People v. Delhaye , 2021 IL App (2d) 190271 ( 2021 )

2021 IL App (2d) 190271No. 2-19-0271
Opinion filed May 12, 2021
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) Nos. 17-CF-204
) 17-TR-3769
)
KYLE A. DELHAYE, ) Honorable
) Robert P. Pilmer,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion.
Justices Hutchinson and Hudson concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Kyle A. Delhaye, was convicted of felony and
misdemeanor aggravated unlawful use of an electronic communication device. Defendant appeals
his convictions and seeks to vacate them on grounds that the charges were subject to compulsory
joinder with his traffic citation for failure to reduce speed to avoid an accident. He also challenges
the sufficiency of the evidence to support the convictions. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 On the afternoon of October 11, 2016, Selma Martinez drove her car northbound on Route
47 near Yorkville. Martinez’s two daughters, Ashley and Angela Lopez, were passengers in the
2021 IL App (2d) 190271car. Angela sat in the front seat, and Ashley sat in the backseat. Meanwhile, defendant drove a
pickup truck, also northbound on Route 47. As Martinez prepared to turn left onto Corneils Road
from the single northbound lane on Route 47, defendant’s truck struck the rear of Martinez’s car.
Ashley died from the injuries she sustained in the collision, Martinez suffered extensive injuries,
and Angela suffered a concussion and a laceration to the head.
¶4 A. Traffic Citation
¶5 On the day of the collision, October 11, 2016, Yorkville police officer Matthew Nelson
issued defendant a uniform traffic citation, on an “Illinois Citation and Complaint” form, for failure
to reduce speed to avoid an accident, in violation of section 11-601(a) of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/11-601(a) (West 2016)). On January 25, 2017, defendant pled guilty
to the charge and was sentenced to three months of court supervision, assessed fines and costs of
$250, and ordered to attend driving school. In accepting defendant’s guilty plea, the trial court
admonished defendant that “[t]his Court only addressed the issue of whether or not you violated a
traffic law, and whether or not—how you should be punished based upon that petty offense” and
that “it’s for other and different courts that are going to address the issue of the consequences of
what you did.”
¶6 B. Criminal Charges
¶7 On July 7, 2017, the State filed a two-count felony information against defendant for
aggravated unlawful use of an electronic communication device in violation of section 12-610.2(b-
5) of the Vehicle Code (id. § 12-610.2(b-5)). One count was based upon Ashley’s death; one count
was based upon great bodily harm to Martinez. The charges were superseded by indictment on
August 8, 2017, for a felony violation of section 12-610.2(b-5) based upon Ashley’s death. Also,
a day earlier, on August 7, 2017, the State filed a criminal complaint against defendant for a
-2-
2021 IL App (2d) 190271misdemeanor violation of section 12-610.2(b-5) based upon great bodily harm to Martinez. The
indictment and the criminal complaint stated that defendant “operated a motor vehicle while using
an electronic communication device to read an electronic message.”
¶8 C. Pretrial Motions
¶9 On July 25, 2017, defendant moved to dismiss the information on the ground that the State
violated the compulsory-joinder statute (720 ILCS 5/3-3 (West 2016)) by bringing the charges
after defendant pled guilty to failure to reduce speed to avoid an accident, on January 25, 2017,
and after his court-supervision period ended on April 19, 2017. An evidentiary hearing was held
on the motion on October 5, 2017, at which the lead investigator, Yorkville police detective Patrick
McMahon, testified. McMahon stated that a data extraction was performed on defendant’s cell
phone on October 17, 2016. McMahon explained that he was present for the extraction process but
that he did not conduct the extraction, because he had not received training on the extraction
device. McMahon reviewed the data and generated a report on October 18, 2016. The data included
text messages between defendant and Crystal Daniels on the afternoon of the accident. McMahon
acknowledged that he did not conduct any additional phone analysis after October 18, 2016.
¶ 10 The parties stipulated that McMahon’s October 18, 2016, report, “which contained the
times text message[s] were sent and received and the content of the text messages from
Defendant’s phone on 10/11/16 was in the State’s Attorney’s possession & tendered to the
defendant on 1/12/17 in 16 TR 6563.” The parties further stipulated that the “full phone data from
extract[ion] was not yet tendered prior to Jan. 25, 2017.”
¶ 11 McMahon further testified that the Illinois State Police performed an initial investigation
on November 2, 2016, and that he received the Illinois State Police accident reconstruction report
on June 20, 2017. McMahon acknowledged that the report pertained to “mathematical calculations
-3-
2021 IL App (2d) 190271in terms of the speed of the car and how the crash occurred” and not whether text messages were
sent and received on defendant’s cell phone.
¶ 12 The trial court denied defendant’s motion to dismiss in an October 18, 2017, written order.
The trial court pointed out that, at the time the charges were filed against defendant on July 7,
2017, the failure-to-reduce speed case already had been terminated. Thus, the trial court reasoned,
“there was no pending case to be joined, for purposes of the joinder statute.” Accordingly, “[i]t
would have been impossible at the time the felony case was filed to seek to join the traffic case for
the purpose of having a single prosecution as contemplated by the joinder statute.” Moreover, the
trial court reasoned, under our supreme court’s decision in People v. Jackson, 118 Ill. 2d 179(1987), overruled in part on other grounds by People v. Stefan, 146 Ill. 2d 324 (1992), the
compulsory-joinder statute does not apply to offenses that have been charged by the use of a
uniform citation and complaint form for traffic offenses.
¶ 13 On January 11, 2018, defendant again moved to dismiss the two-count information, this
time on the ground that the prosecution for aggravated use of an electronic communication device
violated his right against double jeopardy. The State moved to strike or, alternatively, deny the
motion. On March 13, 2018, the trial court denied the State’s motion to strike and, following
argument, denied defendant’s motion to dismiss. The trial court noted that “the fact there was a
collision is not evidence of violation of failure to reduce speed to avoid an accident.” The trial
court concluded: “I do not believe this is a case where the lesser-included offense precludes this
prosecution.”
¶ 14 D. Trial
¶ 15 A bench trial was conducted on December 17 and 18, 2018. Defendant moved for a directed
finding at the close of the State’s case; the trial court denied the motion.
-4-
2021 IL App (2d) 190271¶ 16 1. The Collision
¶ 17 The evidence established that, on the day of the collision, October 11, 2016, defendant was
employed by Ralph Helm, Inc., which serviced outdoor power equipment. Defendant’s job was to
pick up the equipment from customers for servicing and return the equipment to the customers
upon completion of servicing. Defendant drove a company pickup truck on the day of the collision.
¶ 18 Martinez testified that she and Ashley picked up Angela from work at the store Boombah
on Boombah Way in Yorkville just before 3 p.m. on the day of the collision. Martinez drove her
black Nissan Altima. Martinez planned to show Angela an alternative driving route home—north
on Route 47 and left on Corneils Road. The evidence established that Route 47 at this juncture is
a two-lane north-south highway with a 55-mile-per-hour speed limit. There is no stop sign or left-
turn lane at Corneils Road. Martinez testified that she used her turn signal as she waited one to two
minutes to make the left turn onto Corneils Road. She did not see any vehicles behind her at this
point. Angela testified that her mother had her turn signal on and was pointing out the Corneils
Road sign before Angela heard a loud crash.
¶ 19 The parties stipulated that the first 911 call came in at 3:03:18 p.m. on October 11, 2016,
from a caller named “Miles,” who was not a witness to the crash. On the recorded call, Miles stated
that he missed the crash by “about a minute” and indicated that there were “about 10 people”
helping at the scene of the collision. The parties further stipulated that Yorkville police officers
were dispatched to the scene at 3:03:40 p.m.
¶ 20 Jessica Romero testified that, shortly before 3 p.m. on October 11, 2016, she drove
southbound on Route 47 to Yorkville. She “barely remember[ed]” seeing “a black car that was
coming” as she approached the intersection of Route 47 and Corneils Road. When she reached the
intersection, she heard “noise like a crash, like something very loud.” Debris, soil, and glass fell
-5-
2021 IL App (2d) 190271on her car. Romero’s windshield was broken. She stopped, exited her car, and proceeded toward
the car involved in the crash. A man and a woman had stopped and were at the scene. Romero
“saw that the woman [who] stopped was dialing 911.” When questioned as to how much time
passed between when the objects hit her car and when she first “heard” someone calling 911,
Romero responded: “I would say maybe a minute. Maybe a minute or two minutes maximum.”
She also stated that she did not know whether it was the man or the woman who was the first to
call 911.
¶ 21 Nelson testified that, at about 3:03 p.m., he was dispatched to the scene. When he arrived,
he saw “the black Nissan on the west edge of Route 47.” The car had “severe rear end damage”
with the trunk “pushed up over the rear axle.” The driver was “slumped sideways towards the front
seat passenger,” and the front-seat passenger was “disoriented and being assisted by the
paramedics.” Nelson saw “hair coming up between” the front seat and the backseat but did not see
a body beneath the hair. Nelson also saw “a red Chevy Silverado just north of that in the field with
front end damage.” Defendant was standing next to the vehicle. Nelson further stated that the
intersection of Boombah Way and Route 47 is “[l]ess than half a mile” from the intersection of
Corneils Road and Route 47.
¶ 22 Nelson testified that, after speaking to individuals at the scene, he issued defendant a traffic
citation that day for failure to reduce speed to avoid an accident. A certified copy of defendant’s
conviction of this offense was introduced into evidence without objection, to show defendant was
driving the vehicle involved in the crash. Nelson drove defendant to the hospital. Nelson did not
know how long defendant sat in the back of the squad car before they drove to the hospital, but he
testified that they arrived at the hospital around 4:20 p.m. En route to the hospital, Nelson requested
defendant’s verbal consent to provide his cell phone. Nelson testified that “I believe he gave it
-6-
2021 IL App (2d) 190271[(defendant’s cell phone)] to me when we got to the hospital.” Nelson returned to the police station
that day and placed the cell phone into evidence. Defendant provided written consent the next day
to search the cell phone.
¶ 23 Defendant’s employer, Ralph Helm, testified that he drove to the intersection of Route 47
and Corneils Road on October 11, 2016, after defendant called Helm to advise that he had been in
an accident. Helm testified that his company’s standard business practice was to provide drivers
with clipboards containing information regarding scheduled pick ups and deliveries. After
receiving permission from a police officer, Helm removed the following items from the pickup
truck defendant had been driving: a clipboard, a check, a navigational device, and a battery jumper
pack. Helm testified that no police officer requested to photograph any of the items removed. Helm
also removed, with permission from a police officer, an 18-foot trailer that was attached to the
pickup truck.
¶ 24 Daniels, defendant’s girlfriend at the time, testified that she and defendant engaged in a
series of text messages on October 11, 2016, that began with a text message from Daniels shortly
before 3 p.m. Defendant responded “[a]lmost immediately.” Daniels testified that the text-message
conversation lasted several minutes and that it was constant. Every time she sent a text message,
defendant replied. Eventually, however, Daniels sent defendant several text messages to which he
did not reply.
¶ 25 Later, in the evening hours after the collision, she received a friend request on her Facebook
account from an account with the name Tyler Fletcher. She accepted the friend request and
received several messages, at which point she realized that the messages were from defendant. The
evidence established that defendant had created the account four years earlier. The sequence of
messages read:
-7-
2021 IL App (2d) 190271“Hey it’s me this is a spam account I can’t really talk right now but I’m okay I need
you to not call text or snap my phone it’s not in my possession.
Don’t use my name
I was in a very bad accident and it’s going to cause lots of legal troubles ill get back
to u when I can I’m so sorry I’m out of the hospital and I’m at home
And you can’t tell a soul that I told you that[.]”
¶ 26 The parties stipulated that, as a result of the crash, Martinez suffered multiple injuries
resulting in great bodily harm. The parties also stipulated to testimony that the cause of Ashley’s
death was multiple blunt force injuries resulting from the pickup truck striking the car.
¶ 27 2. The Investigation
¶ 28 McMahon testified regarding the subsequent investigation. On October 17, 2016, after
Yorkville police detective Sergeant Ray Mikolasek removed defendant’s cell phone from the
evidence vault, they went to the Kendall County Sheriff’s Department to use the department’s
Cellebrite device on defendant’s cell phone. McMahon explained that a Cellebrite device is a
“forensic extraction device which is used for digital forensics to access readily viewable
information on digital devices as well as information that may have been hidden or deleted.”
¶ 29 McMahon testified that he had not used the Cellebrite device prior to this date (although
he has used it approximately 7 to 10 times since then), but he received contemporaneous instruction
from Mikolasek. McMahon described the device and explained the process. Namely, “[o]nce
turning the device on, it gives you a few prompts, it walks you through the entire process to
download [the] phone” to be examined. “And once you hook the phone up to the Cellebrite
machine with a memory card to transfer the recovered information to, the machine walks you [sic]
what you want, whether it’s an extraction which provides the user with only what’s visible on the
-8-
2021 IL App (2d) 190271phone, or there’s a physical extraction which offers what’s visible as well as what is not really
visible, which means deleted or hidden data.” The data recovered from an extraction includes
“everything, call logs, phone books, who the contacts are. MMS messages, SMS messages, which
are short message service, which are your text messages. Videos. Pictures you take, images you
save.” The extraction may also recover conversations on a third-party application, such as
Snapchat.
¶ 30 McMahon testified that Mikolasek “walked me through how to use the device,” at which
time “we performed the extraction on the defendant’s cell phone” by connecting the phone to the
Cellebrite device and following the prompts. McMahon further explained his collaboration with
Mikolasek on the Cellebrite extraction: “We were sitting right next to each other while he was
explaining to me how the process is done and how you use the machine. So I was right there. I
don’t recall who completed it. But we were right there together.”
¶ 31 A report with 4488 pages of data was generated; they downloaded the information to a
flash drive. McMahon proceeded to review the report over the next couple of days. He testified
that the report included a 10-message text conversation between defendant and Daniels on the day
of the collision, October 11, 2016, with the time stamped, as follows:
2:58:15 p.m. Daniels: “I can just log into my snapchat.”
2:58:25 p.m. Defendant: “Good”
2:59:06 p.m. Daniels: “Yeah. I have so much to say tonight. Honestly”
2:59:25 p.m. Defendant: “Write it down as soon as possible.”
3:00:18 p.m. Daniels: “I will. I have a feeling this talk tonight won’t be fun. But I
am gonna be honest with u”
3:00:50 p.m. Defendant: “It’s not going to be fun I’m saying it right now.”
-9-
2021 IL App (2d) 1902713:01:29 p.m. Daniels: “I know but to be honest I have been holding in so many
feelings. Like u have no idea.”
3:01:31 p.m. Defendant: “Idk of [sic] you checked snapchat yet but I want 100%
honesty whether it’s good or bad news or else I have nothing left to say to you”
3:01:51 p.m. Defendant: “I can’t stand lying to my face.”
3:01:55 p.m. Daniels: “U can be mad as much as u can but it’s not all my fault. U
had a lot to do with it to [sic]”
¶ 32 There were three additional text messages from Daniels to defendant, with the time
stamped, as follows:
3:03:02 p.m. Daniels: “Yeah I know. I want honesty from u as well”
3:03:31 p.m. Daniels: “Yeah I can’t stand someone messing with my feelings right
now”
3:03:38 p.m. Daniels: “For how long”
¶ 33 McMahon testified that the Cellebrite report showed that all 13 of these text messages had
been deleted from defendant’s cell phone. However, the text messages were recovered during the
extraction process. He acknowledged that the report did not reflect when the text messages were
deleted. McMahon further testified that the report showed that text messages on defendant’s cell
phone from earlier in the afternoon and later in the afternoon had not been deleted.
¶ 34 McMahon explained that the time stamps in the report reflected when each text message
was sent or received. He acknowledged that the report reflected only that the messages were read,
but not when the messages were read. He also acknowledged that the report did not reflect whether
defendant created the texts by “text talk,” i.e., “hold[ing] the phone with the application to text”
and “speak[ing] into the phone” and “dictat[ing] to the phone what you want the message to read.”
- 10 -
2021 IL App (2d) 190271¶ 35 McMahon testified regarding additional content from the Cellebrite extraction. Namely,
the extraction showed 10 Snapchat videos of defendant in the pickup truck created on the day of
the collision, each approximately 10 seconds or less, in which defendant was driving while
listening to music and singing along or nodding his head. Five of the videos were created between
1:14 p.m. and 2:06 p.m. and were deleted at approximately 3:23 p.m.—after law enforcement
arrived at the scene. Four videos were created between 1:01 p.m. and 1:08 p.m. and deleted
between 1:37 p.m. and 1:38 p.m. One video was created at 9:54 a.m. and deleted at 10:46 a.m.
¶ 36 Defendant objected to the admission of the Snapchat videos on relevance grounds. Citing
People v. Morales, 2012 IL App (1st) 101911, the State argued that the videos were a continuing
narration of crimes committed that day and not other-crimes evidence. The trial court agreed and
overruled defendant’s objection, finding that the evidence provided context for the charged
offenses. McMahon proceeded to testify that, in the videos, defendant was leaning toward the
camera and the phone was being moved while filming as if someone was holding it.
¶ 37 McMahon also testified regarding his assistance in conducting the reconstruction analysis.
On November 2, 2016, he accompanied Illinois State Police officers to the impound lot where the
vehicles had been towed. A lightbulb from the rear of Martinez’s Nissan was secured as evidence.
On November 2, 2016, McMahon accompanied the officers to the collision scene. McMahon
acknowledged that he told Illinois State Police sergeant Richard Vanko that the driver of the pickup
truck may have been using an electronic communication device or looking for a clipboard at the
time of the crash.
¶ 38 Vanko testified as an expert in the field of traffic crash reconstruction. He testified that he
was contacted on October 21, 2016, to assist in the reconstruction of the accident in this case. He
stated an Illinois State Police accident reconstruction report usually takes about six months to
- 11 -
2021 IL App (2d) 190271complete after an accident. Vanko detailed his investigation. Vanko assisted McMahon in
executing a search warrant to obtain an image of the pickup truck’s event data recorder. He
explained that an event data recorder is a device that “records precrash data, crash impulse data,
and it will give a snapshot of what the vehicle was doing at the time of the crash.” Vanko noted
that Martinez’s Nissan did not have “a module that can be read or records precrash data that we
have the ability to read.” Vanko further testified that the lightbulb recovered from Martinez’s car
was from the rear right brake light. Based upon the “stretching in the filament” of the lightbulb,
Vanko believed that the brake light was activated at the time of the collision. Vanko acknowledged
that he could not determine whether the Nissan was stopped or just slowing down.
¶ 39 In addition to reviewing the image of the pickup truck’s event data recorder, inspecting the
vehicles, and receiving the case file, Vanko inspected the collision scene on November 2, 2016.
He testified that, “[a]fter comparing the original photos from the day of the crash with what I was
looking at, I marked with a can of paint the marks that I wanted to measure later that I was certain
were from the day of the crash.” The markings included tire marks, gouges, and scratches. Vanko
testified that he saw no evidence in the photographs or on the roadway of preimpact braking by
the pickup truck, such as skid marks or an impending skid mark. Vanko was able to determine a
path of travel for the pickup truck and observed tire marks indicating postimpact braking as the
pickup truck crossed into the shoulder of the southbound lane. Vanko documented the scene and
subsequently created a forensic diagram of the scene.
¶ 40 Vanko later performed analyses of the relative speed of the vehicles in the collision. Vanko
opined that defendant’s pickup truck was traveling at the speed of 63 to 66 miles per hour at the
time of impact. He also opined that there was no preimpact braking by defendant’s pickup truck
and that there was no postimpact braking by the truck until it had traveled 137 feet. When
- 12 -
2021 IL App (2d) 190271questioned as to whether there was any diagnostic information showing preimpact braking by the
truck, notwithstanding the absence of any physical evidence of preimpact braking, Vanko
explained that the diagnostic information showed that the brakes were activated a half-second
before the airbags deployed. Vanko acknowledged that he could not determine the actual time of
the impact based upon his analysis of the data. He also acknowledged that he reached no
conclusion as to what defendant was doing at the time of the crash, other than driving.
¶ 41 The case proceeded to closing argument. During its closing argument, the State referred to
defendant’s failure-to-reduce-speed-to avoid-an-accident guilty plea as a basis to establish the
preliminary element of aggravated unlawful use of an electronic communication device—that
defendant was driving a motor vehicle. Following the State’s closing argument, defendant renewed
his motion to dismiss the charges on double jeopardy grounds. He argued that the failure-to-
reduce-speed charge was a lesser included offense of aggravated unlawful use of an electronic
communication device, as evidenced by the State’s reliance on the conviction to establish an
element of the offense. The trial court denied the motion.
¶ 42 E. Guilty Finding
¶ 43 Following closing argument, the trial court found defendant guilty of felony and
misdemeanor aggravated unlawful use of an electronic communication device. The trial court
noted that it “heard the testimony of witnesses over the past two days and observed the demeanor
of the witnesses as they testified on direct examination and cross examination.” The trial court
found that Daniels, Romero, Martinez, Lopez, and Helm testified credibly regarding the events of
the date of the collision. The trial court further found that Nelson, McMahon, and Vanko testified
credibly regarding their investigation and the accident reconstruction.
- 13 -
2021 IL App (2d) 190271¶ 44 The trial court reasoned that the State met its burden of proving beyond a reasonable doubt
the elements of the offenses charged: that defendant was operating a motor vehicle upon a
roadway; that defendant was using an electronic communication device (a handheld wireless
telephone), that defendant was involved in a motor vehicle accident, that the accident resulted in
Lopez’s death and Martinez’s injuries, and that defendant’s use of the electronic communication
device while driving was the proximate cause of the death and injuries. The trial court also noted
that “[t]here has been testimony regarding the actions of [defendant] following the collision.”
However, the trial court found, “the State’s evidence, without the testimony concerning the actions
of [defendant] in the minutes and hours after the collision, is sufficient to prove beyond a
reasonable doubt each of the elements which the State must prove.”
¶ 45 F. Posttrial Motion
¶ 46 Defendant timely filed a motion to reconsider on grounds that the admission of the
Snapchat videos was erroneous, that their exclusion would warrant a finding of not guilty based
upon insufficiency of the evidence, and that the prosecution for aggravated unlawful use of an
electronic communication device violated his right against double jeopardy. Defendant sought a
finding of not guilty or dismissal of the charges. On March 8, 2019, following argument, the trial
court denied the motion.
¶ 47 G. Sentencing
¶ 48 A sentencing hearing proceeded on March 8, 2019. In a combined order, defendant was
sentenced to 180 days in jail and 30 months’ probation (until September 8, 2021) on the felony
charge of aggravated unlawful use of an electronic communication device and 24 months’
probation (until March 8, 2021) on the misdemeanor charge of aggravated unlawful use of an
electronic communication device. Defendant was ordered to pay court costs and fees and $3200 in
- 14 -
2021 IL App (2d) 190271fines ($2000 for the felony conviction and $1200 for the misdemeanor conviction). He also was
ordered to perform 120 hours of community service, including 30 hours in a morgue.
¶ 49 Defendant timely appealed.
¶ 50 II. ANALYSIS
¶ 51 Defendant argues that the charges for aggravated unlawful use of an electronic
communication device were subject to compulsory joinder with the traffic citation for failure to
reduce speed to avoid an accident. He also challenges the sufficiency of the evidence to support
his convictions of aggravated unlawful use of an electronic communication device.
¶ 52 Preliminarily, however, defendant argues extensively that we have jurisdiction over the
appeal from the misdemeanor conviction, notwithstanding the omission of the misdemeanor case
number from his notice of appeal and amended notice of appeal. We already ruled on this issue.
In a January 31, 2020, order, we denied as untimely defendant’s renewed motion for leave to file
a second amended notice of appeal but found that a liberal reading of the amended notice of appeal
included an appeal from the misdemeanor conviction. We reiterate that we have jurisdiction over
the misdemeanor conviction.
¶ 53 We turn to defendant’s arguments.
¶ 54 A. Compulsory Joinder
¶ 55 Defendant argues that his separate prosecutions for failure to reduce speed to avoid an
accident and aggravated unlawful use of an electronic communication device violated the
compulsory-joinder statute. We disagree, as set forth below.
¶ 56 Section 3-3 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/3-3 (West 2016))
governs multiple prosecutions for the same act and requires the compulsory joinder of certain
offenses in a single prosecution. People v. Quigley, 183 Ill. 2d 1, 6-7 (1998). Specifically, “[w]hen
- 15 -
2021 IL App (2d) 190271the same conduct of a defendant may establish the commission of more than one offense, the
defendant may be prosecuted for each such offense.” 720 ILCS 5/3-3(a) (West 2016). However,
“[i]f the several offenses are known to the proper prosecuting officer at the time of commencing
the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single
prosecution, except as provided in Subsection (c) [(where the court may order separate trial in the
interest of justice)], if they are based on the same act.” Id. § 3-3(b). Section 3-3 “was enacted to
prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse
of the prosecutorial process.” Quigley, 183 Ill. 2d at 7.
¶ 57 In turn, section 3-4(b)(1) of the Criminal Code (720 ILCS 5/3-4(b)(1) (West 2016))
“addresses the consequences of failing to comply with compulsory joinder under section 3-3.”
Quigley, 183 Ill. 2d at 11. The statute provides, in relevant part, that a prosecution is barred if the
defendant was formerly prosecuted for a different offense if the former prosecution resulted in
either a conviction or an acquittal and the subsequent prosecution “was for an offense with which
the defendant should have been charged on the former prosecution, as provided in Section 3-3 of
this [Criminal] Code.” 720 ILCS 5/3-4(b)(1) (West 2016). Whether charges are subject to
compulsory joinder is an issue of law and thus subject to de novo review where, as here, the
relevant facts are not disputed. See People v. McGee, 2015 IL App (1st) 130367, ¶ 28.
¶ 58 Our analysis begins with the supreme court’s decision in Jackson, 118 Ill. 2d at 192,
overruled on other grounds by Stefan, 146 Ill. 2d 324. There, the defendant was the driver in a
single-car accident in which the passenger was killed. Id. at 183. The defendant was issued uniform
traffic complaint citations for driving under the influence (DUI) and illegal transportation of
alcohol. Id. The defendant pled guilty to the charges three days later. Id. Prior to sentencing,
however, the trial court granted the State’s motion to nol-pros both charges. Id. The defendant was
- 16 -
2021 IL App (2d) 190271subsequently indicted on two counts of reckless homicide. Id. Count I alleged reckless swerving
of the car resulting in striking a tree and causing the passenger’s death, and count II alleged that
the defendant’s reckless act was the DUI. Id. The trial court granted the defendant’s motion to
dismiss count II on double jeopardy grounds and ruled that the State could not use the evidence of
the DUI or illegal transportation of alcohol on the remaining count. Id. The appellate court
affirmed. Id.¶ 59 The supreme court reversed, holding that the defendant was placed in jeopardy on the DUI
and illegal-transportation-of-alcohol charges, even though the charges were nol-prossed, but that
DUI was not a lesser included offense of reckless homicide for double jeopardy purposes. Id. at
188-92. The court proceeded to address the argument that the compulsory-joinder statute barred
prosecution for the reckless homicide charges. Id. at 192-93. Rejecting the “underlying assumption
in the argument that a charge in a traffic ticket is the type of offense referred to in our compulsory-
joinder statute,” the court pronounced: “We hold today that the compulsory-joinder provisions of
section 3-3 do not apply to offenses that have been charged by the use of a uniform citation and
complaint form provided for traffic offenses.” Id. at 192. The uniform citation and complaint forms
cannot be used to charge a felony. Id. Rather, the forms “are intended to be used by a police officer
in making a charge for traffic offenses and certain misdemeanors and petty offenses.” Id. While
section 3-3 was intended to “curtail abuses of prosecutorial discretion,” the legislature did not
intend “that a driver could plead guilty to a traffic offense on a traffic ticket issued by a police
officer and thereby avoid prosecution of a serious offense brought by the State’s Attorney, such as
reckless homicide, through the use of sections 3-3 and 3-4 of the Criminal Code.” Id. at 193.
¶ 60 Similar to Jackson, the State notes, here, defendant was charged with failure to reduce
speed to avoid an accident by way of a uniform citation and complaint form. Thus, the State argues,
- 17 -
2021 IL App (2d) 190271the subsequent charges for aggravated unlawful use of an electronic communications device were
not subject to compulsory joinder. Defendant acknowledges Jackson but urges a more nuanced
analysis, arguing that this court, in People v. Thomas, 2014 IL App (2d) 130660, rejected a
mechanical application of Jackson.
¶ 61 In Thomas, the arresting officer initially charged the defendant with two traffic offenses
and one misdemeanor DUI charge pursuant to section 11-501(a)(2) of the Vehicle Code (625 ILCS
5/11-501(a)(2) (West 2010) (impairment)). Thomas, 2014 IL App (2d) 130660, ¶ 3. The State
subsequently charged the defendant, by information, with a second misdemeanor DUI pursuant to
section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11-501(a)(1) (West 2010) (blood alcohol
content of 0.08 or more)). Thomas, 2014 IL App (2d) 130660, ¶ 6. The trial court dismissed the
second DUI charge, finding that it was subject to compulsory joinder with the first DUI charge
and that the delay in bringing the charge violated the defendant’s statutory right to a speedy trial.
Id. ¶ 7.
¶ 62 On appeal, the State argued that, under Jackson, the subsequent DUI charge was not subject
to compulsory joinder, because the initial DUI charge was filed by a police officer by way of a
uniform traffic citation and complaint. Id. ¶ 16. In rejecting the State’s argument, we reasoned that
the court in Jackson was primarily concerned with the possibility that a defendant could avoid
prosecution for a later-charged felony by pleading guilty to the earlier-filed lesser offense. See id.
¶¶ 20-22 (citing People v. Kazenko, 2012 IL App (3d) 110529, ¶ 22 (Schmidt, P.J., specially
concurring) (“[w]hile a felony is not subject to compulsory joinder with a charge made by a
uniform citation” under Jackson, a misdemeanor DUI charge “may well be subject to compulsory
joinder” with an almost identical earlier-filed misdemeanor DUI charged by uniform citation)).
- 18 -
2021 IL App (2d) 190271¶ 63 We proceeded to discuss the critical distinctions between the facts in Thomas and the facts
in Jackson. Id. ¶ 21. Initially, we noted that the original misdemeanor DUI charge in Thomas was
not in fact brought by a uniform traffic citation and complaint like in Jackson. Id. ¶ 17. Rather, the
original DUI charge was brought through a verified complaint, and the State later attempted to
“add another misdemeanor charge, based on the same incident, on the eve of trial.” Id. ¶ 21. We
explained that Thomas did not involve (1) “charges brought via traffic tickets,” (2) “a defendant
pleading to traffic offenses,” or (3) “the subsequent filing of felony charges based on the same
incident.” Id. Thus, “[t]he danger that the supreme court sought to avoid in its ruling in Jackson,”
that the defendant could plead guilty to a traffic offense and avoid prosecution for a felony, “simply
[was] not present.” Id.
¶ 64 We further rejected the State’s argument that the information necessary to charge the
defendant with the second DUI (blood alcohol content of 0.08 or more) was not available to the
State at the time of the initial charge. Id. ¶¶ 23-25. Although the State did not receive the results
of a blood analysis until approximately six months after the initial charge, the record established
that the police officer learned the defendant’s blood-serum blood alcohol content from an
emergency room nurse on the night of the defendant’s arrest, calculated the defendant’s actual
level of blood alcohol to be 0.134, and included this information in his reports. Id. Accordingly,
we held that compulsory joinder applied to the charges. Id. ¶ 30.
¶ 65 We note that the Appellate Court, Third District, subsequently held, citing our analysis in
Thomas, that compulsory joinder may apply to misdemeanor charges that are initially filed by a
police officer. People v. Rogers, 2020 IL App (3d) 180088, ¶ 26, appeal allowed, No. 126163 (Ill.
Sept. 30, 2020). Neither party cites Rogers. We highlight that our supreme court allowed the
State’s petition for leave to appeal in Rogers on September 30, 2020.
- 19 -
2021 IL App (2d) 190271¶ 66 Notwithstanding Thomas and Rogers, Jackson controls our holding here. The bases upon
which Jackson was distinguished in Thomas and Rogers are simply not present in this case. First,
the traffic citation for failure to reduce speed to avoid an accident that Nelson issued to defendant
on the day of the collision was brought by a uniform citation and complaint form. Second,
defendant pled guilty to the traffic citation. Third, the subsequent charges were for both
misdemeanor and felony aggravated unlawful use of an electronic communication device in
violation of section 12-610.2(b-5) of the Vehicle Code. Specifically, the initial information
charged two counts of felony aggravated unlawful use of an electronic communication device. The
charges were superseded by indictment for a felony violation of the statute based upon Ashley’s
death, and the State filed a criminal complaint against defendant for a misdemeanor violation of
the statute based upon great bodily harm to Martinez. See 625 ILCS 5/12-610.2(e) (West 2016)
(“A person convicted of violating subsection (b-5) commits a Class A misdemeanor if the violation
resulted in great bodily harm, permanent disability, or disfigurement to another. A person
convicted of violating subsection (b-5) commits a Class 4 felony if the violation resulted in the
death of another person.”). Accordingly, the very danger present in Jackson—that defendant could
plead guilty to a traffic offense and avoid felony prosecution—persisted here.
¶ 67 Moreover, to the extent defendant maintains that the misdemeanor aggravated-unlawful-
use-of-an-electronic-communication-device charge was nonetheless subject to compulsory
joinder, the argument is unpersuasive. Compulsory joinder requires, at a minimum, knowledge of
the possibility of additional charges when the defendant is initially charged. Thomas, 2014 IL App
(2d) 130660, ¶ 24 (citing People v. Dismuke, 2013 IL App (2d) 120925, ¶ 22)); see also People v.
Luciano, 2013 IL App (2d) 110792, ¶ 78 (“for purposes of section 3-3, ‘knowledge’ or ‘known to
the proper prosecuting officer’ means the conscious awareness of evidence that is sufficient to give
- 20 -
2021 IL App (2d) 190271the State a reasonable chance to secure a conviction”). Defendant provided his cell phone to Nelson
at the hospital on the day of the collision, but that did not provide the requisite knowledge—
defendant had deleted the relevant text messages. The charging officer had neither the Cellebrite
report nor the accident reconstruction analysis at the time failure to reduce speed was charged.
Accordingly, the felony and misdemeanor aggravated-unlawful-use-of-an-electronic-
communication-device charges were not subject to compulsory joinder, because the factual basis
for the charges was not known to the proper prosecuting officer at the time failure to reduce speed
was charged by the officer. In sum, we continue to adhere to the holding in Jackson and conclude
that the charges for felony and misdemeanor aggravated unlawful use of an electronic
communication device were not subject to compulsory joinder with the uniform citation for failure
to reduce speed to avoid an accident.
¶ 68 Defendant nevertheless maintains that “Jackson does not support the State’s use of a
conviction on the original traffic charge to support the State’s later felony and misdemeanor
charges at trial.” Defendant points out that the traffic charges in Jackson were nol-prossed, whereas
here, defendant pled guilty and was sentenced on the traffic charge. According to defendant, unlike
in Jackson, the State gained an unfair advantage here by introducing his failure-to -reduce-speed-
to-avoid-an-accident conviction in the prosecution and relying on the conviction in closing
argument.
¶ 69 However, nothing in Jackson limited the holding to cases in which the initial traffic charges
were nol-prossed. Rather, the court stated in no uncertain terms: “We hold today that the
compulsory-joinder provisions of section 3-3 do not apply to offenses that have been charged by
the use of a uniform citation and complaint form provided for traffic offenses.” Jackson, 118 Ill.
2d at 192. Moreover, the State referred to the failure-to-reduce-speed-to-avoid-an-accident
- 21 -
2021 IL App (2d) 190271conviction merely as a basis to establish the preliminary element—that defendant was driving a
motor vehicle. The record demonstrates that there was no dispute that defendant was driving the
pickup truck. Accordingly, there is no basis upon which to conclude that the State gained an unfair
advantage through introduction of the conviction.
¶ 70 Defendant also maintains that Jackson did not endorse the State’s “tactic” here, which he
characterizes as “accepting a guilty plea to the traffic violation at a time when it had the evidence
it would use at trial on the subsequently filed felony and misdemeanor charges.” Defendant
analogizes this case to People v. Smith, 2017 IL App (1st) 161231. In Smith, the defendant was
charged with marijuana possession; he pled guilty and was sentenced to probation. Id. ¶ 4. Over a
year later, the defendant was charged with manufacturing counterfeit currency based upon
evidence the State obtained in connection with the search that led to the marijuana-possession
charge. Id. The appellate court affirmed the dismissal of the subsequent charge on compulsory-
joinder grounds, reasoning that to hold otherwise “would permit prosecutors to impose consecutive
sentences the court would not otherwise order, by waiting until the defendant served his sentence
on one charge before formally seeking an indictment on other charges based on information
prosecutors knew when they filed the original charges.” Id. ¶ 15.
¶ 71 Smith does not impact the application of Jackson here. Indeed, as discussed, the evidence
for aggravated unlawful use of an electronic communication device was not known to the proper
prosecuting officer when the traffic ticket was issued on the day of the collision. Defendant
provided his cell phone to Nelson on the day of the collision, but he had deleted the text messages
at issue. The record demonstrates that the Cellebrite extraction on defendant’s cell phone was
conducted the following week and that the accident reconstruction analysis was conducted over
the next several months. Accordingly, there is no basis upon which to hold that “the several
- 22 -
2021 IL App (2d) 190271offenses [were] known to the proper prosecuting officer at the time of commencing the
prosecution.” See 720 ILCS 5/3-3(b) (West 2016); Jackson, 118 Ill. 2d at 192-93.
¶ 72 Defendant’s argument effectively rewrites the relevant time period set forth in section 3-
3(b) from “at the time of commencing the prosecution” to “at the time of accepting a guilty plea
to the traffic violation.” His argument also fails to appreciate that, while the Cellebrite extraction
had been conducted before defendant pled guilty on January 25, 2017, the record demonstrates
that completion of an accident reconstruction report usually takes about six months and that, here,
McMahon received the report on June 20, 2017—several months after defendant pled guilty. In
sum, the charges for aggravated unlawful use of an electronic communication device were not
subject to compulsory joinder with the traffic citation for failure to reduce speed.
¶ 73 B. Sufficiency of the Evidence
¶ 74 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of
felony and misdemeanor aggravated unlawful use of an electronic communication device. We
disagree and hold that the State presented sufficient evidence upon which the trial court reasonably
could conclude that defendant was guilty of the offenses.
¶ 75 The State has the burden of proving beyond a reasonable doubt each element of an offense.
People v. Gray, 2017 IL 120958, ¶ 35. A reviewing court faced with a challenge to the sufficiency
of the evidence 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 crime beyond
a reasonable doubt.” (Internal quotation marks omitted.) Id. The same standard for reviewing the
sufficiency of the evidence applies to both jury trials and bench trials. People v. Howery, 178 Ill.
2d 1, 38 (1997). The reviewing court’s role is not to retry the defendant. Gray, 2017 IL 120958,
¶ 35. Rather, it is the trier of fact’s responsibility to resolve conflicts in the testimony, weigh the
- 23 -
2021 IL App (2d) 190271evidence, and draw reasonable inferences from the facts. Id. Thus, a reviewing court will not
substitute its judgment for that of the trier of fact on questions involving the weight of the evidence
or the credibility of the witnesses. Id. A criminal conviction will not be reversed unless the
evidence is “so unreasonable, improbable, or unsatisfactory” that it leaves reasonable doubt of the
defendant’s guilt. Id.¶ 76 Considering the evidence in the light most favorable to the prosecution, we conclude that
the record demonstrates sufficient evidence from which a rational trier of fact could have found
beyond a reasonable doubt the essential elements of felony and misdemeanor aggravated unlawful
use of an electronic communication device. At the time of the offenses here, section 12-610.2(b)
of the Vehicle Code provided that “[a] person may not operate a motor vehicle on a roadway while
using an electronic communication device.” 625 ILCS 5/12-610.2(b) (West 2016). The offense is
elevated to aggravated unlawful use of an electronic communication device when the defendant
“violates subsection (b) and in committing the violation he *** was involved in a motor vehicle
accident that results in great bodily harm, permanent disability, disfigurement, or death to another
and the violation was a proximate cause of the injury or death.” Id. § 12-610.2(b-5). If great bodily
harm, permanent disability, or disfigurement results from the violation, the offense is a Class A
misdemeanor, and, if death results, the offense is a Class 4 felony. Id. § 12-610.2(e).
¶ 77 Defendant argues that the State failed to present sufficient evidence that his use of an
electronic communication device caused Ashley’s death and Martinez’s injuries. “The concept of
proximate cause encompasses two separate requirements, cause in fact and legal cause,” i.e.,
foreseeability. People v. Swift, 2016 IL App (3d) 140604, ¶ 50 (citing People v. Hudson, 222 Ill.
2d 392, 401 (2006)). Defendant does not contest the general foreseeability of a collision and
resulting injuries from the use of a cell phone while driving. See id. ¶ 52 (explaining that a rational
- 24 -
2021 IL App (2d) 190271trier of fact could conclude “that when a driver takes his eyes off the road, whether to stare into a
cornfield, or to pick up sandwiches, it is foreseeable that a traffic accident might occur”). Rather,
his argument is that there was a reasonable doubt that he was in fact using his cell phone at the
time of the collision. We review the evidence regarding the timeline of events occurring before
and after the collision.
¶ 78 Martinez testified that, after she and Ashley picked up Angela from work on Boombah
Way just before 3 p.m., they proceeded to drive north on Route 47. According to Nelson, the
intersection of Route 47 and Boombah Way is “[l]ess than half a mile” from the intersection of
Route 47 and Corneils Road. Martinez testified that she used her turn signal and waited one to two
minutes as she prepared to turn left onto Corneils Road from Route 47. Angela testified that
Martinez was pointing out the Corneils Road sign before she heard the crash.
¶ 79 The Cellebrite extraction performed on defendant’s cell phone recovered a 10-message text
conversation between defendant and Daniels beginning at 2:58:15 p.m. and ending at 3:01:55 p.m.
The last text message defendant sent was at 3:01:51 p.m.; Daniels responded at 3:01:55 p.m.
¶ 80 The parties stipulated that the first 911 call came in at 3:03:18 p.m. from a caller named
Miles, who had not witnessed the crash. On the recorded call, Miles stated that he missed the crash
by “about a minute” and that there were “about 10 people” helping at the scene. In addition,
Romero, the southbound driver whose windshield was broken from the falling debris, testified that
she exited her car and proceeded toward the scene. She stated that two other people had stopped—
a man and a woman. Romero testified that “[m]aybe a minute or two minutes maximum” passed
between when the debris hit her car and when she first “heard” someone calling 911. However,
she also testified that she “saw” that the woman who had stopped was dialing 911. She did not
- 25 -
2021 IL App (2d) 190271know whether it was the man or the woman who first called 911. Nelson testified that he was
dispatched to the scene at about 3:03 p.m.
¶ 81 In weighing all of this evidence, the trial court reasonably could have concluded that the
collision occurred no later than 3:02:18 p.m.—“about a minute” before the first 911 call (and
possibly earlier, 3:01:18 p.m., if Miles’s 911 call was the 911 call to which Romero referred as
having occurred “[m]aybe a minute or two minutes maximum” after the debris hit her car). That
left, at most, a window of 27 seconds after defendant sent his last text message at 3:01:51 p.m.,
and 23 seconds after Daniels sent her last text message at 3:01:55 p.m., before the collision
occurred. During the less than 4-minute time period leading up to this window, defendant and
Daniels had exchanged 10 text messages (5 messages from defendant and 5 messages from
Daniels), averaging a message approximately every 24 seconds. Specifically, defendant’s response
time to Daniels’s text messages ranged from 10 seconds, to 19 seconds, to 32 seconds (and then 2
seconds and 20 seconds in texts from defendant without an intervening text from Daniels).
Accordingly, it was reasonable to infer that defendant continued to read Daniels’s most recent text
message in the ongoing conversation, just as he had been doing during the previous four minutes,
and that the use of his cell phone was a proximate cause of the resulting death and injuries.
¶ 82 The content of the text-message conversation further supported a reasonable inference that
defendant’s reading of Daniels’s text messages was a proximate cause of the death and injuries.
Indeed, in their intimate discussion over text, defendant told Daniels: “Write it down as soon as
possible.” A “trier of fact is not required to disregard the inferences that normally flow from the
evidence.” People v. Murphy, 2017 IL App (1st) 142092, ¶ 11.
¶ 83 Defendant, however, contends that such an inference was unreasonable, citing People v.
Casciaro, 2015 IL App (2d) 131291. There, we explained the analytical framework and underlying
- 26 -
2021 IL App (2d) 190271considerations in resolving whether an inference is reasonable. See id. ¶ 89. “An inference is a
factual conclusion that can rationally be drawn by considering other facts. [Citation.] Due process
protects a defendant against conviction except upon proof beyond a reasonable doubt of ‘every
fact necessary to constitute the crime with which the defendant is charged.’ [Citation.]” Id. An
inference satisfies due process where “(1) there is a rational connection between the basic fact and
the presumed fact; (2) the presumed fact more likely than not flows from the basic fact; and (3) the
inference is supported by corroborating evidence of guilt.” Id.
¶ 84 Distilled, defendant’s argument challenges what he posits was the “basic fact”—the precise
timing of the text-message conversation. He contends that the State was required to prove that “the
extracted data are accurate to the second and synchronized with the timing system used for the 911
call.” In support, defendant cites in his opening brief an article from the “iGeeksBlog” for the
proposition that “[a]n IPhone can have bugs that distort its functioning. Incorrect times have at
times been experienced.” In his reply brief, he cites an article purportedly by a cell phone forensic
technician discussing what defendant describes as “this timing problem.” We disregard these
articles, as they pertain to matters outside the record. The proposition for which they are cited was
never argued or presented to the trial court and lacks any evidentiary support in the record. See
Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009); People v. Boykin, 2013 IL App (1st) 112696,
¶ 9.
¶ 85 Defendant nevertheless contends that an expert witness was required to testify to the
accuracy of the text-message transcript. Defendant never raised this objection at trial or in his
posttrial motion and has therefore forfeited the argument. See People v. Enoch, 122 Ill. 2d 176,
186 (1988). Defendant also acknowledges, citing several decisions from other jurisdictions, that
“[c]ourts have held that lay witnesses such as police officers may testify about their use of the
- 27 -
2021 IL App (2d) 190271Cellebrite device to extract information from a cellular telephone.” Ultimately, defendant’s
argument is that McMahon’s qualifications to testify regarding the data extracted from defendant’s
cell phone “are questionable” because the record demonstrated that it was McMahon’s first time
utilizing Cellebrite along with Mikolasek and McMahon may not have personally performed the
extraction. Again, defendant never raised this objection at trial or in his posttrial motion and
therefore has forfeited the argument. See id. Defendant’s characterization of McMahon’s
testimony is also not complete. Defendant cites a portion of McMahon’s testimony from the
evidentiary hearing on the motion to dismiss, but McMahon testified at trial that Mikolasek
“walked me through how to use the device,” at which time “we performed the extraction on the
defendant’s cell phone” by connecting the phone to the Cellebrite device and following the
prompts. At trial, McMahon further explained his collaboration with Mikolasek on the Cellebrite
extraction: “We were sitting right next to each other while he was explaining to me how the process
is done and how you use the machine. So I was right there. I don’t recall who completed it. But
we were right there together.” Accordingly, defendant’s arguments with respect to purported
deficiencies in the data from the Cellebrite extraction report are unpersuasive.
¶ 86 Moreover, defendant’s arguments ignore that Daniels’s testimony corroborated the
accuracy of the text-message transcript extracted from defendant’s cell phone. Daniels testified
that she and defendant engaged in a text-message conversation that began shortly before 3 p.m. on
the day of the collision and lasted several minutes. As such, we cannot say that it was unreasonable
for the trial court to conclude that defendant’s use of his cell phone was a proximate cause of
Ashley’s death and Martinez’s injuries.
¶ 87 Defendant notes that the indictment, as drafted by the State, accused him of “operat[ing] a
motor vehicle while using an electronic communication device to read an electronic message.”
- 28 -
2021 IL App (2d) 190271(Emphasis added.) He then notes that McMahon testified that the Cellebrite report reflected only
that the text messages were read, not when the text messages were read. Of course, the text-
message conversation itself reflects defendant’s consistent responses to Daniels’s texts. A
reasonable inference from the nature and timing of his responses was that defendant in fact read
the text messages before responding. Defendant does not articulate any argument otherwise. That
brings us again to the last two text messages in the 10-message conversation preceding the
collision—the message defendant sent at 3:01:51 p.m. and the message Daniels sent at 3:01:55
p.m. As set forth above, this left a window of 27 seconds (if calculating from the time of
defendant’s message) or 23 seconds (if calculating from the time of Daniels’s message) before the
latest the collision could have occurred (about 60 seconds before the first 911 call). Focusing on
the 27-second time period, defendant argues that, “[t]o prove that [defendant] was sending his last
text message when the accident occurred, the State needed to prove with precision that [defendant]
sent his last text message 87 seconds before the 911 call.”
¶ 88 We point out that the State was not required to prove that defendant was sending or reading
a text message at the exact moment of the collision. Section 12-610.2(b) prohibits “operat[ing] a
motor vehicle on a roadway while using an electronic communication device.” (Emphasis added.)
625 ILCS 5/12-610.2(b) (West 2016). When in addition the use is “a proximate cause of the injury
or death,” the defendant is guilty of aggravated unlawful use of an electronic communication
device. Id. § 12-610.2(b-5).
¶ 89 The legislative history of the statute is also illustrative. The initial version of the statute
provided that “[a] person may not operate a motor vehicle on a roadway while using an electronic
communication device to compose, send, or read an electronic message.” See 625 ILCS 5/12-
610.2(b) (West 2010). As technology advanced, the statute was amended to delete “to compose,
- 29 -
2021 IL App (2d) 190271send, or read an electronic message” for the purpose of “[e]xpand[ing] the prohibition on driving
while using an electronic communication device to include uses beyond composing, sending, or
reading an electronic message.” (Emphasis added.) 98th Ill. Gen. Assem., House Bill 1247, 2013
Sess. Indeed, the current version of the statute provides that “[a] person may not operate a motor
vehicle on a roadway while using an electronic communication device, including using an
electronic communication device to watch or stream video.” Pub. Act 101-297, § 5 (eff. Jan. 1,
2020) (amending 625 ILCS 5/12-610.2(b)). Accordingly, we refocus the analysis on what the State
was required to prove—that defendant’s use of his cell phone was a proximate cause of Ashley’s
death and Martinez’s injuries. This of course would include the use of his cell phone to read
Daniels’s text messages.
¶ 90 In arguing that the State failed to meet its burden of proof, defendant likens this case to two
“texting-while-driving decisions” from other jurisdictions. See State v. Warnke, 441 P.3d 1074(Kan. Ct. App. 2019); Lee v. Croskey, Nos. 313217, 313218, 2015 WL 1814033 (Mich. Ct. App.
Apr. 21, 2015) (unpublished opinion). Initially, we note that decisions from other jurisdictions are
not binding on this court (see Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App.
3d 381, 395 (2005)), particularly where a decision is unpublished, as is Lee (see Illinois State Toll
Highway Authority v. Amoco Oil Co., 336 Ill. App. 3d 300, 317 (2003)). A close review of the
cases demonstrates that they do not offer a persuasive basis for defendant’s position in any event.
¶ 91 In Warnke, 441 P.3d at 1081, the court reasoned that a 46-second phone call that the
defendant placed on her cell phone had to have occurred after the last text message on her phone
and before the accident. Otherwise, if the accident happened while the defendant was reading the
text message, the phone call never would have occurred. Id. Since it was not unlawful to use a cell
phone to make a phone call while operating a motor vehicle, the defendant’s convictions were
- 30 -
2021 IL App (2d) 190271reversed. Id. at 1084. Warnke is inapposite. There was no evidence that defendant was on a phone
call at the time of the collision.
¶ 92 In Lee, 2015 WL 1814033, at *5, the evidence established that the defendant driver sent a
text message at 12:46 p.m. and received a text message at 12:47 p.m. The evidence also established
that the accident occurred at either 12:48 p.m. or 12:55 p.m. Id. Since the defendant could have
sent the 12:46 p.m. message well before the accident and there was no evidence that the defendant
read the 12:47 p.m. text message, the defendant driver was entitled to summary judgment on the
plaintiff’s claim that the defendant was grossly negligent in causing an accident by texting while
driving. Id.¶ 93 In contrast, here, the evidence demonstrated that defendant and Daniels were engaged in a
fluid text-messaging conversation between 2:58:15 p.m. and 3:01:55 p.m. They exchanged 10
messages in a 4-minute time period. Daniels described the text-message conversation as constant.
According to Daniels, every time she sent a text message, defendant replied. The Cellebrite
extraction report reflects defendant’s responses to the text messages. Accordingly, a reasonable
inference was that defendant’s use of his cell phone in the ongoing text-message conversation was
a proximate cause of the death and injuries in this case.
¶ 94 Defendant maintains that the inference is not supported by corroborating evidence of guilt.
Rather, defendant argues, “there is evidence that [defendant] told the police immediately after the
accident that he was looking at his clipboard when the accident occurred.” In support of this
statement, defendant cites the transcript from his guilty-plea hearing on the failure-to-reduce-speed
charge, during which the assistant state’s attorney stated, in response to the trial court’s question
as to the manner in which the accident occurred, his belief that defendant was working at the time
- 31 -
2021 IL App (2d) 190271and indicated that he was looking down at a clipboard. Defense counsel at the guilty-plea hearing
added that defendant was “just momentarily distracted” and “[l]ocked up the brakes.”
¶ 95 However, no such evidence was introduced at trial. The only mentions of the clipboard at
trial were Helm’s testimony that he removed the company clipboard from the pickup truck after
the collision and McMahon’s testimony that he told Vanko that the driver of the pickup truck may
have been using an electronic communication device or looking for a clipboard at the time of the
crash. Moreover, the expert testimony regarding the accident reconstruction analysis refutes the
suggestion that defendant was momentarily distracted at the time of the collision. To the contrary,
Vanko’s testimony demonstrated that defendant was completely disengaged from the roadway—
driving 63 to 66 miles per hour at impact with no evidence of any preimpact braking.
¶ 96 In addition, although the trial court found that the State established defendant’s guilt even
without consideration of defendant’s actions after the accident, we note that the State presented
persuasive evidence of consciousness of guilt. Although similarly not dispositive in our
determination, the evidence demonstrated that defendant deleted the incriminating text-message
exchange with Daniels from his cell phone before he provided it to the police. See People v.
Abernathy, 402 Ill. App. 3d 736, 753 (2010) (“ ‘Evidence that the accused has attempted to destroy
evidence against himself is always admissible for the purpose of showing consciousness of guilt.’ ”
(quoting People v. Spaulding, 309 Ill. 292, 306 (1923))). Also, later, on the evening of the collision,
defendant, through a “spam account,” directed Daniels not to use his name or “call, text or snap
[his] phone.” He advised that he was in “a very bad accident” that would “cause lots of legal
troubles” and instructed her not to “tell a soul.” This evidence clearly exhibited defendant’s
consciousness of guilt as to his use of his cell phone in causing the collision. Accordingly, viewing
this and all the other evidence in the light most favorable to the State, we cannot say that the
- 32 -
2021 IL App (2d) 190271evidence was so unreasonable, improbable, or unsatisfactory that it leaves a reasonable doubt of
defendant’s guilt.
¶ 97 As a final matter, defendant argues that the trial court erroneously admitted the Snapchat
videos, because the videos were irrelevant to whether he was using his cell phone at the time of
the collision. He points out that the videos were created between 9:54 a.m. and, at the latest, 2:06
p.m.—nearly one hour before the 911 call reporting the collision—and thus “in no way eliminated
the reasonable doubt undermining the State’s case.”
¶ 98 The trial court relied upon Morales, 2012 IL App (1st) 101911, in admitting the Snapchat
videos. In Morales, the defendant and several codefendants were convicted of murder and robbery
after beating the victim to death. Id. ¶ 1. The court held that evidence of the defendant’s
participation in a similar beating of a different victim at the same location three weeks earlier was
properly admitted to show that the earlier beating led to the charged beating. Id. ¶¶ 28-30. “[I]f the
prior crime is part of the ‘course of conduct’ leading up to the crime charged, then it constitutes
intrinsic evidence of the charged offense and its admissibility is not analyzed as ‘other crimes’
evidence ***.” Id. ¶ 25. In other words, there, the first beating provided an explanation for the
murder and was part of the “context” of the second beating. Id. ¶ 34.
¶ 99 Even if the videos were improperly admitted, considering the entirety of the record, any
error in their admission was harmless. As discussed, there was ample evidence from which the
trier of fact could have found that defendant’s use of his cell phone proximately caused Ashley’s
death and Martinez’s injuries in this case. This included the text-message conversation between
defendant and Daniels that was recovered from defendant’s cell phone during the Cellebrite
extraction process. The State also introduced expert testimony from Vanko that defendant’s pickup
truck was traveling at the speed of 63 to 66 miles per hour at the time of impact and that there was
- 33 -
2021 IL App (2d) 190271no evidence of preimpact braking by the truck. Accordingly, we cannot say that there is a
reasonable probability that, if the evidence had been excluded, the outcome would have been
different. See People v. Gharrett, 2016 IL App (4th) 140315, ¶ 83. Thus, any alleged error in the
admission of the videos was harmless. Considering all of the evidence in the light most favorable
to the prosecution, we conclude that a rational trier of fact could have found the essential elements
of aggravated unlawful use of an electronic communication device beyond a reasonable doubt.
¶ 100 III. CONCLUSION
¶ 101 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 102 Affirmed.
- 34 -
2021 IL App (2d) 190271No. 2-19-0271
Cite as: People v. Delhaye, 2021 IL App (2d) 190271Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 17-CF-
204; the Hon. Robert P. Pilmer, Judge, presiding.
Attorneys James T. Malysiak, of Jenner & Block LLP, of Chicago, for
for appellant.
Appellant:
Attorneys Eric C. Weis, State’s Attorney, of Yorkville (Patrick Delfino,
for Edward R. Psenicka, and Steven A. Rodgers, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
- 35 -