as a bar to future prosecution arisingout of the same conduct. People v. Thingvold, 145 Ill. 2d 441, 448,584 N.E.2d 89, 91 (1991); People v. Gilmore, 63 Ill. 2d 23, 29, 344N.E.2d 456, 460 (1976). We consider whether the defective indictmentprejudiced defendant and whether the difference between theallegations in the indictment and the proof at trial was material andof such a character as to mislead defendant in preparing his defense. Thingvold, 145 Ill. 2d at 448, 584 N.E.2d at 91; People v. Weber, 264Ill. App. 3d 310, 314, 636 N.E.2d 902, 905 (1994). If a defendant wassufficiently advised of the charges against him, the conviction may besustained. Weber, 264 Ill. App. 3d at 314, 636 N.E.2d at 905. Inmaking this determination, the reviewing court looks to the indictmentand the record. People v. Maggette, 195 Ill. 2d 336, 348, 747 N.E.2d339, 346 (2001).

Here, the indictment charged:

"[O]n or about May 11, 1999[,] at and within theCounty of Cook[,] Percy Edmonds committed theoffense of possession of controlled substance withintent to deliver in that he, being at least 15years of age, unlawfully and knowingly possessedwith intent to deliver *** 1 gram or more but lessthan 15 grams of a substance containing a certaincontrolled substance, to wit: more than 5 gramscocaine, on a public way within 1000 feet of thereal property comprising any school, regardless ofthe time of day or time of year, in violation ofChapter 720 Act 570 Section 401(c)(2)/4055-4(7)(A)of the Illinois Compiled Statutes ***."

While the indictment failed to cite the additional provision necessaryfor his conviction, "720 ILCS 570/407(b)(1)," we find from reviewingthe indictment and the record that defendant was aware that he wascharged with possession of cocaine with intent to deliver within 1,000feet of a school.

The language of the indictment includes the phrase "within 1000feet of *** [a] school" and includes all elements of the charge ofpossession of a controlled substance with intent to deliver within1,000 feet of a school. Further, Connelly testified at lengthregarding his measurements and the exact distance from the place wheredefendant was arrested to Marshall High School. Defendant cross-examined and re-cross-examined this witness regarding themeasurements. In her motion for a directed finding, defense counselstated that "defendant is charged with it appears to be one count ofpossession of controlled substance with intent to deliver within athousand feet of a school." She later argued that "it has not beenestablished that the defendant possessed cocaine with intent todeliver within a thousand feet of Marshall High School." Defensecounsel argued extensively to the court that the State had not provedthe second part of the crime, that the offense occurred within 1,000feet of a school, beyond a reasonable doubt. The State alsoconsistently referred to the charge against defendant as including the"1,000 feet of a school" language. In denying defendant's motion fora directed verdict, the court repeatedly referred to the offense as"possession with intent [to deliver] within a thousand feet" withoutany objection.

Based on this evidence, we find that, while the indictment failedto include a citation to the statute regarding the proximity of theoffense to a school, it was sufficiently specific and adequatelyapprised defendant of the charge against him in order to prepare hisdefense. There was no difference between the allegations in theindictment and the proof at trial and defendant failed to demonstrateany prejudice. We find the indictment was not defective.

Defendant also argues that the trial court erred in allowing theState to amend the indictment after trial to add this statutorycitation. When reviewing the trial court's decision to allow or denyan amendment to the indictment, we apply an abuse of discretionstandard. People v. McCoy, 295 Ill. App. 3d 988, 993, 692 N.E.2d1244, 1247 (1998). Section 111-5 of the Code of Criminal Procedure of1963 allows an amendment to an indictment to correct formal defects,as long as the change is not material and does not alter the natureand elements of the offense charged. 725 ILCS 5/111-5 (West 1998);McCoy, 295 Ill. App. 3d at 993, 692 N.E.2d at 1248. When the languageof the indictment sufficiently informs defendant of the charges anddefendant is not prejudiced by an incorrect statutory citation, thedefect is formal. People v. Johnson, 293 Ill. App. 3d 915, 920, 689N.E.2d 179, 182 (1997). Formal defects can be corrected by eitherparty at any time, provided there is no resulting surprise orprejudice to the defendant. People v. Benitez, 169 Ill. 2d 245, 255,661 N.E.2d 344, 349 (1996).

Here, the trial court did not abuse its discretion in allowingthe State to amend the indictment. In doing so, the court found that"certainly the Defense had notice. That's what we've been tryinghere." In denying defendant's motion for a new trial, the court againaddressed this issue and stated that "it is clear that the defense wason notice that *** they [the State] were going to be proceeding underthe statute dealing with being within one thousand feet of *** aschool." The court found the amendments "were certainly only to makeclear and we view those to really be administrative typo kind ofamendments." Further, as discussed above, defendant was not surprisedor prejudiced and the record clearly shows that he was aware of thecharge of possession of a controlled substance with intent to deliverwithin 1,000 feet of a school. We find that the defect was formal,not material, and did not change the elements of the offense charged.

Defendant cites People v. Betts, 78 Ill. App. 3d 200, 397 N.E.2d106 (1979), in support of his argument that the defect wassubstantive. In Betts, the indictment was amended from the deliveryof a narcotic to the delivery of "not" a narcotic. Betts, 78 Ill.App. 3d at 201, 397 N.E.2d at 108. The original indictment includedboth the term "narcotic" and the statute referencing that offense. Betts, 78 Ill. App. 3d at 202, 397 N.E.2d at 108-09. The court foundthat the change in the type of substance defendant was accused ofdelivering changed the offense charged, the grand jury did not intendthe amended charge and, therefore, the change was substantive. Betts,78 Ill. App. 3d at 202-03, 397 N.E.2d at 109. Here, the originalindictment contained the "1,000 feet of a school" language and one oftwo necessary statutory citations. The addition of one cite did notchange the offense charged and, in fact, reflected the grand jury'sintent. It is clear from the language of the indictment and theproceedings at trial that defendant was charged with possession of acontrolled substance with intent to deliver on a public way within1,000 feet of a school. Therefore, the trial court did not abuse itsdiscretion in allowing the State to amend the indictment.

Defendant also argues that the "1,000 feet" provision was presentin the indictment only to trigger the automatic transfer statute anddid not place him on notice of this charge. The automatic transferstatute cited in defendant's indictment was "720-405/5-4(7)(a)," whichis now "705 ILCS 405/5-130(2)(a)." That section specified that, if aminor who was at least 15 years old was charged with an offense undersection 401 of the Illinois Controlled Substances Act while on apublic way within 1,000 feet of a school, the minor could not bedefined as delinquent and would therefore be prosecuted in adultcourt. 705 ILCS 405/5-130(2)(a) (West 1998). Thus, the inclusion ofthe automatic transfer citation informed defendant both that he wasbeing charged with a crime listed in that section and that, because hewas charged with such a crime, he would be tried under the CriminalCode of 1961 (720 ILCS 5/1-1 et seq. (West 1998)). Therefore, the"1,000 feet of a school" language and the citation to the automatictransfer statute did not mislead defendant as to the charge andadequately informed him that he was charged with possession of acontrolled substance with intent to deliver on a public way within1,000 feet of a school. Accordingly, we reject defendant's argument.

Defendant next contends that the State failed to prove beyond areasonable doubt that the offense occurred within 1,000 feet of aschool. He states that, because Connelly began measuring in the alleyand not at the steel pole where the drugs were found and because ofthe inconsistencies in his report, reasonable doubt exists. The Stateresponds that Connelly's testimony clearly established that theoffense occurred within 1,000 feet of a school.

When reviewing the sufficiency of the evidence in a criminalappeal, the relevant question is whether, after viewing the evidencein the light most favorable to the prosecution, any rational trier offact could have found the essential elements of the crime beyond areasonable doubt. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d365, 369 (1999). This court's role is not to retry the defendant and,thus, we afford the trier of fact great deference. People v. DePaolo,317 Ill. App. 3d 301, 306, 739 N.E.2d 1027, 1031 (2000).

In People v. Clark, a police officer testified that the distancebetween where defendant was arrested for selling drugs and a school"was equivalent to the distance from home plate to second base in abaseball field." People v. Clark, 231 Ill. App. 3d 571, 574, 596N.E.2d 642, 644 (1992). The court found this evidence alone wassufficient to prove beyond a reasonable doubt that the distance was"well within" 1,000 feet. Clark, 231 Ill. App. 3d at 577, 596 N.E.2dat 645-46.

Here, Connelly's uncontroverted testimony revealed that he beganmeasuring in the alley behind 3401 West Monroe, an address he obtainedfrom the police report. The distance between this point and MarshallHigh School was 752 feet. While he did not measure from the steelpole, the court found that defendant had constructive possession ofthe drugs when he stood at the mouth of the alley where Connelly beganmeasuring. Further, Rellinger testified that the distance betweenwhere defendant stood and the steel pole was only 10 to 20 feet. While Connelly did not know the exact legal boundaries of the highschool, he measured to the school property and within 50 feet of thebuilding. The trial court stated that "we've had enough descriptionhere in terms of where the measurement was made from *** the Court isable to reasonably conclude and do the math, that it is within athousand feet." The inconsistencies in his report were not materialand, therefore, after viewing the testimony in the light mostfavorable to the prosecution, we find that a rational trier of factcould have found the State established this element beyond areasonable doubt.

For the foregoing reasons, we affirm defendant's conviction forpossession of a controlled substance with intent to deliver on apublic way within 1,000 feet of a school.

Affirmed.

GREIMAN, J., concurs; REID, J., dissents.

Justice Reid, dissenting:

I dissent. While the majority is correct in its recitation of thelaw that, in general, the mere failure to include a statutory citationin an otherwise proper indictment does not automatically render theindictment void, the factual posture of this case is sufficientlyunique so as to take it out of the realm of the general. When Edmondswas informed of the crime for which he was being charged, he was doneso in an indictment which specifically charged him with a violation ofa class one felony. He was convicted, after the trial court granted amotion to amend the indictment, of a class X felony. By definition,the punishment for a class X felony exceeds that of a class onefelony. Since the indictment did not inform Edmonds that he was beingcharged with the violation of a class X felony at a point in theprocess before he made his decision whether or not to go to trial, Ibelieve the amendment to the indictment was substantive and not merelya formality, as the majority has concluded. As support for itsconclusion, the majority holds that Edmonds should have known that,even though the statute cited in the original draft of the indictmentwas for a different crime, he could have been punished in the moresevere way because of the language in the indictment. The indictmentused descriptive language that the alleged crime took place, "on apublic way within 1000 feet of the real property comprising anyschool, regardless of the time of year." The majority holds that thepresence of that language in the indictment, put Edmonds on notice ofthe possibility that he could be punished for violation of a class Xfelony, even though the indictment specifically informed him he wasfacing a class one charge.

The constitution and statutes of this State provide, of course,that no person shall be convicted of an offense which he has not beencharged with having committed. People v. Lewis, 83 Ill. 2d 296, 300(1980). This is not merely a technical defect in the indictment orprocedural formality. I believe the error of not identifying thestatute under which Edmonds was ultimately convicted is substantive. Where an accused is charged with a single offense, he cannot beconvicted of an offense that was not charged unless the offense ofwhich he is found guilty is a lesser included offense of the onecharged. People v. Schmidt, 126 Ill. 2d 179, 183 (1988), citingLewis, 83 Ill. 2d at 300.