People v. Love , 2013 IL App (3d) 120113 ( 2013 )

2013 IL App (3d) 120113Opinion filed September 24, 2013
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2013
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-12-0113
v. ) Circuit No. 11-DT-103
)
VERONICA A. LOVE, ) Honorable
) Ronald J. Gerts,
Defendant-Appellant. ) Judge, Presiding.
PRESIDING JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices Carter and Holdridge concurred in the judgment, and opinion.
OPINION
¶1 The State charged defendant Veronica A. Love, with driving while under the influence of
alcohol (DUI) in violation of section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-
501(a)(2) (2010)). During the State’s case-in-chief, the court took judicial notice of the
applicable conversion factor for blood serum alcohol content to whole blood alcohol content.
Defendant requested the court to first inform the jury of the conversion factor as part of the
formal jury instructions. However, ultimately, defendant objected to the language incorporated
into the non-Illinois Pattern Jury Instruction (IPI) submitted to the jury. Following a guilty
verdict, the trial court sentenced defendant to serve a term of court supervision. Defendant
appeals, arguing that language in the non-IPI instruction was improper and the State’s evidence
did not establish her guilt for DUI beyond a reasonable doubt. We reverse and remand for a new
trial.
¶2 FACTS
¶3 The jury received the following evidence. On the night of April 15, 2011, defendant was
present at her friend Michael Caspers' restaurant, located in Momence, for about three hours
while celebrating Caspers’ sixty-first birthday. During the celebration, Caspers served defendant
two vodka drinks, and other bartenders may have served her additional drinks. Shortly after
midnight, defendant left the party and drove away in her vehicle. Ten minutes after she left,
Caspers received a telephone call from defendant explaining she had driven off the road about
2.5 miles from the restaurant. Caspers and his two daughters drove to the scene to check on
defendant. Upon arrival, Caspers observed defendant sitting in her car, which was parked on the
north side of the road. Defendant was crying, thought her leg was broken, and stated she ran off
the roadway.
¶4 While at the scene, Caspers noticed that the car's driver's-side mirror was hanging down
by its cable, the driver's side of the vehicle had visible scratches, the windshield was cracked, and
the passenger-side rear tire was both flat and shredded. On the south side of the road, trees were
damaged and a road sign was bent. About 100 yards away, Caspers noticed shreds of a rubber
tire on the road.
¶5 Caspers testified that he was a former police sergeant, Breathalyzer operator, and accident
reconstruction specialist. In his opinion, defendant was not under the influence of alcohol.
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Caspers believed that defendant had blown a tire, causing her to lose control and drive off the
road. Casper opined that once defendant regained control of her car, she drove back on the road,
and parked on the shoulder.
¶6 Caspers' daughters offered to take defendant to the hospital and Caspers loaded defendant
into his daughters’ car before returning to his restaurant. Shortly thereafter, Caspers received a
call from his daughters informing him defendant refused to go to the hospital and was walking
down the side of the road. Caspers returned to the scene and pleaded with defendant to go to the
hospital. When defendant refused, Caspers' daughter called 911. Three police officers and an
ambulance arrived at the scene.
¶7 Kankakee County Sheriff's Deputy Brooke Payne, one of the responding officers, testified
that when she arrived, defendant was on a stretcher in the ambulance. Payne asked defendant for
her driver's license but defendant stated that she did not know where her purse was. Payne
advised defendant her purse was next to defendant on the stretcher. Thereafter, defendant
removed her wallet from the purse but was unable to retrieve her license from the wallet. Payne
detected a hint of alcohol emanating from defendant and observed that defendant's eyes were red
and bloodshot. Defendant explained that her vehicle had gone off the road, but she was not sure
why. Payne did not notice whether the vehicle's tire was flat and shredded, but did observe tire
tracks leading from the south side of the roadway into a ditch and then back onto the road. Payne
concluded that defendant had driven off the road and interpreted the accident to indicate
defendant was under the influence of alcohol.
¶8 Payne spoke to defendant again at the hospital, where she detected a stronger odor of
alcohol than the odor she detected in the ambulance. Payne placed defendant under arrest for
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DUI and requested that defendant submit to chemical testing for alcohol. Defendant refused the
officer’s request for chemical testing. Defendant was later charged with DUI under section 11-
501(a)(2) of the Illinois Vehicle Code (Code). 625 ILCS 5/11-501(a)(2) (West 2010).
¶9 Registered nurse Katen Hertzberg treated defendant at the hospital. Hertzberg testified
that defendant smelled of alcohol and admitted to consuming alcohol. She testified that, in the
regular course of providing medical treatment, she drew defendant's blood and subjected it to a
blood alcohol test.
¶ 10 The State offered into evidence the blood alcohol test report created by the hospital.
Defendant objected to the report, arguing that it did not meet the requirements of a business
record, in part because the report stated: "Results are intended to be used for medical purposes
only and not for legal or employment purposes."
¶ 11 The court overruled the defense’s objection and admitted the report as a business record
under section 11-501.4(a) of the Code. 625 ILCS 5/11-501.4(a) (West 2010). The court
explained that defendant's concerns about the veracity of the document were relevant to the
weight the jury would give the document, but did not affect its admissibility. The hospital test
record indicated defendant's serum blood alcohol level was 190 milligrams per deciliter.
¶ 12 Outside the presence of the jury, the State requested that the court take judicial notice of
the fact that 1.18 is the proper conversion factor to convert a serum blood alcohol level to whole
blood alcohol level. In support of its request, the State cited to a provision of the Illinois
Administrative Code (Administrative Code), which states, "The blood serum or blood plasma
alcohol concentration result will be divided by 1.18 to obtain a whole blood equivalent." 20 Ill.
Adm. Code 1286.40, amended at 33 Ill. Reg. 8529 (eff. June 4, 2009). Defendant argued that if
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the court were to take judicial notice of the conversion factor, it would need to wait until the jury
instruction phase to inform the jury. The court agreed. After taking judicial notice of the
conversion factor, the court reminded the parties that a non-IPI instruction would be given to the
jury explaining that the court had taken judicial notice of the conversion factor.
¶ 13 After the close of evidence, the court held a jury instructions conference. The State
tendered a proposed non-IPI instruction, along with a copy of section 1286.40, title 20, of the
Administrative Code. The defendant objected to the language in the State's proposed instruction.
The court adapted the proposed instruction, creating what would become People's jury instruction
No. 13, which was given to the jury. The instruction read:
"In the course of this case, you have heard testimony about the results of a blood
draw. There are two ways to measure blood alcohol concentration: by serum
levels or by what is called whole blood. Whole blood is [the] standard used by
law enforcement and legal proceedings, and it can be calculated by converting the
serum level to the whole blood equivalent. In this case, the testimony was that the
serum level was .190. The blood serum or blood plasma alcohol concentration
results will be divided by 1.18 to obtain a whole blood equivalent. After
conversion, the whole blood equivalent is .161."
¶ 14 The jury was also given Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th Supp.
2009) (hereinafter IPI Criminal 4th No. 23.30 (Supp. 2009)), which instructed, in part:
"If you find that at the time the defendant drove a vehicle that the amount
of alcohol concentration in the defendant's blood or breath was 0.08 or more, you
may presume that the defendant was under the influence of alcohol. You never
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are required to make this presumption. It is for the jury to determine whether the
presumption should be drawn. You should consider all of the evidence in
determining whether the defendant was under the influence of alcohol."
¶ 15 The jury returned a verdict of guilty, and the trial court sentenced defendant to two years'
court supervision.
¶ 16 Defendant appeals.
¶ 17 ANALYSIS
¶ 18 A. Jurisdiction
¶ 19 The State argues that this court lacks jurisdiction to consider defendant’s appeal since an
order of court supervision may not result in a final judgment. The State construes the language
of Illinois Supreme Court Rule 604(b) (eff. July 1, 2006) to allow appeals from the conditions of
court supervision but not from the underlying finding of guilty.
¶ 20 The Illinois Constitution prohibits appeals from nonfinal judgments. Ill. Const. 1970, art.
VI, § 6. However, the state constitution grants the Illinois Supreme Court the authority to
"provide by rule for appeals to the Appellate Court from other than final judgments." Id. Our
supreme court authorizes appeals from court supervision orders in Illinois Supreme Court Rule
604(b) (eff. July 1, 2006). Rule 604(b) provides a defendant "may appeal from the judgment and
may seek review of the conditions of supervision, or of the finding of guilt or the conditions of
the sentence, or both." Id.
¶ 21 Clearly, Rule 604(b) provides a defendant the right to appeal both the finding of guilty
and the conditions of supervision. See People v. Utsinger, 2013 IL App (3d) 110536. Therefore,
under Rule 604(b), we conclude this court has jurisdiction over the present appeal and turn to the
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issues presented by defendant for our review.
¶ 22 B. Jury Instruction
¶ 23 Defendant asks this court to reverse her conviction based on an error that occurred when
the court instructed the jury concerning the judicially noticed conversion factor. As a preliminary
matter, we observe defendant has not requested this court to review the court’s decision to allow
the jury to substantively consider the hospital’s blood test results showing defendant’s serum
blood alcohol level was 190 milligrams per deciliter.
¶ 24 Instead, defendant argues the jury instruction concerning the calculations to convert
defendant’s purported serum blood alcohol level to a simple blood alcohol level constitutes
reversible error. Defendant claims the instruction was improper because the jury was not
instructed that “it did not have to apply the conversion factor.” We review a trial court's decision
to give a particular jury instruction for an abuse of discretion. People v. Mohr, 228 Ill. 2d 53(2008).
¶ 25 On appeal, defendant does not dispute the applicable conversion factor was 1.18, based
on section 1286.40 of title 20 of the Administrative Code. Nor does defendant argue the
conversion factor of 1.18 represents an adjudicative fact amenable to judicial notice. In fact, in
People v. Thoman, 329 Ill. App. 3d 1216, 1220 (2002), the court recognized the parties could
have properly asked “the trial court to take judicial notice of, and instruct the jury on, the
appropriate conversion factor.” 1
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Defendant suggested the evidence subject to judicial notice should be presented to this
jury by the court and in the form of a jury instruction. Hence, we do not express an opinion with
respect to whether the purported instruction error could have been avoided if the State simply
published the judicially noticed fact to the jury before the State rested its case.
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¶ 26 The recently adopted Illinois Rule of Evidence 201 (eff. Jan. 1, 2011) governs judicial
notice of adjudicative facts and provides judicial notice may be taken at any stage of the
proceeding (Ill. R. Evid. 201(f) (eff. Jan. 1, 2011)). When a court allows a party’s request to
prove an adjudicative fact by judicial notice in a criminal proceeding, "the court shall inform the
jury that it may, but is not required to, accept as conclusive any fact judicially noticed." Ill. R.
Evid. 201(g) (eff. Jan. 1, 2011). This directive that the jury may accept or reject judicially
noticed facts is rooted in the criminal defendant's constitutional right to a jury trial. U.S. Const.,
amend. VI; Ill. Const. 1970 art. I, §§ 8, 13; see Fed. R. Evid. 201, Notes of on the Judiciary
("mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially
noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury
trial").
¶ 27 Consequently, we next focus on the language of the jury instruction at issue to determine
whether it complies with the mandates of Rule 201. The instruction provides:
“In this case, the testimony was that the serum level was .190. The blood serum
or blood plasma alcohol concentration results will be divided by 1.18 to obtain a
whole blood equivalent. After conversion, the whole blood equivalent is .161.”
(Emphasis added.)
Obviously, the instruction did not include any cautionary language advising the jury it was not
mandated to accept the identified applicable conversion factor or adopt the calculations based on
a formula using this conversion factor and other contested facts of record.
¶ 28 It is significant to the outcome of this issue that the instruction submitted to this jury was
not limited to the single judicially noticed adjudicative fact, that is, the applicable conversion
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factor set out in the Administrative Code. Instead, the instruction contained another reference to
a second significant piece of evidence, defendant’s purported blood serum level, which was not
subject to judicial notice and had been introduced to the jury during the testimony of nurse
Hertzberg. Consequently, the non-IPI instruction became somewhat testimonial in that the court
provided the calculations for the jury using a formula that included a contested fact, the
defendant’s actual blood serum level, multiplied by the conversion factor of 1.18. The instruction
declared, “[a]fter conversion, the whole blood equivalent is .161.” (Emphasis added.) Therefore,
we conclude the court erred by submitting this jury instruction in this case because it does not
comply with the rules of evidence concerning judicial notice.
¶ 29 Next, we examine whether the court's error was harmless. In this context, we must ask:
" 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error?' " Rivera, 227 Ill. 2d at 21 (quoting Neder v. United States, 527 U.S. 1, 18
(1999)).
¶ 30 In another instruction, the jury learned that if it found defendant's whole blood alcohol
content was greater than 0.08, it “may” presume that defendant was "under the influence of
alcohol." IPI Criminal 4th No. 23.30 (Supp. 2009). However, the judicial notice instruction
submitted to the jury, over defendant’s objection, did not contain similar limiting language
suggesting the jury was not mandated to conclude defendant’s blood alcohol level was .161. The
jury could have easily viewed the calculation included a mandated fact showing defendant’s
blood alcohol level twice the amount, namely 0.08, that supported a strong but permissive
presumption of intoxication. Thus, we conclude the instructional error contained in this record
should not be viewed as harmless.
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¶ 31 C. Reasonable Doubt
¶ 32 Defendant also requests this court to reverse the conviction in this case because the State
failed to prove beyond a reasonable doubt that defendant was driving while "under the
influence," an essential element of a conviction for DUI under section 11-501(a)(2) of the Code.
625 ILCS 5/11-501(a)(2) (West 2010). If defendant succeeds upon this claim, principles of
double jeopardy demand that defendant be acquitted without retrial. Burks v. United States, 437
U.S. 1 (1978); People v. Woodall, 61 Ill. 2d 60 (1975).
¶ 33 When reviewing a challenge to the sufficiency of the evidence, this court must determine
whether, viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found all the statutory elements of the crime proved beyond a reasonable doubt.
People v. Collins, 106 Ill. 2d 237 (1985). The Collins standard is less exacting than the harmless
error standard because the Collins standard considers the evidence in a light most favorable to the
State and asks whether any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt.
¶ 34 Significantly, defendant was charged with DUI under section 11-501(a)(2) of the Code.
625 ILCS 5/11-501(a)(2) (West 2010). Subsection (a)(2) proscribes a person from driving a
vehicle while "under the influence of alcohol." Id. The issue on appeal is whether the State
proved beyond a reasonable doubt that defendant was under the influence of alcohol even though
she refused to submit to chemical testing pursuant to the officer’s request. "[U]nder the influence
of alcohol" means under the influence to a degree that renders the driver incapable of driving
safely. People v. Weathersby, 383 Ill. App. 3d 226, 229 (2008).
¶ 35 Intoxication is a question of fact and may be proved in a number of ways. People v.
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Hires, 396 Ill. App. 3d 315 (2009). Circumstantial evidence alone may be sufficient to prove a
defendant guilty of DUI. People v. Diaz, 377 Ill. App. 3d 339 (2007). Likewise, testimony from
the arresting officer alone may be sufficient to prove guilt beyond a reasonable doubt. People v.
Janik, 127 Ill. 2d 390 (1989). Specifically, testimony that a defendant's breath smelled of alcohol
and that her eyes were glassy and bloodshot is relevant evidence of the influence of alcohol.
People v. Elliott, 337 Ill. App. 3d 275 (2003). If a defendant refuses to submit to chemical
testing, that can be evidence of her consciousness of guilt. People v. Jones, 214 Ill. 2d 187(2005).
¶ 36 In this case, defendant admitted she consumed alcohol but denied she was under the
influence. Similarly, her friend, Caspers, confirmed defendant consumed alcohol shortly before
the accident but opined the accident resulted from a blown tire. In contrast, Officer Payne
testified she detected an odor of alcohol emanating from defendant and that defendant's eyes
were red and bloodshot. The officer noticed defendant was confused about the location of her
personal property, considered the circumstances of the accident, and concluded defendant was
under the influence. Once at the hospital, the officer noticed an even stronger odor of alcohol
about the defendant’s person and requested defendant to consent to testing to determine her
blood alcohol level. Defendant refused Payne's request for chemical testing for alcohol,
evidencing her consciousness of guilt. In addition, the attending nurse at the hospital smelled
alcohol emanating from defendant and the hospital blood serum test result confirmed the
presence of alcohol in defendant’s body, regardless of the precise amount. In addition, the jury
received testimony revealing defendant exhibited unusual behavior when Caspers and his
daughters attempted to transport her to the hospital.
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¶ 37 We conclude, this evidence, viewed in the light most favorable to the State, would be
sufficient to prove defendant guilty beyond a reasonable doubt of DUI under section 11-501(a)(2)
of the Code, even without the conversion factor subject to the jury instruction pertaining to
judicial notice. Therefore, we decline to reverse defendant’s conviction outright due to the
insufficiency of the evidence. However, her conviction is reversed and the cause remanded for a
new trial with a properly instructed jury.
¶ 38 CONCLUSION
¶ 39 The decision of the circuit court of Kankakee County is reversed. The cause is remanded
for further proceedings consistent with this opinion.
¶ 40 Reversed and remanded.
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