People v. Levario
Annotate this Case
No. 2--96--0911
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 95--CF--2591
v. )
)
ANTONIO C. LEVARIO, ) Honorable
) Philip L. DiMarzio,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Defendant, Antonio Levario, appeals his conviction of unlawful
delivery of a controlled substance within 1,000 feet of school
property (720 ILCS 570/407(b)(2) (West 1994)). Defendant argues
that his conviction must be reversed because the only evidence
establishing that the delivery was within 1,000 feet of school
property was inadmissible hearsay. We agree.
Defendant was charged with (1) unlawful delivery of a
controlled substance within 1,000 feet of school property (count I)
and (2) unlawful delivery of a controlled substance (count II) (720
ILCS 570/401(d) (West 1994)). At trial, the evidence established
that defendant was accountable (see 720 ILCS 5/5--2 (West 1994))
for the sale of $40 worth of cocaine to two undercover police
officers. The sale occurred at an apartment complex. A fence runs
along the rear of the complex, approximately 205 feet from where
the sale occurred. Behind the fence is a large open field.
Somewhere in the large open field are a high school and its
football field. One police officer testified that the fence marked
the boundary for the school's property. The officer later admitted
that he did not actually know where the property line was. A
second officer, the school's liaison officer, testified that the
fence was the boundary. During cross-examination, the liaison
officer admitted that he knew this only because it is what the
school administrators had told him. The trial court denied
defendant's motion to strike the liaison officer s testimony.
The jury found defendant guilty of both counts. After denying
defendant's motion for a new trial, the trial court entered
judgment on count I and sentenced defendant to four years'
imprisonment. Defendant filed a timely notice of appeal.
Defendant does not contest that the State produced sufficient
evidence to prove him guilty of unlawful delivery of a controlled
substance. Instead, he contends that the only evidence that the
State produced to prove that the delivery was within 1,000 feet of
school property was inadmissible hearsay and that, once that
evidence is excluded, insufficient evidence remains to support his
conviction. We agree.
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. People v. Simms, 143 Ill. 2d 154,
173 (1991). Unless hearsay falls within an exception, it is
inadmissible. People v. Grano, 286 Ill. App. 3d 278, 294 (1996).
Here the State attempted to prove the location of the school s
property with testimony from the liaison officer that the school
administrators had told him where the property boundary was. This
is a classic example of hearsay. As such, it should have been
excluded unless the State demonstrated that the testimony fell
within an exception to the hearsay rule.
The State has presented no argument, either in the trial court
or on appeal, that the liaison officer s testimony falls within an
exception to the hearsay rule. Therefore, we must conclude that
the liaison officer s testimony was inadmissible hearsay and that
the trial court should have granted defendant s motion to strike.
Instead of arguing that the liaison officer s testimony was
admissible, the State contends that it was not obligated to prove
the exact location of the property line. Although we agree that
the State does not have to prove the exact location of the
boundary, the State does have to prove that the drug sale occurred
within 1,000 feet of school property.
Once the liaison officer s testimony is excluded, the State s
remaining evidence proves only that a school, which cannot be seen
from the complex, and its football field are somewhere beyond the
fence and that the fence is approximately 205 feet from where the
drug sale occurred. The State presented no competent evidence to
prove that a school building was within 1,000 feet of the drug sale
or that the school owned any of the land between the school
facilities and the fence. Since the State failed to produce this
evidence, we must conclude that the evidence is insufficient to
support a conclusion that the sale occurred within 1,000 feet of
school property.
We therefore exercise our power under Supreme Court Rule
615(b) (134 Ill. 2d R. 615(b)) and reverse defendant s conviction
of unlawful delivery of a controlled substance within 1,000 feet of
school property; enter judgment on count II, unlawful delivery of
a controlled substance; and remand the cause for resentencing on
count II.
Reversed and remanded.
COLWELL, J., concurs.
JUSTICE DOYLE, dissenting:
I respectfully disagree that the State failed to prove that
the controlled substance was delivered within 1,000 feet of school
property. In essence, Officer Kilbourne testified that, in his
capacity as a school liaison officer, he was familiar with the
boundaries of the school grounds. He knew that the grounds
extended to the football stadium and track and ended at the line of
a fence which was maintained by the school to enclose the stadium
and track area. It is undisputed that the drug transaction
occurred 205 feet beyond that fence.
The majority holds that the officer s testimony concerning the
fenced boundary was inadmissible hearsay. Presumably, then, the
only way the State could have met its burden in proving the
location of this public property for these purposes was by
introducing a plat and the testimony of a land surveyor. I
disagree.
In my view, the trial court correctly admitted the officer s
testimony under a commonly applied, but rarely discussed, exception
to the hearsay rule, i.e., that evidence of common repute is
admissible to prove the location of boundary lines.
It has been recognized that the hearsay evidence rule, as
applied to evidence of boundaries, is now subject in this country
to such broad exceptions as almost to be vitiated. *** The rule now
generally established in the United States *** is that evidence of
common repute is admissible as to the location of a private, as
well as a public, boundary line. [Citations.] 12 Am. Jur. 2d
Boundaries 106 (1964). See also 12 Am. Jur. 2d Boundaries 112
(1997).
This form of hearsay exception, has a firm foundation in
traditional common law (State v. Kwak, 80 Haw. 297, 303, 909 P.2d 1112, 1118 (Haw. 1995)), and it is embodied in Federal Rule of
Evidence 803 (20), stating that evidence of the following is not
excluded by the hearsay rule, even though the declarant is
available as a witness: Reputation in a community, arising before
the controversy, as to boundaries of or customs affecting lands in
the community ***. Fed. R. Evid. 803 (20). See also 2 J. Strong,
McCormick on Evidence, 322, at __ (4th ed. 1992) ( When the
location of boundaries of land is at issue, reputation evidence is
admitted to prove that location ).
This principle has been recognized by our supreme court in an
early case. The location of a town lot may be fixed by the
witness from hearsay or common repute, independent of any plat.
Judson v. Glos, 249 Ill. 82, 85 (1911).
An everyday application of this principle in criminal cases is
when, to prove venue, a witness is asked to identify the county in
which a crime occurred. It is generally understood that persons
living in the community would be familiar, albeit by hearsay, with
where the county s boundaries are located. See People v. Jones, 6 Ill. 2d 252, 254 (1955). The same could be said for allowing
common knowledge by repute testimony as to the location of various
public places in the neighborhood, e.g., where Elm Street runs,
where the church parking lot is, etc. Such testimony is justified
by the same circumstantial assurances of trustworthiness inherent
in other types of common knowledge by repute. See State v. Kwak,
909 P.2d 1112, 1117-19.
It is my position that the same exception should apply to prima
facie testimony as to the location of the high school football field
which is enclosed by a fence, particularly when the testimony is by
a witness who is required to know the school grounds as part of his
employment duties. We should not require the production of plats
and surveyors in these cases unless there is an actual dispute
concerning whether the boundary was more than 1,000 feet from the
drug transaction. See State v. Alston, 111 N.C. App. 416, 432 S.E.2d 385 (1993), where testimony substantially identical to the
testimony here was held to be competent and sufficient to prove the
element of proximity of a drug sale to school grounds, although the
analysis did not focus upon the hearsay issue.
Whether predicated on adopting Federal Rule of Evidence 803(20)
or by carrying forward a principle already rooted in the common law,
I believe the trial court s ruling to admit the testimony in
question as prima facie evidence of the school s boundary should be
upheld.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 95--CF--2591
v. )
)
ANTONIO C. LEVARIO, ) Honorable
) Philip L. DiMarzio,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Defendant, Antonio Levario, appeals his conviction of unlawful
delivery of a controlled substance within 1,000 feet of school
property (720 ILCS 570/407(b)(2) (West 1994)). Defendant argues
that his conviction must be reversed because the only evidence
establishing that the delivery was within 1,000 feet of school
property was inadmissible hearsay. We agree.
Defendant was charged with (1) unlawful delivery of a
controlled substance within 1,000 feet of school property (count I)
and (2) unlawful delivery of a controlled substance (count II) (720
ILCS 570/401(d) (West 1994)). At trial, the evidence established
that defendant was accountable (see 720 ILCS 5/5--2 (West 1994))
for the sale of $40 worth of cocaine to two undercover police
officers. The sale occurred at an apartment complex. A fence runs
along the rear of the complex, approximately 205 feet from where
the sale occurred. Behind the fence is a large open field.
Somewhere in the large open field are a high school and its
football field. One police officer testified that the fence marked
the boundary for the school's property. The officer later admitted
that he did not actually know where the property line was. A
second officer, the school's liaison officer, testified that the
fence was the boundary. During cross-examination, the liaison
officer admitted that he knew this only because it is what the
school administrators had told him. The trial court denied
defendant's motion to strike the liaison officer s testimony.
The jury found defendant guilty of both counts. After denying
defendant's motion for a new trial, the trial court entered
judgment on count I and sentenced defendant to four years'
imprisonment. Defendant filed a timely notice of appeal.
Defendant does not contest that the State produced sufficient
evidence to prove him guilty of unlawful delivery of a controlled
substance. Instead, he contends that the only evidence that the
State produced to prove that the delivery was within 1,000 feet of
school property was inadmissible hearsay and that, once that
evidence is excluded, insufficient evidence remains to support his
conviction. We agree.
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. People v. Simms, 143 Ill. 2d 154,
173 (1991). Unless hearsay falls within an exception, it is
inadmissible. People v. Grano, 286 Ill. App. 3d 278, 294 (1996).
Here the State attempted to prove the location of the school s
property with testimony from the liaison officer that the school
administrators had told him where the property boundary was. This
is a classic example of hearsay. As such, it should have been
excluded unless the State demonstrated that the testimony fell
within an exception to the hearsay rule.
The State has presented no argument, either in the trial court
or on appeal, that the liaison officer s testimony falls within an
exception to the hearsay rule. Therefore, we must conclude that
the liaison officer s testimony was inadmissible hearsay and that
the trial court should have granted defendant s motion to strike.
Instead of arguing that the liaison officer s testimony was
admissible, the State contends that it was not obligated to prove
the exact location of the property line. Although we agree that
the State does not have to prove the exact location of the
boundary, the State does have to prove that the drug sale occurred
within 1,000 feet of school property.
Once the liaison officer s testimony is excluded, the State s
remaining evidence proves only that a school, which cannot be seen
from the complex, and its football field are somewhere beyond the
fence and that the fence is approximately 205 feet from where the
drug sale occurred. The State presented no competent evidence to
prove that a school building was within 1,000 feet of the drug sale
or that the school owned any of the land between the school
facilities and the fence. Since the State failed to produce this
evidence, we must conclude that the evidence is insufficient to
support a conclusion that the sale occurred within 1,000 feet of
school property.
We therefore exercise our power under Supreme Court Rule
615(b) (134 Ill. 2d R. 615(b)) and reverse defendant s conviction
of unlawful delivery of a controlled substance within 1,000 feet of
school property; enter judgment on count II, unlawful delivery of
a controlled substance; and remand the cause for resentencing on
count II.
Reversed and remanded.
COLWELL, J., concurs.
JUSTICE DOYLE, dissenting:
I respectfully disagree that the State failed to prove that
the controlled substance was delivered within 1,000 feet of school
property. In essence, Officer Kilbourne testified that, in his
capacity as a school liaison officer, he was familiar with the
boundaries of the school grounds. He knew that the grounds
extended to the football stadium and track and ended at the line of
a fence which was maintained by the school to enclose the stadium
and track area. It is undisputed that the drug transaction
occurred 205 feet beyond that fence.
The majority holds that the officer s testimony concerning the
fenced boundary was inadmissible hearsay. Presumably, then, the
only way the State could have met its burden in proving the
location of this public property for these purposes was by
introducing a plat and the testimony of a land surveyor. I
disagree.
In my view, the trial court correctly admitted the officer s
testimony under a commonly applied, but rarely discussed, exception
to the hearsay rule, i.e., that evidence of common repute is
admissible to prove the location of boundary lines.
It has been recognized that the hearsay evidence rule, as
applied to evidence of boundaries, is now subject in this country
to such broad exceptions as almost to be vitiated. *** The rule now
generally established in the United States *** is that evidence of
common repute is admissible as to the location of a private, as
well as a public, boundary line. [Citations.] 12 Am. Jur. 2d
Boundaries 106 (1964). See also 12 Am. Jur. 2d Boundaries 112
(1997).
This form of hearsay exception, has a firm foundation in
traditional common law (State v. Kwak, 80 Haw. 297, 303, 909 P.2d 1112, 1118 (Haw. 1995)), and it is embodied in Federal Rule of
Evidence 803 (20), stating that evidence of the following is not
excluded by the hearsay rule, even though the declarant is
available as a witness: Reputation in a community, arising before
the controversy, as to boundaries of or customs affecting lands in
the community ***. Fed. R. Evid. 803 (20). See also 2 J. Strong,
McCormick on Evidence, 322, at __ (4th ed. 1992) ( When the
location of boundaries of land is at issue, reputation evidence is
admitted to prove that location ).
This principle has been recognized by our supreme court in an
early case. The location of a town lot may be fixed by the
witness from hearsay or common repute, independent of any plat.
Judson v. Glos, 249 Ill. 82, 85 (1911).
An everyday application of this principle in criminal cases is
when, to prove venue, a witness is asked to identify the county in
which a crime occurred. It is generally understood that persons
living in the community would be familiar, albeit by hearsay, with
where the county s boundaries are located. See People v. Jones, 6 Ill. 2d 252, 254 (1955). The same could be said for allowing
common knowledge by repute testimony as to the location of various
public places in the neighborhood, e.g., where Elm Street runs,
where the church parking lot is, etc. Such testimony is justified
by the same circumstantial assurances of trustworthiness inherent
in other types of common knowledge by repute. See State v. Kwak,
909 P.2d 1112, 1117-19.
It is my position that the same exception should apply to prima
facie testimony as to the location of the high school football field
which is enclosed by a fence, particularly when the testimony is by
a witness who is required to know the school grounds as part of his
employment duties. We should not require the production of plats
and surveyors in these cases unless there is an actual dispute
concerning whether the boundary was more than 1,000 feet from the
drug transaction. See State v. Alston, 111 N.C. App. 416, 432 S.E.2d 385 (1993), where testimony substantially identical to the
testimony here was held to be competent and sufficient to prove the
element of proximity of a drug sale to school grounds, although the
analysis did not focus upon the hearsay issue.
Whether predicated on adopting Federal Rule of Evidence 803(20)
or by carrying forward a principle already rooted in the common law,
I believe the trial court s ruling to admit the testimony in
question as prima facie evidence of the school s boundary should be
upheld.
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