People v. Castino , 433 Ill. Dec. 44 ( 2019 )

2019 IL App (2d) 170298No. 2-17-0298
Opinion filed June 14, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 15-DT-2239
)
MATTHEW R. CASTINO, ) Honorable
) Paul A. Marchese,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Birkett and Justice Hutchinson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Matthew R. Castino, appeals his conviction of driving under the influence
(DUI) for driving with heroin in his breath, blood, or urine (625 ILCS 5/11-501(a)(6) (West
2014)). He contends that the evidence was insufficient to prove him guilty beyond a reasonable
doubt when the arresting officer was not certified as a drug recognition expert (DRE), the court
previously dismissed a count alleging impairment, and a video contradicted the officer’s
testimony. We affirm.
¶2 I. BACKGROUND
¶3 Defendant was arrested on August 21, 2015, and charged with multiple counts, including
the DUI charge at issue on appeal. In January 2017, a bench trial was held.
2019 IL App (2d) 170298¶4 Evidence at trial showed that, on August 21, 2015, Hanover Park police officer Tim
Allen and Detective Dan Cortese were patrolling in an unmarked car when Allen observed a
woman exit a car at a gas station and throw out a metal object. The woman returned to the car,
and it pulled out of the gas station. The car had expired plates, was driving approximately 10
miles per hour in a 40-mile-per-hour zone, and drifted between lanes. Based on those
observations, the officers stopped the car.
¶5 Allen approached the car and spoke to defendant, who was sitting in the driver’s seat.
According to Allen, defendant’s eyes were very red and his pupils very constricted. Defendant
had fresh and old track marks on his arms and noticeable swelling in his arms and hands.
Defendant’s nose was bleeding, there was a white powdery substance in his right nostril, and his
shirt appeared to have a dry blood-like stain on the front.
¶6 Allen testified about his experience and specialized training that focused on gangs and
drugs in the community. He had taken several drug classes, including one that covered heroin.
Allen also took a drugged-driver certification class that covered heroin and the cues that a person
exhibits when under the influence of a narcotic. However, Allen was not qualified as a DRE.
Throughout his personal and professional life, Allen had observed individuals under the
influence of narcotics over 100 times and had been involved with stops involving heroin
approximately 15 times. He had also investigated individuals who had recently used drugs that
left fresh track marks on their arms. Based on his training and experience, Allen opined that
defendant’s track marks were both fresh and old and that defendant’s swollen hands and arms
and constricted pupils indicated narcotics use. Allen testified that, based on his training and
experience, heroin can be white and can be snorted, causing the nose to bleed.
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2019 IL App (2d) 170298¶7 During the stop, Allen noticed a hypodermic needle in the pocket of the driver’s-side
door of the car. Defendant admitted that the needle was his. Allen testified that, based on his
training and experience, such needles are commonly used to ingest narcotics and could create
track marks. According to Allen, defendant also said that he was a heroin addict and had last
used heroin a week ago. When Allen asked defendant about the appearance of defendant’s eyes
and nose, defendant responded that he thought that it was from the day before or a few hours
ago. When Allen asked about the appearance of defendant’s arms, defendant admitted that he
had used a few hours ago, in the morning. Allen then shined his flashlight into defendant’s eyes
and noticed that defendant’s pupils did not constrict. There was no video of Allen’s interactions
with defendant while defendant was sitting in the car.
¶8 Allen next searched defendant outside of the car and found in defendant’s pockets a blue
rubber band, a paper towel with a blood-like substance on it, a folded piece of paper, and a
cotton swab. Allen testified that, based on his training and experience, the recovered items were
consistent with a drug kit. A search of the car revealed numerous hypodermic needles scattered
throughout. A search of the woman in the passenger’s seat revealed small plastic bags of a white
powdery substance that field-tested positive for heroin. Allen could not recall the specific color
that the test would show, but he testified that it changed color to show that the substance was
heroin.
¶9 Allen next administered field sobriety tests to defendant, which were video recorded.
The video shows that, before administering the tests, Allen checked that the device was
recording and then asked defendant to tell him again when he last used heroin, stating that
defendant had just said that it was a week ago and now did not know when it was. Allen told
defendant that, looking at his eyes and arms, he knew that defendant had shot up within the last
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2019 IL App (2d) 170298couple of hours. Defendant denied using heroin, stating that he was not on any drugs, had not
had any heroin, and had not admitted to doing any drugs.
¶ 10 Allen administered the horizontal gaze nystagmus test, the lack-of-convergence test, the
vertical gaze nystagmus test, the walk-and-turn test, the one-leg-stand test, and the Romberg test.
During the tests, defendant’s eyes were still red, his pupils still very small, and they did not track
back and forth smoothly. Defendant displayed a lack of convergence in one of his eyes and was
not able to look directly upward to Allen’s finger. During the walk-and-turn test, defendant
stepped off the line, raised his arms, and did not touch heel to toe. During the one-leg-stand test,
defendant swayed, raised his arms, and miscounted. During the Romberg test, Allen observed
eyelid trembling, defendant swayed back and forth, and he overestimated a 30-second interval by
3 seconds.
¶ 11 Allen opined that defendant was under the influence of heroin. Defense counsel objected
on the basis that Allen was not qualified as a DRE. The trial court initially overruled the
objection, stating that, while Allen’s training was not as extensive as that of a DRE, he could
testify to his opinion. However, the trial court later reversed itself before issuing its finding of
guilt, stating:
“I want to stop at this point before I forget and indicate that I ruled that the officer could
offer his opinion as to the impairment as to Heroin in this case. For the purposes of the
record, I am versing [sic] myself on that. As I looked through more case law during the
break and between witnesses, I don’t think that’s the correct ruling. So his opinion as to
whether or not the defendant was under the influence of Heroin—just the opinion
question, which is what was objected to—because he’s not a DRE, because he hasn’t had
that extra training, I am going to strike it. He did testify as to other things that there was
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2019 IL App (2d) 170298foundation to in his testimony, but specifically as to the opinion, which is what was
objected to, that objection is sustained. The answer as to the officer’s opinion that he was
under the influence of Heroin is going to be stricken, and I’m not going to consider it in
my ruling.”
¶ 12 Defendant was taken to the police station, where he refused to provide blood and urine
samples. Officer Mark Atkinson searched the garbage can at the gas station and found an iced-
tea can that was torn in half. Inside was a syringe, a small plastic bag, and a Ziploc plastic bag in
a paper towel. Based on his training and experience, Atkinson opined that the items were used to
cook heroin before it was ingested. Atkinson also found a hypodermic needle, which would be
commonly used to ingest heroin.
¶ 13 Cortese testified and corroborated Allen’s testimony. During the stop, Cortese noticed
that defendant’s hands were puffy and his arms were very swollen with track marks everywhere.
Based on his training and experience, Cortese believed that some of the track marks were fresh.
Cortese was present when the bags containing a white powdery substance were recovered from
the woman in the car. Like Allen, Cortese had attended specialty training, and he had been
involved in 20 or 30 heroin-related stops in his professional life. Like Allen, Cortese could not
recall the specific color the field test would show, but he testified that it showed that the
substance taken from the woman was heroin.
¶ 14 After the close of the State’s case, the court granted defendant’s motion to dismiss a DUI
charge based on impairment, finding that the State had not shown that defendant was impaired to
a degree that rendered him incapable of driving safely. See id. § 11-501(a)(4). Defendant did
not present any evidence, and the court found him guilty of the remaining charges. The court
discussed the evidence, noting that defendant did not do poorly on some tests, including the
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2019 IL App (2d) 170298Romberg test. However, the court further noted that the issue was use instead of impairment.
The court noted the observations of powder and blood in defendant’s nose, track marks on his
arms, and swollen hands. The court also noted defendant’s admission that he used heroin several
hours earlier and the presence of drug paraphernalia. Ultimately, the court held that there was “a
lot” of circumstantial evidence to prove defendant guilty beyond a reasonable doubt.
¶ 15 Defendant moved for a new trial, arguing that the evidence was insufficient because
Allen was improperly allowed to testify about his opinions when he was not qualified as a DRE.
He also argued that, in order to convict him based on circumstantial evidence, the State had to
prove impairment, and the court specifically found that there was no impairment when it
dismissed the other DUI count. The court denied the motion, stating that, while defendant’s
performance on the field tests was not terrible, there was some evidence of impairment. The
court sentenced defendant to 12 months’ supervision, and he appeals.
¶ 16 II. ANALYSIS
¶ 17 Defendant contends that the State failed to prove him guilty beyond a reasonable doubt
when the State provided no expert testimony, it failed to prove substantial impairment, and
Allen’s testimony was contradicted by the video.
¶ 18 To sustain defendant’s conviction of DUI, the State was required to prove that defendant
was driving a vehicle with any amount of heroin in his breath, blood, or urine resulting from the
unlawful use or consumption of it. Id. § 11-501(a)(6). On a challenge to the sufficiency of the
evidence, we must determine whether, after viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found the essential elements of the offense proven
beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48. The reviewing court will
not retry the defendant or substitute its judgment for that of the trier of fact on issues pertaining
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2019 IL App (2d) 170298to conflicts in testimony, the credibility of witnesses, or the weight of the evidence. Id.Additionally, the trier of fact is not required to disregard inferences that flow normally from the
evidence or to seek out all possible explanations consistent with innocence and raise them to a
level of reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 281 (2009).
¶ 19 Expert testimony is not required in every DUI drug case. People v. Gocmen, 2018 IL
122388, ¶¶ 34, 37-38. Circumstantial evidence may be used to prove the presence of a substance
in a defendant’s breath, blood, or urine. People v. Kathan, 2014 IL App (2d) 121335, ¶ 20.
Circumstantial evidence is proof of facts and circumstances from which the trier of fact may
infer other connected facts that reasonably and usually follow according to common experience.
People v. McPeak, 399 Ill. App. 3d 799, 801 (2010). Likewise, a conviction of DUI may be
supported solely by the credible testimony of the arresting officer. People v. Janik, 127 Ill. 2d
390, 402 (1989). Opinion testimony of the arresting officer is not necessary, however. People v.
Bitterman, 142 Ill. App. 3d 1062, 1065 (1986). Moreover, a defendant’s admissions can provide
direct evidence to sustain a conviction. People v. Ciborowski, 2016 IL App (1st) 143352, ¶ 110.
Although the State was not required to prove that a drug in defendant’s system impaired his
ability to drive, impaired driving was relevant circumstantial evidence. Kathan, 2014 IL App
(2d) 121335, ¶ 20.
¶ 20 The case law illustrates how circumstantial evidence may be sufficient to prove that a
defendant had a drug in his breath, blood, or urine, even without the results of field sobriety tests.
For example, in People v. Briseno, 343 Ill. App. 3d 953, 962 (2003), an officer’s observations
that the defendant had slurred speech, dilated pupils, and slower-than-average motor skills were
sufficient proof when coupled with the odor of cannabis on the defendant’s breath and the
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2019 IL App (2d) 170298defendant’s admission that he had smoked cannabis. Thus, even if the trial court had improperly
relied on field sobriety tests, the remaining evidence was sufficient to convict the defendant. Id.¶ 21 In Kathan, we added that impairment was relevant circumstantial evidence that a drug
existed in the defendant’s breath, blood, or urine without expert testimony to that fact. There, we
concluded that the evidence was sufficient when the defendant admitted to taking two Xanax
pills, one recently before driving, and showed signs of impairment, including failure of field
sobriety tests. Kathan, 2014 IL App (2d) 121335, ¶ 21. In comparison, in McPeak, we found
the evidence insufficient when the defendant admitted to smoking cannabis before he was
stopped but did not show any signs of impairment and the only other evidence provided was that
an officer smelled burnt cannabis “about [defendant’s] person.” McPeak, 399 Ill. App. 3d at
802; see also People v. Allen, 375 Ill. App. 3d 810, 812, 816 (2007) (defendant’s admission to
smoking cannabis the night before was insufficient when defendant did not exhibit signs of
impairment and no paraphernalia or drug residue was found in his vehicle); People v. Workman,
312 Ill. App. 3d 305, 311 (2000) (when there is no competent evidence by a qualified expert and
the defendant has not admitted to taking the drug and being under the influence, the lack of
competent testimony may create reasonable doubt absent other sufficiently incriminating
evidence).
¶ 22 Here, there was ample circumstantial evidence that defendant drove with heroin in his
breath, blood, or urine. Defendant exhibited signs of recent drug use in that he had fresh track
marks on his arms and swollen arms and hands. His eyes were red and his pupils were
constricted. Indeed, he showed signs of having used drugs immediately before the stop in that he
had white powder and blood in his nose. That inference was further supported by the evidence
that the passenger threw out drug paraphernalia and had drugs on her person. A hypodermic
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2019 IL App (2d) 170298needle was found in the pocket of the driver’s-side door, and defendant had drug paraphernalia
on his person. Defendant admitted that he used heroin, including that he had done so earlier that
morning. Defendant also exhibited signs of impairment when he drove abnormally slow and
drifted between lanes. Allen also observed that defendant had difficulties during some of the
field sobriety tests, such as by stepping off of the line and raising his arms during the walk-and-
turn test and swaying, raising his arms, and miscounting during the one-leg-stand test. Thus, this
case is not like McPeak or Allen, where there was a lack of circumstantial evidence to prove the
presence of a drug in the defendant’s breath, blood, or urine when he was driving.
¶ 23 Defendant argues that proof of substantial impairment is required in order to convict
based on circumstantial evidence and that the trial court specifically found that he was not
impaired. While the trial court dismissed a count after finding that the State had not shown that
defendant was impaired to a degree that rendered him incapable of safely driving, there
nevertheless were signs of impairment. As previously noted, defendant drove abnormally slow
and drifted between the lanes. He swayed, raised his arms, and stepped off of the line during
field sobriety tests. The case law does not dictate that only a specific level of impairment may be
considered as evidence of the presence of a drug. Rather, impairment is simply a relevant factor
in the overall determination. See Kathan, 2014 IL App (2d) 121335, ¶ 20. It is up to the finder
of fact to determine how to weigh it when reaching a determination of guilt.
¶ 24 Defendant also argues that the trial court wrongly considered his performance on certain
field sobriety tests, in particular the Romberg test and the lack-of-convergence test, when Allen
was not certified as a DRE. However, the trial court specifically stated that it was not
considering Allen’s opinion based on those tests. Further, as in Briseno, the record shows
sufficient evidence without consideration of the tests. Other opinions given by the officers were
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2019 IL App (2d) 170298based on their experience instead of scientific, technical, or specialized knowledge that requires
qualification as an expert. See generally Gocmen, 2018 IL 122388, ¶ 37.
¶ 25 Finally, defendant argues that the evidence was insufficient because the video
contradicted Allen’s testimony that defendant admitted to using heroin on the morning of the
arrest. Certainly, if the video truly contradicted crucial portions of the State’s case, there very
well might be an issue regarding the sufficiency of the evidence. See, e.g., People v. Kotlinski,
2011 IL App (2d) 101251, ¶ 41 (video contradicted the key testimony of the State’s key
witnesses). But here, the video did not do so. Allen testified to statements that defendant made
before the video was taken, while defendant was sitting in his car. The video was taken after
defendant was outside of the car. Thus, the video did not contradict Allen’s testimony to what
defendant said in the car. Although defendant himself, on the video, contradicted Allen’s
testimony, this presented only a conflict in the evidence for the fact finder to resolve. See Janik,
127 Ill. 2d at 402-03. The court was entitled to resolve it against defendant and find him guilty
beyond a reasonable doubt.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, the evidence was sufficient to prove defendant guilty of DUI
beyond a reasonable doubt. Accordingly, the judgment of the circuit court of Du Page County is
affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50 as
costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d
166, 178 (1978).
¶ 28 Affirmed.
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