People v. Yofon , 2023 IL App (1st) 231022-U ( 2024 )

2023 IL App (1st) 231022-USIXTH DIVISION
February 16, 2024
No. 1-23-1022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
Appeal from the
PEOPLE OF THE STATE OF ILLINOIS )
Circuit Court of
)
Cook County,
Plaintiff-Appellee, )
Criminal Division
)
v. )
No. 23 C 330101
)
JAMES YOFON, )
The Honorable
)
Joseph M. Cataldo,
Defendant-Appellant. )
Judge Presiding.
JUSTICE TAILOR delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court is affirmed. The evidence was sufficient to sustain
Yofon’s conviction for aggravated driving under the influence of alcohol. Any evidentiary
errors were harmless, and a new trial is not warranted.
¶2 I. BACKGROUND
¶3 On March 5, 2022, James Yofon was arrested and charged with aggravated driving under
the influence of alcohol in violation of 625 ILCS 5/11-501(a)(2) (West 2022). On January 31,
2023, his case was tried before a jury. The State presented two witnesses: Woodridge police officer
Ariana Radic and Illinois State Police (ISP) Trooper Stanislaw Smalec.
No. 1-23-1022
¶4 Officer Radic testified that on March 5, 2022, around 3:30 p.m., she was driving to her
mother’s house while off duty. As she drove eastbound on I-90 in Cook County, she saw a single-
vehicle crash and pulled over to help. Other motorists had already pulled over to help as well.
Officer Radic went to the driver’s side of the crashed vehicle and identified Yofon as the person
in the driver’s seat. She noticed the keys in the car’s ignition and heard the engine running. The
car was badly damaged. The air bags had deployed, and Radic could see white powder floating
around the vehicle, which made her believe she arrived not long after the air bags had deployed.
She asked Yofon if he was okay, and said that he appeared “confused” and “kind of out of it.” He
told her someone had cut him off. She and several other men then helped Yofon out of the vehicle.
Paramedics arrived approximately five minutes later, and Radic let them take over.
¶5 ISP Trooper Smalec testified next. He said that he had served with the ISP for three years,
and that he had previously worked as a Chicago Police Officer for seven years. He testified that
on March 5, 2022, when he was on duty, he received an assignment around 3:32 p.m. to respond
to a “single unit versus a wall” traffic crash. When he arrived on scene, he saw a white Kia crashed
into the concrete wall along the right side of I-90. He said the vehicle was heavily damaged. He
testified that the crash took place near the junction of I-90 and I-290. He explained that in this part
of I-90, there were six lanes of traffic: four main lanes and two lanes which lead to I-290. Lanes
five and six are the lanes farthest to the right. He explained that there is a concrete barrier dividing
lanes five and six from the four lanes to the left, and that the attenuator – the “metal piece which
kind of folds” and surrounds the concrete barrier so that the “impact is not as severe on the
occupants of the car” – was completely destroyed.
¶6 Trooper Smalec said he learned that Yofon was the driver of the white Kia at the time of
the crash. He spoke with Yofon for the first time in the presence of two paramedics inside the
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No. 1-23-1022
responding ambulance. During their conversation, Smalec asked Yofon for his driver’s license and
asked him what happened. Yofon said that he had been cut off by a box truck when he was driving
in lane four and that’s what caused him to crash. Yofon then refused medical attention and exited
the ambulance.
¶7 Trooper Smalec helped Yofon out of the ambulance because the steps were very steep.
Afterwards, Yofon went straight towards the concrete wall for support, and used the wall to assist
him as he walked. Smalec then asked Yofon to go with him to his squad car. Smalec testified that
Yofon’s eyes appeared glassy, and that he smelled a strong odor of alcoholic beverage coming
from Yofon’s breath as he spoke. Smalec explained that he did not smell the alcohol on Yofon’s
breath when they were inside the ambulance because the smell of hand sanitizer was very strong.
¶8 When they got to the squad car, Trooper Smalec told Yofon he could sit on the bumper,
but instead, Yofon placed his forearms on the hood of the car, lowered his head, and took deep
breaths. Smalec then asked Yofon if he had anything alcoholic to drink before he drove that day.
Yofon initially said he had a beer, but then said he had two drinks. When asked, Yofon could not
remember what the second drink was.
¶9 Trooper Smalec then performed a Standardized Field Sobriety Test (SFST) on Yofon. He
explained that he had been trained to conduct SFSTs, and said he had given SFSTs “[a]t least [a]
couple thousand times” before his interaction with Yofon. Smalec explained that SFSTs were
designed to show consumption and impairment in someone who had been consuming alcohol.
Smalec testified that he performed the Horizontal Gaze Nystagmus (HGN) test on Yofon, which
tests how the eyes respond to a stimulus. He used his pen as a stimulus and passed the pen in front
of Yofon’s eyes several times. During these passes, he was looking for involuntary jerking of
Yofon’s eyes. He explained that there are a total of six possible clues of impairment involved in
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No. 1-23-1022
the HGN test, and said he observed all six clues during Yofon’s HGN test. Smalec decided not to
perform any additional SFSTs on Yofon because Yofon complained that he “bent his knee” when
he crashed and that his chest hurt from the deployment of the air bag.
¶ 10 Trooper Smalec testified that he believed Yofon was under the influence of alcohol. He
based his opinion on Yofon’s glassy eyes, the strong odor of alcohol on his breath, Yofon’s
decision to lean against the concrete wall and on Smalec’s squad car for support, Yofon’s
performance on the SFST, Yofon’s statement that he had two alcoholic drinks, and his inability to
remember what the second alcoholic drink was. Smalec also based his opinion on the fact that
Yofon was involved in a single vehicle crash and the fact that Yofon said he was going to exit on
to I-290, but he was not in the correct lane to do so. Smalec explained that Yofon had been driving
in lane four, but he needed to be in lane five or six to exit. He opined that Yofon overestimated his
speed while trying to reach exit lanes five and six and then struck the attenuator without the
involvement of any other vehicle. He did not believe Yofon’s story that another car had cut him
off. Smalec arrested Yofon for driving under the influence of alcohol and transported him to the
police station. At the station, Yofon was asked to give a breath sample, but he refused.
¶ 11 On cross examination, Trooper Smalec admitted that Yofon did not slur his words or speak
with a thick tongue. He also admitted that he could not tell from the smell of alcohol on Yofon’s
breath how many drinks he had consumed or when, and that Yofon’s glassy eyes could have been
caused by things other than drinking, including particles coming from the air bag. Finally, he
admitted that Yofon did not fall, swagger, or sway when walking, but said that a person who is
under the influence of alcohol does not necessarily do any of these things.
¶ 12 Trooper Smalec testified that his interactions with Yofon were captured on the video
footage from his squad camera. The video was admitted into evidence and played for the jury.
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No. 1-23-1022
¶ 13 The defense moved for a directed verdict after the State rested its case, which the court
denied. After Yofon elected not to testify, the defense presented a single witness, paramedic
Benjamin Olson. Olson testified that he was employed as a paramedic by the Hoffman Estates Fire
Department. He said that he had held this role for more than five years, and that he previously
worked as a paramedic with the St. Charles Fire Department. On March 5, 2022, around 3:30 p.m.,
he responded to a one-vehicle crash on the highway. When he arrived, there was already a fire
engine and other responders on scene. Olson learned that Yofon had been involved in the crash
and then began his patient assessment.
¶ 14 Olson testified that he had thousands of opportunities in his personal and professional
capacities to observe someone under the influence of alcohol. During his assessment of Yofon, he
said he did not observe any behaviors that would lead him to believe that Yofon was under the
influence of alcohol. Olson said Yofon was moving kind of slowly, but testified that he could
easily communicate with Yofon. When they were in close proximity inside the ambulance, Olson
did not detect an odor of alcohol on Yofon’s breath. Olson testified that he asked Yofon if he
wanted to go to the hospital, but Yofon refused. He testified that he was wearing a mask while he
interacted with Yofon, and that their interactions lasted about fifteen minutes. Yofon was then
released from Olson’s care.
¶ 15 The jury found Yofon guilty. The court denied Yofon’s motion to reconsider. Yofon was
sentenced to twenty-four months of felony probation and was required to submit to a drug and
alcohol evaluation, attend a victim impact panel, pay mandatory fines and costs, and wear a secure
continuous remote alcohol monitor bracelet for the first six months of his probation. He was also
sentenced to serve 100 days in Cook County jail, with the understanding that the time would be
served by wearing the monitor.
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No. 1-23-1022
¶ 16 II. ANALYSIS
¶ 17 A. Sufficiency of the Evidence
¶ 18 Yofon argues that the evidence was insufficient to show that he was driving under the
influence on March 5, 2022. “[A]fter viewing the evidence in the light most favorable to the
prosecution,” we must determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” People v. Smith, 185 Ill. 2d 532, 541
(1999). We “will not substitute [our] judgment for that of the trier of fact on issues involving the
weight of the evidence or the credibility of the witnesses.” People v. Brown, 2013 IL 114196, ¶
48. It is the trial court that “remains responsible for making determinations regarding the
credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to
be drawn from the evidence.” People v. Wright, 2017 IL 119561, ¶ 70. We will reverse only if
“the evidence is so improbable or unsatisfactory that it leaves a reasonable doubt of the
defendant’s guilt.” People v. Norris, 399 Ill. App. 3d 525, 531 (2010).
¶ 19 A jury found Yofon guilty of aggravated driving under the influence of alcohol in violation
of 625 ILCS 5/11-501(a)(2) (West 2022). To be convicted of driving under the influence of
alcohol, a defendant must have been driving or had “actual physical control of a motor vehicle”
and he must have been “under the influence of alcohol.”
¶ 20 Yofon does not dispute that he was in actual physical control of the white Kia at the time
of the accident on March 5, 2022. Accordingly, the only issue here is whether there was sufficient
evidence to demonstrate that Yofon was under the influence of alcohol. “To find the defendant
guilty of driving under the influence, the prosecution must establish that the defendant was under
the influence of alcohol to a degree that renders him or her incapable of driving safely.” People v.
Morris, 2014 IL App (1st) 130512, ¶ 20. Circumstantial evidence alone may suffice to meet this
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No. 1-23-1022
burden. Id. This evidence may include testimony that a defendant’s breath smelled of alcohol or
that his eyes were glassy and bloodshot. Id. A defendant’s refusal to submit to a breath test is also
relevant as evidence of defendant’s consciousness of guilt. Id. “The testimony of a single, credible
police officer may alone sustain a conviction for driving under the influence of alcohol.” People
v. Phillips, 2015 IL App (1st) 131147, ¶ 18.
¶ 21 Relying on People v. Thomas, 34 Ill. App. 3d 578 (1975), People v. Clark, 123 Ill. App.
2d 41 (1970), and People v. Schultz, 10 Ill App. 3d 602 (1973), Yofon argues that the evidence
was insufficient to “establish that he was impaired at the time of the accident.” However, all three
cases are distinguishable due to the seriousness of the injuries sustained by the defendants, which
could have affected the officers’ opinions, and the lack of evidence of impairment. In Thomas, the
court found the evidence insufficient to support defendant’s driving under the influence conviction
because the defendant “was suffering from a head injury so severe that he required a serious
operation *** and the arresting officer based his opinion of intoxication upon symptoms which
could have been the results of the injury.” 34 Ill. App. 3d at 582. In Clark, the court found the
evidence insufficient to sustain defendant’s conviction for driving under the influence where
defendant denied drinking any alcohol, no sobriety tests were given, the only evidence of
defendant’s intoxication was an officer’s testimony that he “smelled the strong odor of alcohol on
[defendant’s] breath,” and testimony that defendant was “stumbling, swaying, [and] thick-
tongued” could have been due to injuries defendant sustained after his head crashed through the
windshield and he was knocked unconscious. 123 Ill. App. 2d at 44-45. And in Schultz, the court
found the evidence insufficient to support defendant’s conviction for driving under the influence
where defendant denied drinking alcohol, the smell of alcohol the officer noticed could be
“explained by the defendant having washed herself with alcohol” when she was working at a
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No. 1-23-1022
nursing home shortly before she interacted with the officer, there was “no evidence, independent
of the policeman’s testimony, that [defendant] had anything to drink minutes before the
accident[,]” and “[h]er swaying and staggering could have resulted from her loss of consciousness
and her head and leg injuries” sustained in the accident. 10 Ill App. 3d at 603-04.
¶ 22 Here, by contrast, when the evidence is viewed in the light most favorable to the
prosecution, we find it sufficient to support Yofon’s conviction for aggravated driving under the
influence of alcohol. First, Officer Radic testified that Yofon seemed “confused” and “kind of out
of it” when she spoke with him. Second, Yofon admitted to Trooper Smalec that he drank two
alcoholic beverages before he drove that afternoon, but he could not even remember what the
second drink was. Third, Smalec testified that Yofon’s eyes were glassy, and that he could smell
the strong odor of an alcoholic beverage coming from Yofon’s breath. Fourth, Smalec testified
that Yofon leaned on the wall and on his squad car for support. Fifth, Yofon failed the HGN test
that was administered to him. Courts have upheld convictions based on similar facts. See, e.g.,
People v. Janik, 127 Ill. 2d 390, 402 (1989) (finding the evidence sufficient to support defendant’s
conviction for driving under the influence when an officer testified that she smelled alcohol on the
defendant’s breath, he had watery eyes, he admitted that he spent the afternoon in a bar drinking,
and he performed poorly on two field sobriety tests). Additional evidence supported Yofon’s
conviction as well. Yofon crashed his car into the concrete wall on the side of the highway, and no
other vehicles were involved. Although Yofon told Officer Radic and Trooper Smalec that a truck
cut him off, Smalec did not believe him. Smalec explained that although Yofon claimed he was
preparing to exit on to I-290, he was not in the right lane to do so. In addition, Yofon refused to
take a breath test at the police station, providing evidence of his consciousness of guilt. Morris,
2014 IL App (1st) 130512, ¶ 20.
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No. 1-23-1022
¶ 23 The fact that paramedic Olson did not observe any indicia of intoxication or smell alcohol
on Yofon’s breath does not affect our conclusion. See Janik, 127 Ill. 2d at 402-03 (upholding the
defendant’s conviction for driving under the influence even though defendant’s wife’s testimony–
that she did not smell alcohol on defendant’s breath and he did not appear intoxicated to her–
contradicted the police officer’s assertions, finding that it was the jury’s duty to resolve any
conflicts in the evidence, and “the jury was apparently satisfied, based on [the police officer’s]
testimony and the other evidence, that defendant was intoxicated.”). Accordingly, the evidence
was sufficient to convict Yofon of aggravated driving under the influence of alcohol.
¶ 24 B. The Trial Court Properly Rejected Yofon’s Non-Illinois Pattern Jury Instructions
¶ 25 Yofon also argues that the trial court’s decision to reject his requested non-Illinois Pattern
Jury Instructions (non-IPIs) warrants reversal and a new trial. We review a trial court’s decision
whether to give the jury non-IPIs for an abuse of discretion. People v. Ortiz, 2017 IL App (1st)
142559, ¶ 50. An abuse of discretion occurs “where there is no IPI instruction applicable to the
subject and the jury was left to deliberate without proper instructions.” People v. Rebecca, 2012
IL App (2d) 091259, ¶ 69. “Refusal to give a non-IPI instruction does not constitute an abuse of
discretion if there is an applicable IPI instruction and/or the essence of the refused instruction is
covered by the instruction given.” Id.¶ 26 At the close of trial, the court held a jury instruction conference with the parties. All of the
proposed Illinois Pattern Jury Instructions (IPIs) were given without objection. Defense counsel
then requested two non-IPI instructions. The first stated, “The testimony of a police officer should
not be given more weight or credibility merely because the witness is a police officer. You should
judge the testimony of a police officer in the same manner you judge the testimony of any other
witness.” The State objected to this instruction, arguing that IPI 1.02 “already covers what defense
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No. 1-23-1022
counsel is trying to establish with a [non-IPI]” and already “talks about the believability of
witnesses and the weight that needs to be given to-each of them.” IPI 1.02 states, “Only you are
the judges of the believability of the witnesses and of the weight to be given to the testimony of
each of them. In considering the testimony of any witness, you may take into account his ability
and opportunity to observe, his age, his memory, his manner while testifying, any interest, bias, or
prejudice he may have, and the reasonableness of his testimony considered in the light of all the
evidence in the case.” The court declined to give Yofon’s proposed non-IPI instruction, reasoning
that “at the beginning of the jury selection” it had “asked the jurors about that and instructed them
that *** [they were] not to give more credibility” to police officers over others.
¶ 27 Defense counsel’s second requested non-IPI instruction stated, “The positive testimony of
a witness which is uncontradicted or unimpeached cannot be disregarded unless there is an inherent
probability in the witness testimony.” The State objected to this non-IPI instruction as well,
arguing that it was already covered by the other instructions. The court stated, “I don’t think this
instruction is appropriate. I think 1.02 would go to the believability of a witness. I don’t know that
the testimony [of any witness] is uncontradicted or unimpeached. So that will be denied.”
¶ 28 “The function of jury instructions is to convey to the jury the correct principles of law
applicable to the submitted evidence[.]” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 507 (2002).
“As a general rule, where an appropriate IPI instruction exists on a subject upon which the trial
court has determined the jury should be instructed, the IPI must be used.” People v. Pollock, 202
Ill. 2d 189, 212 (2002). Illinois Supreme Court Rule 451(a) states that “[w]henever Illinois Pattern
Jury Instructions, Criminal, contains an instruction applicable in a criminal case, *** [it] shall be
used, unless the court determines that it does not accurately state the law.” Ill. S. Ct. R. 451(a) (eff.
April 8, 2013). Therefore, “[a] non-IPI instruction should be used only if the IPIs for criminal cases
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No. 1-23-1022
do not contain an accurate instruction and if the tendered non-IPI instruction is accurate, simple,
brief, impartial, and free from argument.” Ortiz, 2017 IL App (1st) 142559, ¶ 50. “In reviewing
the adequacy of instructions, [we] must consider the jury instructions as a whole to determine
whether they fully and fairly cover the law.” People v. Nutall, 312 Ill. App. 3d 620, 633 (2000).
¶ 29 Yofon argues that “in the absence of [his requested non-IPIs], the jury was free to disregard
*** [the testimony of] Paramedic Olson, thereby only giving credence to the testimony of Trooper
Smalec.” However, IPI 1.02 correctly instructed the jury about the credibility of the witnesses and
the weight to be given to their testimony. Therefore, Yofon’s proposed non-IPIs–which addressed
the credibility of witnesses and the weight to be given to their testimony–were merely cumulative.
See People v. Emerson, 189 Ill. 2d 436, 505 (2000) (finding no abuse of discretion when the court
refused a nonpattern instruction where the “subject matter of defendant’s proposed instructions
was [already] covered by two pattern instructions”); People v. Burgos, 243 Ill. App. 3d 993, 1004
(1993) (finding no abuse of discretion when the trial court refused to instruct the jury that “the
testimony of the police officers should be judged in the same manner as any other witness” because
a general pattern jury instruction concerning the credibility of witnesses was given and it
“adequately addresse[d] the same issue”). Moreover, the court “asked the jurors if they would give
a police officer’s testimony more weight than any other witness [during voir dire]; and each juror
answered no.” Accordingly, we find that the jury was properly instructed and the trial court did
not abuse its discretion when it denied Yofon’s requested non-IPIs.
¶ 30 C. Any Error Related to the Trial Court’s Decision to Exclude Certain Statements was
Harmless
¶ 31 Yofon also argues that he should have been granted a new trial based on the court’s
“improper rulings on hearsay objections.” This argument is based on three objections the court
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No. 1-23-1022
sustained during paramedic Olson’s testimony. First, defense counsel asked Olson, “Did [Yofon]
relate to you any injuries he sustained at that time?” The State objected on hearsay grounds, and
the court sustained the objection. Second, defense counsel asked Olson, “Did you ever determine
what injuries, if any, [Yofon] sustained?” After Olson responded that “[Yofon] was complaining
of left shoulder pain[,]” the State objected on hearsay grounds. The court sustained the objection
and instructed the jury to “disregard anything the defendant said.” Third, defense counsel asked
Olson, “As part of your assessment in treating [Yofon], did you determine how the accident
happened; what the basis was?” Olson responded that he “asked [Yofon] a question of how it
happened.” Defense counsel followed up by asking, “What did you learn?” The State then objected
on hearsay grounds a third time. After the court sustained the objection, defense counsel asked for
a side bar. He argued that the statement was “not being offered for the truth of the matter as to how
the accident happened, but it certainly goes to the consciousness of guilt issue.” He argued that he
“should be able to get into the fact that [Yofon was] telling people what happened before there’s
any criminality.” The State responded that the hearsay was being offered for “the truth of the matter
asserted. It’s going to show that there was a car and that’s why [Yofon] swerved or got into the
accident. That’s what defense counsel is using it for.” Defense counsel alternatively argued that
“[i]t goes to mental state[,]” but the court agreed with the State, found that the statement was being
offered for the truth of the matter asserted, and sustained the State’s objection.
¶ 32 On appeal, Yofon argues that the trial court’s rulings were “highly prejudicial to Mr. Yofon
as it prevented the Jury from hearing and considering the nature and extent of Mr. Yofon’s injuries
to his head, chest, and leg, and prevented the Jury from considering those injuries while evaluating
Mr. Yofon’s conduct and acts including walking, that were recorded on video and published to the
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No. 1-23-1022
Jury.” He argues that these statements should have been admitted under the “statements for
purposes of medical treatment” and “state of mind” exceptions to the hearsay rule.
¶ 33 We review a trial court’s evidentiary rulings for an abuse of discretion. People v. Caffey,
205 Ill. 2d 52, 89 (2001). Hearsay is an out-of-court statement made by a declarant that is offered
to prove the truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). Generally, hearsay
evidence is inadmissible unless an exception applies. In re A.S., 2020 IL App (1st) 200560, ¶ 26.
One of these exceptions allows “[s]tatements made for purposes of medical treatment, or medical
diagnosis in contemplation of treatment, and describing *** past or present symptoms, pain, or
sensations” to be admitted. Ill. R. Evid. 803(4)(A) (eff. Sept. 28, 2018).
¶ 34 Here, we find that the trial court abused its discretion when it sustained the State’s
objections to defense counsel’s questions, because they fell within the scope of Rule 803(4)(A).
These questions concerned statements Yofon made about his injuries and the cause of the accident
during the course of paramedic Olson’s medical assessment, so they should have been admitted.
¶ 35 Although the trial court erroneously sustained the State’s objections, these errors were
harmless because the jury heard testimony about Yofon’s explanation for the cause of the accident
and was presented with evidence about Yofon’s injuries. Both Officer Radic and Trooper Smalec
testified that Yofon told them someone had “cut him off” and Smalec testified that Yofon told him
“that’s what caused him to crash.” In addition, the jury heard testimony about Yofon’s injuries and
viewed the videotape from Trooper Smalec’s vehicle, which depicted Yofon’s physical condition
shortly after the accident. Smalec testified that Yofon “said he bent his knee when he crashed his
vehicle and that his chest was hurt from the air bag deployment” and that he “discontinued” the
field sobriety tests “due to [Yofon] complaining of his injuries.” Paramedic Olson also stated that
Yofon “complain[ed] of his injuries.” However, Olson admitted that he “did not observe any
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No. 1-23-1022
obvious injuries” on Yofon and testified that he was “comfortable” releasing Yofon after he
refused further medical treatment. Moreover, the jury could see Yofon walking alongside Trooper
Smalec in the video and hear their conversation, which included Trooper Smalec telling Yofon he
was not going to perform any additional sobriety tests because he knew Yofon was “banged up”
in the accident. For these reasons, any errors were harmless, and reversal is not warranted.
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 38 Affirmed.
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