2020 IL App (2d) 170633-U No. 2-17-0633 Order filed March 27, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

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, ) ) v. ) No. 16-DT-358 ) TYRONE DAVIS, ) Honorable ) Robert J. Morrow, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Justices McLaren and Zenoff concurred in the judgment.

¶1 Held: The State presented sufficient evidence of defendant’s guilt of driving while under the influence of alcohol and did not commit error when it elicited opinion testimony from responding officers.

¶2 Following a jury trial, defendant, Tyrone Davis, was convicted of driving under the influence of alcohol (DUI), 625 ILCS 5/11-501(a) (West 2014), 1 and sentenced to 18 months of 170634

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man (later identified as defendant) exit from the driver’s door. Lorden informed defendant that the park was closed after dark and asked him what he was doing. Defendant responded: “what do you

think I was doing?” At that time, Blowers arrived on scene and the four (Lorden, Blowers, Wild, and defendant) relocated to Shumway Avenue.

¶7 Once there, Blowers spoke with Wild, and Lorden continued to speak with defendant.

Defendant told Lorden that he was driving Wild home. Despite being instructed to keep his hands visible, defendant repeatedly placed his hands in his pockets, so Lorden conducted a pat-down on him. Lorden retrieved two sets of keys. When asked where the keys to the vehicle were, defendant stated he left the keys in the ignition. During this time, Lorden noticed a moderate smell of alcohol from defendant’s breath and that defendant had red, bloodshot eyes. Lorden then asked defendant to complete standardized field sobriety tests (SFST).

¶8 Lorden testified that he received training on the SFST and follows the guidelines presented

by the National Highway Transportation Safety Administration (NHTSA) by reading the instructions for the SFST from a preprinted card. The area in which Lorden administered the SFST on Shumway Avenue was level, well-lit, and free of debris. Lorden testified that the first test he had defendant perform was the horizontal gaze nystagmus (HGN) test. The test contained six total clues, three in each eye. The following exchange occurred:

“Q. How many clues did you see in the defendant?

A. All six.

Q. How many clues at a minimum do you need to see in order to make a determination that an individual had consumed alcohol?

A. Four.

***

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Q. What are the clues that you saw?

A. The clues would be lack of smooth pursuit for each eye. The second one is the onset at -- I am sorry. It would be the sustained and continuous nystagmus at maximum deviation and then the third one is nystagmus prior to 45 degrees.

***

Q. What did the result of the that test show you as the officer?

A. That Mr. Davis had consumed alcohol that night.”

Lorden explained that while he was performing the HGN test, defendant “continually turn[ed] his head back and forth to follow the stimulus,” disregarding the instruction to only move his eyes.

Lorden estimated that he instructed defendant eight to ten times to keep his head still.

¶9 Lorden then testified that he had defendant perform the walk and turn test. After reading the directions from the preprinted card, Lorden demonstrated the test to defendant. Lorden testified that there were a total of eight clues on the walk and turn test and that a minimum of two were needed to determine “whether or not an individual is impaired.” Lorden noted that defendant exhibited three clues by the end of the test:

“One being him breaking that heel-to-toe stance during my instructions; two, lifting

his arms up. And during the subsequent test when he was taking the nine heel-to-toe steps, he also intermittently would raise his arms for balance.

And then instead of -- on the turn instead of conducting small steps to create that turn, he spun on the ball of his foot and did a quick about-face coming back the other way.”

¶ 10 Finally, Lorden asked defendant to perform the one-leg stand test. Lorden read the instructions from a preprinted card and demonstrated the test to defendant. Lorden testified that

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2020 IL App (2d) 170633-U there were a total of four clues on the one-leg stand test and that a minimum of two clues were needed to determine “whether or not an individual is impaired.” Lorden noted three clues:

“I noted that during the test he put his foot down, which is one of the clues. He held his arms up to maintain balance and the third clue was that he -- his torso, he swayed back and forth.”

Lorden noted that defendant initially only had his foot about two inches off the ground, while the instructions required defendant to have his foot six inches from the ground. When prompted to raise his foot to six inches, defendant “became irate and started yelling” at the officers:

“He started lifting his foot about waist high generally speaking and then back down

to the ground, back up. And while doing that, he was waving his arms up and down and staring at myself and other officers, yelling, ‘Is this good enough?’ ”

Lorden testified that he then placed defendant under arrest for DUI.

¶ 11 While in the squad car on the way to the precinct, defendant contested his arrest, stating that “he was only driving her home” and that “he couldn’t be arrested because he wasn’t stopped

on the roadway.” At the precinct, defendant refused to provide a breath sample, telling Lorden, “you blow in it.” When he was informed that if he did not provide a sample within a specified time period, it would be deemed a refusal, defendant stated “fine, let it time out.”

¶ 12 Lorden testified that throughout the encounter, defendant was inconsistent in his reasoning for being on the island and was “either vague or confrontational” in answering Lorden’s questions.

Lorden also testified that he had both personally and professionally witnessed thousands of individuals under the influence of alcohol. When asked if it was his opinion that defendant had been driving while under the influence of alcohol, Lorden responded yes. He based that opinion on defendant’s

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“driving on the bike path, off the bike path, poor decision-making, driving onto two

bridges that are not safe for vehicle traffic, are dangerous to drive on, driving onto an island being park district property after close, his mood swings of being angry and hostile towards

us, being uncooperative at times, the moderate odor of alcohol on his breath, the results of the field sobriety tests, his bloodshot, glassy eyes and his overall demeanor in booking as well.”

Finally, Lorden opined that defendant was not fit to operate a motor vehicle for the same reasons he believed defendant was under the influence of alcohol.

¶ 13 On cross-examination, Lorden admitted that he never saw defendant actually driving the vehicle. He further admitted that his police report did not state that defendant exited from the driver’s side of the vehicle, but rather that he “could see that [defendant] had emerged from the area of the parked vehicle and noted that the vehicle lights had turned off prior to exiting the vehicle.” Lorden’s report was also devoid of any mention of the steps Lorden took during the administration of the SFST, such as checking for pupil size and equal tracking during the HGN.

During cross-examination, the following exchange occurred:

“Q. [Y]ou are trained in NHTSA which is National Highway Traffic Safety and Administration; is that right?

A. Yes.

Q. And as you administer those tests, there is several clues that you have to note?

A. Yes.

Q. And based on those clues, you determined if someone has failed the test essentially?

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A. It would show that they either consumed alcohol or given the test, that they were impaired, showed impairment.”

Nowhere in his testimony did Lorden state that defendant “failed” any of the SFST.

¶ 14 Blowers testified that after he parked his car near the eastern entrance to the island, he walked toward the parked vehicle, using his flashlight to “survey[] the entire island, doing a cursory check of the island to make sure that there aren’t other vehicles that could be a threat.” He

did not see anyone but Lorden, defendant, and Wild on the island. Once at the vehicle, he ran the license plate through dispatch and checked the interior of the vehicle with his flashlight. He did not see anyone else in the vehicle. While walking to Shumway Avenue, Blowers heard defendant state that Wild had “told him to drive across the bridges” and that “he didn’t know he couldn’t drive there.”

¶ 15 Blowers intermittently observed portions of defendant performing the SFST, as he was providing “officer safety” and “dealing with” Wild. He noticed that Lorden had to repeatedly tell defendant to stop moving his head from side to side while performing the HGN test. He observed defendant say “I am not moving my head” while simultaneously moving his head. Blowers also testified that he observed defendant perform the one-leg stand test and observed defendant becoming “very agitated and raised his foot up to waist level, held it there for awhile, went down and up with his foot while waving his arms, you know, from between his waist and his head.”

¶ 16 Blowers testified that he had seen thousands of individuals intoxicated both professionally and personally and had participated in roughly 150 DUI investigations. When asked, Blowers testified that he believed defendant was intoxicated on April 10 based on “his poor performance on the one-leg stand test, his inability to provide answers to some simple questions when we were

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2020 IL App (2d) 170633-U questioning him as to why he was on Clark Island” and “his inability to follow instructions during the [HGN] test.” Based on those same factors, Blowers believed that defendant was not fit to drive.

¶ 17 On cross-examination, Blowers testified that although he did not administer or watch defendant performing the SFST the entire time, he was “still comfortable” in rendering his opinion that defendant was under the influence of alcohol. He also stated that he never observed defendant drive or exit the vehicle. Finally, Blowers admitted that in a previous hearing for the statutory summary suspension, he testified that he was there “primarily for officer safety purposes and didn’t

make any observations about [defendant’s] sobriety at that time.” On re-direct examination, the following exchange took place:

“Q. Was your opinion that this defendant was under the influence of alcohol, was that entirely based on your observations of what he did during those tests?

A. Yes.”

¶ 18 A third officer, Chris Potthoff, also helped secure the scene. Potthoff testified that as the third “backup” officer “it was [his] job to walk around and make sure that there was nobody else, nothing else there that could surprise us or cause anybody harm.” He did a sweep of the island and found no one. He then went to Shumway Avenue where defendant was performing the SFST. He identified that his role was primarily to ensure safety and crowd control. He watched defendant perform aspects of the tests and was particularly alerted to defendant’s movements on the one-leg stand test because “he raised [his leg] all the way up to waist and had his hands waving up really high which *** in my role drew my attention because it’s a lot easier to, you know, move or swing your arms in an offensive manner at that point ***. I was definitely paying very close attention to him then.”

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¶ 19 After defendant was arrested and transported to the station, Potthoff drove the vehicle off the island because a tow truck would not be able to fit across the pedestrian bridges. Potthoff

testified that the vehicle smelled strongly like burnt cannabis, and he performed a search of the vehicle before it was towed. While documenting the vehicle’s contents, Potthoff found a partially smoked cannabis cigarette under the driver’s seat and a plastic cup with a clear liquid that smelled like alcohol in the cupholder. When defendant was informed that the vehicle was towed, he got

“really upset” and stated that it was his girlfriend’s car. “[H]e just kept going on about that, about taking his girlfriend’s car, trouble he was going to be in, stuff like that.”

¶ 20 When asked, Potthoff stated that he formed the opinion that defendant was under the influence of alcohol and was unfit to drive. His opinion “[f]ormed initially when [he] was watching

[defendant] perform the field sobriety tests. His lack of ability to maintain his balance, swinging his arms, the inability to follow commands, not just answer questions but follow commands given by Officer Lorden, that was the primary basis for my determination.”

¶ 21 On cross-examination, Potthoff testified that he never saw defendant drive or exit the vehicle, and that his police report was devoid of any mention of him doing a walk around on the island. Potthoff also testified that there were cameras, camera equipment, and an amplifier in the back of the car.

¶ 22 The State also called Jessica Wild to testify. Wild testified that on April 9 she went to a few bars in Batavia and consumed “a lot” of alcohol, specifically Wild noted that she had “a couple beers” and a mixed drink. About 2:00 a.m. on April 10, she left a bar with a “tall black man.” She had never met the man before but got in a vehicle with him to smoke marijuana. Because her memory was foggy, she was only 75% sure that the man she left with was defendant, but identified that he had similar characteristics of the man she left with. Wild “believed” that defendant was in 170641

2020 IL App (2d) 170633-U the driver’s seat of the vehicle. She was in the passenger seat and did not remember anyone else in the vehicle.

¶ 23 Wild suggested that the two go to a nearby quarry to smoke, but instead of driving toward the quarry, defendant drove “through a parking lot and then onto the bike path and then *** over the bridges to the island in Batavia.” She felt scared when defendant was driving on the bike path

because it was “[a] place that we shouldn’t be driving.” Once defendant stopped the car on the centermost island, Wild became “more scared.” Wild exited the vehicle and walked rapidly away from the car. She then ran into a police officer on one of the bridges. While on the island, she did not see any other civilian aside from defendant.

¶ 24 On cross-examination, Wild admitted that she was “very drunk” on April 10 and she did not witness the man she left with consume any alcohol. She also admitted that she was not 100%

sure that defendant was the driver of the vehicle. While she did not see any other civilian on the island, “there was a chance” that there could have been another person in the vehicle. When asked

on redirect examination whether it was only her and defendant in the car, she testified “Honestly, I was very drunk. As far as I recall it was just the two of us. Could there have been someone else in the vehicle? I really cannot say.”

¶ 25 After the State rested, defendant moved for a directed finding. The trial court denied defendant’s motion, noting “[i]n the light most favorable to the state I am denying the defense

motion. We also have the opinion of three officers who testified that he was under the influence of alcohol in addition to the things the state mentioned.” The defense began its case with its only witness to testify, a woman named K.C. Phongsavath.

¶ 26 Phongsavath testified that around 1:00 a.m. on April 10, 2016, defendant asked her to drive him to a video shoot for one of his clients. Defendant has a photography/videography business.

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Phongsavath testified that she had a larger car that made transporting his camera equipment easier.

She picked him up from a home in Aurora and drove to an address in Batavia that defendant had plugged into his GPS. She had never been to Batavia before and simply followed the GPS’s instructions toward the island. When she got there, she drove over a bridge and parked the car on

some grass near the paved surface she was on. Defendant then exited the vehicle, grabbed some of the camera equipment from the back, and “walked off.” Phongsavath testified that defendant came back to the car and dropped off the equipment before walking away again. Phongsavath saw an

individual approach defendant but then lost sight of them. She sat in the car “for a little bit” and then exited the vehicle. She had never seen defendant under the influence of alcohol but did not believe that he was under the influence of alcohol that evening.

¶ 27 Upon cross-examination, Phongsavath’s testimony began to unravel and she often repeated the State’s questions to “reassure” herself. Phongsavath testified that she recalled only driving on roads, never on a bike path, she did not find it unusual that the bridge she was directed to drive over just barely fit her car, and she was not defendant’s girlfriend. She clarified that she picked up defendant at about 1:15 a.m. in Aurora and immediately drove to the island. She recalled only going over one bridge to the island. She saw no one else but defendant on the island, and no one but her and defendant were in the vehicle. She had never met or knew of Jessica Wild. She was parked for about one minute before defendant got out of the car and walked off. He was outside for about five minutes when defendant walked off with the individual. She waited in the car for a bit before getting out of her car to “get a better view of what was going on.” When she could not see defendant she began “panicking and kind of pacing and walking *** around [her] car.” While she was outside of her vehicle, nobody approached her, and she did not see any officer approach her vehicle.

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¶ 28 She then left the island and called someone to come pick her up. She walked the same direction she entered the island from, over a bridge and toward “a couple of buildings.” When asked what type of buildings they were (i.e. sheds, police stations, churches, etc.), she could not remember. When asked if she saw multiple police cars parked and officers speaking with

defendant, she stated “Well, I just seen -- briefly seen. I didn’t -- I wasn’t paying attention or looking thoroughly of how many there were or -- you know, I was just trying to figure out for myself.” Despite seeing defendant with the officers, she did not stop because she was scared.

¶ 29 After hearing argument from the State and defense, the jury deliberated for a little over

three hours before finding defendant guilty of DUI. Defendant was sentenced to 18 months of court supervision. After several posttrial motions, defendant filed his notice of appeal on August

9, 2017.

¶ 30 II. ANALYSIS

¶ 31 We start by considering whether the State proved defendant guilty beyond reasonable doubt. When a challenge to the sufficiency of the evidence is presented, the relevant question is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond reasonable doubt. People

v. Torruella, 2015 IL App (2d) 141001, ¶ 39. All reasonable inferences must be allowed in favor of the State. People v. Lloyd, 2013 IL 113510, ¶ 42. We will only reverse a conviction if the evidence is so improbable, unsatisfactory, or inconclusive that it raises a reasonable doubt about

the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004). On appeal, we do not retry the defendant or substitute our judgment for that of the jury, as “[i]t is the province of the jury to weigh the evidence, assess the witnesses’ credibility, resolve any conflict in the evidence, and draw