People v. Merritt

Case Date: 09/30/2003
Court: 4th District Appellate
Docket No: 4-01-0711 Rel

NO. 4-01-0711

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

 
THE PEOPLE OF THE STATE OFILLINOIS,
               Plaintiff-Appellee,
               v.
MELISSA A. MERRITT,
Defendant-Appellant.

)
)
)
)
)
)
)
)

Appeal from
Circuit Court of
McLean County
No. 00CF1356

Honorable
Harold J. Frobish,
Judge Presiding.

___________________________________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

Defendant, Melissa A. Merritt, appeals her convictionfor aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(C) (West 2000)), asserting the State failed to provethat her alcohol consumption was a proximate cause of another'sinjuries. We affirm.

I. BACKGROUND

On November 10, 2000, at about 5:20 p.m., defendant wasdriving her van southbound on Towanda Avenue in Bloomington,Illinois, when she hit the victim, John Stevens, as he joggedacross the road wearing headphones. The victim died from theinjuries he sustained in the accident. A Breathalyzer testconducted at 7:12 that evening indicated defendant had an alcohollevel of 0.12. The tests performed on defendant's blood andurine samples taken at 8 p.m. showed a blood-alcohol level of0.097 with no trace of drugs.

In December 2000, a grand jury indicted defendant ontwo counts of reckless homicide (720 ILCS 5/9-3(a) (West 2000)),two counts of aggravated DUI (625 ILCS 5/11-501(d)(1)(C) (West2000)), two counts of DUI (625 ILCS 5/11-501(a)(1), (a)(2) (West2000)), operation of an uninsured motor vehicle (625 ILCS 5/3-707(West 2000)), and unlawful possession of cannabis (720 ILCS550/4(a) (West 2000)). In March 2001, the State chargeddefendant with speeding (625 ILCS 5/11-601(b) (West 2000)) anddriving too fast for conditions (625 ILCS 5/11-601(a) (West2000)).

At the beginning of the May 2001 bench trial, defendantentered a plea of guilty to the unlawful-possession-of-cannabisand operation-of-an-uninsured-motor-vehicle charges. The trialcourt also granted the State's motion to dismiss the driving-too-fast-for-conditions charge.

James Crabtree testified he was driving northbound onTowanda Avenue at the time of the accident. Crabtree stated theconditions were dry and clear on the evening of November 10,2000. According to Crabtree, it was already dark but the lightwas good with several streetlights and car headlights. As heapproached the intersection of Fleetwood and Towanda, Crabtreesaw the victim turn off Fleetwood and jog in the grass alongTowanda. It appeared the victim was going to cross the street. Crabtree lost sight of the victim and stopped on Towanda to makea left turn onto Fleetwood. As he was waiting to make his turn,he heard a loud thump noise and then saw a body rolling down thestreet in his rearview mirror. Before the thump, he did not heara horn or tires. Crabtree stated that, if he had been goingsouthbound, he would have slowed down because the victim lookedlike he was going "to dart out" into the road.

Jennifer Darrow was traveling southbound on TowandaAvenue at the time of the accident. Darrow described the weatheras clear and the area as "pretty dark." She was in the rightlane (adjacent to the curb) when defendant's red van passed herin the left lane approximately a half block before theintersection of Towanda and Fleetwood. As defendant passedDarrow, she swerved a bit. Darrow estimated defendant was going45 miles per hour.

After noticing defendant's van, Darrow noticed thevictim standing on the side of the road and looking at theoncoming traffic. As soon as she saw the victim, she slowed downher vehicle. The victim was about four to five car lengths infront of Darrow when he stepped onto the road. The victimcontinued to cross Darrow's lane. He stopped on the hash marksseparating the southbound lanes, hesitated for a moment, and thenran. The victim was just off the hash marks when defendant's vanstruck him. Before impact, Darrow did not see defendant's vanslow down, any evasive maneuvers by defendant, or the van's brakelights go on or hear the squealing of tires, braking of tires, ora horn. After impact, the van came to a stop in the curbsidelane and never crossed into the northbound lanes. After she sawthe accident, Darrow had no trouble stopping her vehicle.

Ruth Farkas was driving northbound on Towanda Avenue atthe time of the accident. She too described the weather as clearand the area as dark. As she was driving in the passing lane,Farkas noticed the victim on the grass alongside the southboundlanes. She continued to notice him standing in the grass. AfterFarkas changed lanes, she saw headlights veer toward her and sawdefendant's van enter the northbound passing lane. Farkas didnot see the impact but saw the victim's body come off the van.

Richard Pearson was traveling in the northboundcurbside lane when the accident occurred. He did not see thevictim before the accident. He did see something pass in frontof the headlights of the southbound van and then saw the vehicleswerve to the left. Pearson testified defendant was travelingthe same speed as the rest of the traffic.

Police officer Steve Sicinski responded to a dispatchat 5:26 p.m. Upon arrival, he observed defendant's van withfront-end damage and the victim lying in the street. OfficerSicinski learned defendant was driving the van but did notimmediately interview her because she was extremely upset.

After about 5 to 10 minutes, he spoke with defendant. Defendant stated she was near the intersection of Towanda andFleetwood when she saw the victim in the grass runningsouthbound. The victim then darted out into the street. At thattime, defendant applied her brakes and performed an evasivemaneuver to avoid striking him but still struck the victim. Defendant stated she was driving in the curbside lane at 35 milesper hour when the accident occurred. Officer Sicinski did notobserve any skid marks at the scene.

As he spoke with defendant, Officer Sicinski noticed anodor of alcohol on defendant's breath and her eyes werebloodshot. Even though defendant denied drinking any alcohol,Officer Sicinski had defendant do some field-sobriety tests. Defendant failed to follow directions while doing the walk-and-turn test and the one-legged-stand test. Defendant alsoperformed the finger-to-nose test incorrectly four out of the sixtries. Based on his observations, Officer Sicinski opined thatdefendant was intoxicated. Defendant later admitted she haddrunk six to eight beers, ending at about 2 a.m. on November 10,2000.

Bloomington Detective John Atteberry testified hearrived at the scene of the accident at about 5:30 p.m., at whichtime it was dusk. According to Atteberry, a little sunlight waspresent.

Police officer Oliver Love arrived at the scene of theaccident as Officer Sicinski was finishing field-sobriety testson defendant. Officer Love spoke with defendant for about sevento eight minutes at the scene. Defendant admitted that she wasgoing 35 miles per hour, five miles per hour over the legal speedlimit, at the time of the accident. Officer Love smelled alcoholcoming from defendant and noticed defendant's eyes were glazedover and bloodshot and her speech was slurred. Based on hisexperience, Officer Love opined defendant was under the influenceof alcohol.

Kristen Devitt, a former McLean County probationofficer, was visiting some former coworkers on the evening ofNovember 10, 2000, when Officer Sicinski asked her to observedefendant while defendant used the rest room. Devitt testifieddefendant smelled like alcohol, spoke slowly and with a littlebit of a slur, had glassy and bloodshot eyes, and swayed whilewalking and sitting. Defendant swiped at the toilet paper onceand missed it. Devitt stated defendant appeared to be moderatelyintoxicated.

Dr. Bryan Mitchell, a forensic pathologist, performedthe autopsy on the victim. Dr. Mitchell concluded the victim'scause of death was cranial cervical injuries as a consequence ofa pedestrian-versus-motor-vehicle mishap.

Police officer David White, an accident reconstructionist, analyzed the scene of the accident. He testified he sawno skid marks on the roadway relating to the accident. McLeanCounty deputy coroner, Tony Becker, also analyzed the scene. Becker estimated defendant was traveling 45 miles per hour, plusor minus four, at the time of the accident.

Judy Merritt, defendant's mother, and ChristopherBartosik, defendant's boyfriend, both testified they talked withdefendant after the accident, and she did not appear intoxicated.

At the conclusion of the trial, the trial court founddefendant guilty of all the charges except for the two reckless-homicide charges. As to the reckless-homicide charges, the trialcourt found the State failed to prove beyond a reasonable doubtthat defendant had a conscious disregard of a substantial andunjustifiable risk where defendant (1) had a right to be in thelane in which she was driving, (2) did not believe the victimwould cross in front of her, and (3) was entitled to a reasonablebelief that a jogger would not cross in front of her. Regardingthe aggravated-DUI charges, the trial court found the victim'sactions were a proximate cause of his fatal injuries. The courtalso found defendant's failure to react in any way prior to thecollision to what she should have observed was also a proximatecause. The court noted defendant should have seen the victimenter the street and slowed her vehicle accordingly but did notbecause she was impaired by alcohol.

After a July 2001 sentencing hearing, the trial courtsentenced defendant to four years' imprisonment and ordered herto pay $15,095.61 in restitution and $1,315 in fines and fees onthe aggravated-DUI conviction. The court also ordered her to paya $500 fine for her operation-of-an-uninsured-motor-vehicleconviction and $610 in fines and fees for her unlawful-possession-of-cannabis conviction.

In August 2001, the trial court denied defendant'smotion to reconsider sentence. This appeal followed.

II. ANALYSIS

Defendant contends the State failed to prove defendantguilty beyond a reasonable doubt of aggravated DUI because itfailed to prove defendant's alcohol consumption was a proximatecause of the victim's death.

When considering a defendant's challenge to thesufficiency of the evidence, the question for the reviewing courtis whether, after viewing the evidence in the light mostfavorable to the State, any rational trier of fact could havefound the essential elements of the crime beyond a reasonabledoubt. Proof beyond a reasonable doubt does not require theexclusion of every possible doubt. People v. Shevock, 335 Ill.App. 3d 1031, 1037, 782 N.E.2d 949, 954 (2003). A person commitsaggravated DUI when he or she drives a vehicle while under theinfluence of alcohol and is involved in a motor vehicle accidentthat results in great bodily harm to another, when the DUIviolation was a proximate cause of the injuries. 625 ILCS5/11-501(d)(1)(C) (West 2000); People v. Latto, 304 Ill. App. 3d791, 803, 710 N.E.2d 72, 81 (1999).

Here, the court concluded defendant's driving whileunder the influence of alcohol was a proximate cause of thevictim's death based on its findings that (1) sufficient time didexist for defendant to take greater preventive action if she hadbeen attentive and saw the victim enter the roadway; and (2)defendant's alcohol consumption impaired her ability to observe,to promptly and accurately assess, to make decisions, and to takeprompt action.

Circumstantial evidence alone is sufficient to sustaina conviction where it satisfies proof beyond a reasonable doubtof the elements of the crime charged. People v. Pollock, 202Ill. 2d 189, 217, 780 N.E.2d 669, 685 (2002). The Statepresented sufficient evidence from which the trial court couldhave found beyond a reasonable doubt defendant's alcoholconsumption impaired her driving ability, and thus her drivingwhile under the influence of alcohol was a proximate cause of thevictim's death.

Several witnesses testified as to defendant's impairedphysical and mental abilities. Officer Sicinski testifieddefendant had difficulty following directions during the field-sobriety tests. Officer Love and Devitt testified defendant'seyes were glazed over and her speech was slurred. Thoseobservations are supported by defendant's alcohol level. UnderIllinois law, a person with an alcohol concentration over 0.08 ispresumed to be under the influence of alcohol. 625 ILCS 5/11-501.2(b)(3) (West 2000). Almost two hours after the accident,defendant's alcohol level was 0.12, well above the 0.08.

Moreover, the State presented evidence that otherdrivers observed the victim despite the conditions andsurroundings. Several witnesses saw the victim jogging eventhough it was dark. Darrow, another southbound driver with thesame view as defendant, was able to see the victim enter theroadway and in response slow her vehicle.

The fact that the victim's actions were also aproximate cause of his injuries does not warrant reversal ofdefendant's conviction. A person commits aggravated DUI when hisor her driving under the influence "was a proximate cause of theinjuries" (emphasis added) (625 ILCS 5/11-501(d)(1)(C) (West2000)), not the sole and immediate cause of the victim'sinjuries. See Latto, 304 Ill. App. 3d at 800, 710 N.E.2d at 79(reckless homicide).

The trial court's finding that defendant's belief thejogger would not enter the roadway was reasonable also does notrequire reversal of defendant's conviction. Contrary todefendant's assertion, the court found defendant should haveslowed down and taken evasive action when the victim entered thecurbside lane, not when defendant first observed the victim. Thecourt's oral findings that (1) defendant reasonably believed thevictim would not enter the roadway and (2) defendant should haveseen the victim enter the curbside lane and then taken evasiveaction are not illogical. The court found defendant had time totake preventive measures after the victim entered the roadway andfailed to do so because of her alcohol impairment. Accordingly,we do not find the trial court's acquittal of defendant on thereckless-homicide charges inconsistent with its conviction on theaggravated-DUI charges.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

KNECHT and McCULLOUGH, JJ., concur.