People v. Carbajal ( 2021 )

2021 IL App (1st) 190044-UNo. 1-19-0044
Order filed February 5, 2021
Sixth Division
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
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
) Nos. 17 MC4 3211
) YE 377762
v. ) YE 377763
) YE 377764
) YE 609983
)
MARVIN CARBAJAL, ) Honorable
) Kristyna C. Ryan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court.
Presiding Justice Mikva and Justice Harris concurred in the judgment.
ORDER
¶1 Held: Sufficient evidence supports defendant’s convictions for failing to reduce speed to
avoid an accident, driving without insurance, driving under the influence of alcohol
(DUI), and DUI with a blood alcohol concentration equal to or greater than 0.08.
Under the one-act, one-crime doctrine, we remand to the trial court to determine
which of defendant’s two DUI offenses is less serious and vacate the conviction on
that offense.
No. 1-19-0044
¶2 Following a bench trial, defendant Marvin Carbajal was found guilty of carrying a
concealed weapon while under the influence of alcohol (430 ILCS 66/70(d) (West 2016)) (count
I), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a) (West 2016)) (count II),
driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2016)) (count III),
operating a motor vehicle without insurance (625 ILCS 5/3-707 (West 2016)) (count IV), and DUI
with a blood alcohol concentration equal to or greater than 0.08 (625 ILCS 5/11-501(a)(1) (West
2016)) (count V). The trial court sentenced defendant to concurrent terms of 18 months’
supervision on counts I, III, and V, and supervision on counts II and IV. Defendant argues on
appeal that the State failed to prove he drove or had actual control of a vehicle, and therefore, he
was not proven guilty beyond a reasonable doubt on counts II through V. Defendant further argues
that his convictions on counts III and V violate the one-act, one-crime doctrine. Defendant does
not challenge his conviction on count I. We remand to the trial court to determine which of counts
III and V should be vacated, and otherwise affirm.
¶3 Defendant was charged by misdemeanor complaint with count I and by citation with counts
II-V.
¶4 Before trial, the court granted the State’s motion in limine to take judicial notice of the
conversion factor for converting a blood serum alcohol concentration to a whole blood alcohol
concentration, and that a blood serum alcohol concentration of 290 milligrams per deciliter is
equivalent to a whole blood alcohol concentration of 0.245.
¶5 At trial, Maywood police officer Wozniczka 1 testified that, around 10:30 p.m. on May 29,
2017, he was dispatched to the intersection of First Avenue and Bataan Drive to assist the fire
1
Officer Wozniczka’s first name is not in the report of proceedings.
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No. 1-19-0044
department. Wozniczka arrived 5 to 10 minutes later. An ambulance and accident response team
were on the scene, where a BMW vehicle had crashed into a tree in a ditch. Skid marks on the
street led into the ditch.
¶6 Defendant, whom Wozniczka identified in court, was the only civilian present. A member
of the fire department told Wozniczka that defendant was armed and provided Wozniczka with
defendant’s Firearm Owners Identification (FOID) card and concealed carry license (CCL).
Wozniczka approached defendant, who allowed Wozniczka to recover a firearm from his
waistband. Wozniczka requested defendant’s driver’s license and proof of insurance. Defendant
provided his driver’s license and stated he did not have insurance. Copies of defendant’s FOID
card, CCL, and driver’s license were admitted into evidence.
¶7 Defendant was placed in an ambulance. Wozniczka asked defendant what happened and
defendant “stated he was involved in the accident” and that he “had been drinking.” Wozniczka
smelled alcohol on defendant’s breath and person. Defendant “was very confused” as to what was
happening and why he was in the ambulance. Defendant was taken to the emergency room.
Wozniczka completed a report and, after the vehicle was towed, followed to the emergency room.
No other civilian arrived after defendant left.
¶8 At the hospital, security staff and a sheriff’s deputy gave Wozniczka firearm magazines
found on defendant’s person. Wozniczka approached defendant, who was cursing at the nurses.
Wozniczka asked defendant why he was doing that and defendant did not answer.
¶9 After defendant returned from a CAT scan, Wozniczka read him a “Warning to Motorist”
and observed him for 20 minutes. During that time, defendant was “belligerent” toward the nurses,
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No. 1-19-0044
stated he did not need or want treatment, and attempted to remove a C-brace nurses had put on his
neck.
¶ 10 After 20 minutes, Wozniczka offered defendant the opportunity to submit to blood or urine
testing, and defendant refused. Defendant’s speech was slurred, he remained confused, and
Wozniczka could still smell alcohol on his person. Defendant had bruising on his face and his eyes
were bloodshot. Wozniczka arrested defendant for DUI, advised him of his rights under Miranda
v. Arizona, 384 U.S. 436 (1966), and served him a summary suspension notice. Wozniczka arrested
defendant based on the accident, defendant’s alcohol odor, bloodshot eyes, admission that he had
been drinking, and the lack of a sample showing defendant was not intoxicated. Defendant never
indicated to Wozniczka that he had not been driving the crashed vehicle.
¶ 11 On cross-examination, Wozniczka testified that he was at the police station at 10:46 p.m.
when he was dispatched to the scene of the accident, which was about one mile or less away. The
fire department was dispatched first. When Wozniczka arrived, a fireman was speaking to
defendant about 10 to 15 feet from the vehicle. Wozniczka did not see the accident, know when it
occurred, or know firsthand whether defendant drove the vehicle. When asked if he knew whether
the accident could have happened at 7 or 8 p.m., Wozniczka stated that the accident would have
been reported sooner if it had happened earlier. Wozniczka explained that Bataan has high traffic
due to its proximity to Interstate 290, First has high traffic as “a major thoroughfare,” and the ditch
where the vehicle crashed was visible. However, the only dispatch Wozniczka received was from
the fire department.
¶ 12 Defendant told the firemen he was armed, and they relayed that information to Wozniczka.
Defendant’s FOID card and CCL were valid. At the scene of the accident, defendant was
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No. 1-19-0044
cooperative and did not refuse treatment. Wozniczka did not know if other civilians were present
before he arrived or after he left the scene, or if anyone besides defendant was in the vehicle when
it crashed. Wozniczka did not request defendant perform field sobriety tests because Wozniczka
was unsure of the extent of defendant’s injuries. Wozniczka did not recall if defendant was
bleeding and did not know what treatment, if any, defendant received in the ambulance. Wozniczka
did not ask when or what defendant drank, or know whether he drank before or after the accident.
¶ 13 Wozniczka was not trained in accident reconstruction, but assumed that the skid marks on
the road came from the crashed BMW. He did not know how fast the BMW was traveling when it
crashed. Wozniczka assumed that defendant was the driver and drove under the influence, but did
not know for certain.
¶ 14 On redirect examination, Wozniczka testified that the accident was visible from the road
and he saw it as he approached the scene. The firearm he recovered from defendant was functional
and loaded, with a bullet in the chamber. Wozniczka did not hear anyone mention that other people
were at the scene or involved in the accident. Defendant did not tell Wozniczka that someone else
was driving. Defendant became combative at the hospital when security staff questioned him about
the magazines they discovered on his person.
¶ 15 On recross examination, Wozniczka confirmed that defendant slurred his speech, which
Wozniczka knew because he spoke to defendant later, after he sobered during the I-bond process.
¶ 16 Laura King testified that she was working as a nurse at Loyola University Medical Center
on May 29, 2017. Between 11 and 11:30 p.m., defendant arrived by ambulance. Defendant was
uncooperative with hospital staff while they attempted to assess and treat him, continually
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No. 1-19-0044
attempted to remove his C-collar, failed to follow directions, and used obscenities. He smelled of
alcohol, his speech was slurred, and he was bruised.
¶ 17 Because defendant was involved in an accident, a doctor requested King draw a blood
sample that was sent to a lab in the hospital. The results were included in the medical records King
and the staff used to assess and treat defendant. Defendant’s alcohol blood serum level was 290.
Based on defendant’s blood serum level and her training as a nurse, King concluded that defendant
was drunk. King identified People’s Exhibit No. 2 as defendant’s lab results showing his alcohol
blood serum level as 290.
¶ 18 On cross-examination, King testified that she reviewed a report by the paramedics showing
they did not administer defendant any medication. King did not know which lab technician
processed defendant’s blood work. Patients are not allowed to leave the hospital without a driver
if their blood serum level is 80 or above.
¶ 19 During redirect examination, King testified that, when patients are uncooperative, hospital
staff rely on paramedic reports to learn what happened to the patient. The paramedics give the
report via radio and then provide a paper report when they arrive. King identified People’s Exhibit
No. 3 as the paramedic report for defendant. Over defense counsel’s objection, the trial court
permitted King to testify about the report’s content to explain “what she relied on” in treating
defendant. King testified that the report relayed that defendant was placed in a C-collar, knew his
name, date of birth, and location, and stated that he was driving, lost control, and hit a tree. The
report further detailed that defendant wore a seat belt and travelled about 30 miles per hour, the air
bags deployed, he remained conscious, and he complained of back pain.
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¶ 20 On recross examination, King stated she did not see the accident and did not know who
was driving the vehicle. She relied on the paramedic’s report and did not know whether the
paramedics saw the accident. The paramedic who prepared the report told King that defendant
stated he was driving. She did not know when the accident occurred, when defendant started and
stopped drinking, what he drank, or how many drinks he consumed.
¶ 21 Following closing arguments, the trial court stated it would not consider People’s Exhibit
No. 3, the paramedic report. The court believed that when Wozniczka approached defendant at the
scene of the accident, defendant would have been capable of stating he was not driving had that
been the case, and found that Wozniczka’s assumptions about the accident were reasonable. Given
the amount of traffic in the area of the accident, the court believed it unreasonable that the accident
could have occurred hours before Wozniczka arrived. The court found defendant guilty on all
counts.
¶ 22 Defendant filed a motion to reconsider, again arguing in relevant part that the State did not
prove he drove the crashed BMW. The court denied the motion.
¶ 23 Following a hearing, the court imposed concurrent terms of 18 months’ supervision on
counts I, III, and V, and supervision on counts II and IV. 2
2
The electronic docket reflects supervision of 18 months on count I and 18 months and 1 day on
counts II, IV, and V, and does not reflect a sentence on count III. Moreover, the half-sheet, sentencing
order, and electronic docket all list December 18, 2019, as the termination date for supervision. However,
when a court’s oral pronouncement conflicts with the written order, the oral pronouncement controls.
People v. Carlisle, 2015 IL App (1st) 13114, ¶ 87. Defendant does not challenge any aspect of his sentence
on appeal.
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No. 1-19-0044
¶ 24 Defendant appeals, first arguing that the evidence is insufficient to sustain his convictions
on counts II through V because the State did not prove beyond a reasonable doubt that he drove or
had actual control of the crashed vehicle.
¶ 25 When considering challenges to the sufficiency of the evidence, a reviewing court
determines whether, viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could find the essential elements of the offense beyond a reasonable doubt.
People v. Jackson, 2020 IL 124112, ¶ 64. The reviewing court will not overturn the conviction
unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt. Id. The trier of fact is charged with resolving conflicts in the testimony, weighing
the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Id. Therefore,
the reviewing court will not retry the defendant or substitute its judgment for the trier of fact’s
when considering the weight of the evidence or the credibility of witnesses. Id.¶ 26 The same standard applies whether the evidence is direct or circumstantial, and
circumstantial evidence, if it meets the standard, may sustain a conviction. Id. ¶ 70.
“Circumstantial evidence is proof of certain facts and circumstances from which the fact finder
may infer other connected facts which usually and reasonably follow from the human experience
and is not limited to facts that may reasonably have alternative, innocent explanations.” People v.
Diaz, 377 Ill. App. 3d 339, 345 (2007). A trier of fact need not find beyond a reasonable doubt
each fact in a chain of circumstances so long as all the evidence, taken together, satisfies the trier
of fact of the defendant’s guilt beyond a reasonable doubt. Jackson, 2020 IL 124112, ¶ 70. Nor
must a trier of fact disregard inferences flowing normally from the evidence, or elevate “all
possible explanations consistent with innocence” to the level of reasonable doubt. Id.-8-
No. 1-19-0044
¶ 27 The Illinois Vehicle Code (Code) prohibits a person from driving or being in actual
physical control of a vehicle with a blood alcohol level of 0.08 or more or while under the influence
of alcohol. 625 ILCS 5/11-501(a)(1), (2) (West 2016). The Code further mandates reducing speed
to avoid an accident (625 ILCS 5/11-601(a) (West 2016)), and prohibits operating a vehicle
without insurance (625 ILCS 5/3-707 (West 2016)). The only element of the offenses that
defendant challenges is whether he drove or had actual control over a vehicle.
¶ 28 Courts consider four factors to determine whether a defendant had actual physical control
of a vehicle. Those factors include “whether the defendant: (1) possessed the ignition key; (2) had
the physical capability to operate the vehicle; (3) was sitting in the driver’s seat; and (4) was alone
with the doors locked.” People v. Morris, 2014 IL App (1st) 130512, ¶ 17. However, the factors
are guidelines and not an exhaustive list; the issue is determined on a case-by-case basis, and the
absence of a factor is not controlling. Id. (citing People v. Slinkard, 362 Ill. App. 3d 855, 859
(2006)).
¶ 29 Moreover, where evidence shows that a person operated a vehicle, it is axiomatic that he
had physical control over it. See People v. Niemiro, 256 Ill. App. 3d 904, 909 (1993) (“[I]f a person
is shown to be operating a vehicle, that person is also, by the very nature of operating that vehicle,
exerting actual physical control over the vehicle.”).Thus, in Niemiro, where a vehicle was observed
colliding with other vehicles, it was “obvious” that “someone was driving or operating the vehicle
and, by that action, exercising actual physical control over its movement.” (Emphasis in original.)
Id. at 905, 909-10. The issue, therefore, was “whether there was sufficient evidence for the court
to have found that it was [defendant] who was operating the vehicle at the time of the accident.”
Id. at 910; see also Slinkard, 362 Ill. App. 3d at 859-60 (citing Niemiro to note that factors are not
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conclusive, including where there is “inference that the defendant must have driven the car
earlier”).
¶ 30 At trial, Wozniczka testified that he responded to the scene of the accident and saw one
vehicle crashed into a tree in a ditch, with skid marks leading from the road to the ditch. Defendant
was 10 to 15 feet from the crashed vehicle and the only civilian present. Defendant’s face was
bruised. At Wozniczka’s request, defendant provided his driver’s license and stated he did not
have insurance. Defendant told Wozniczka he was “involved” in the accident and had been
drinking. Defendant never stated that anyone else was involved in the accident, and Wozniczka
never heard mention of any other person involved in the accident. Viewed in the light most
favorable to the State, that evidence is not so improbable or unsatisfactory as to raise a reasonable
doubt that defendant drove the vehicle. See Jackson, 2020 IL 124112, ¶¶ 64, 70; see also Diaz,
377 Ill. App. 3d at 345 (“[A] trial court may find a conviction for driving under the influence of
alcohol based on circumstantial evidence.”).
¶ 31 While no one saw defendant drive the vehicle, “observation of the defendant in the act of
driving is not an indispensable prerequisite for a conviction for driving under the influence and the
act may be established by other evidence, direct or circumstantial.” Niemiro, 256 Ill. App. 3d at
910. Here, that evidence included Wozniczka’s testimony that defendant was the only civilian on
the scene of a one-car accident where skid marks led from the road to a crashed vehicle, admitted
he was involved in the accident, and never mentioned anyone else. Further, although the State did
not establish the exact time the accident occurred, the trial court reasonably rejected defendant’s
argument that the accident could have happened hours earlier because the crashed vehicle was
visible from a busy street and defendant admitted his involvement with the accident. See Jackson,
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2020 IL 124112, ¶ 70 (“[T]he trier of fact is not required to disregard inferences that flow normally
from the evidence before it, nor need it search out all possible explanations consistent with
innocence and raise them to a level of reasonable doubt.”).
¶ 32 Lastly, while ownership of a vehicle may give rise to an inference that a defendant was
driving (see Slinkard, 362 Ill. App. 3d at 858), and as defendant observes, the State did not prove
defendant owned the BMW, the trial court was charged with weighing the evidence, and we will
not overturn defendant’s conviction where the circumstantial evidence presented is not so
unsatisfactory as to raise a reasonable doubt of defendant’s guilt. See Jackson, 2020 IL 124112,
¶ 64. Accordingly, we conclude that the State proved beyond a reasonable doubt that defendant
drove the vehicle, and sufficient evidence therefore exists to sustain his convictions.
¶ 33 Next, defendant argues that his convictions for DUI (count III) and DUI with a blood
alcohol content of 0.08 or above (count V) violate the one-act, one-crime rule because they are
based on the same physical act, driving. Defendant requests we vacate his conviction on count V.
The State agrees that defendant’s convictions violate the one-act, one-crime rule but argues that
we should remand to the trial court to determine which conviction should be vacated.
¶ 34 As defendant admits, he did not properly preserve this issue below. However, defendant
requests plain-error review.
¶ 35 The plain error doctrine allows a reviewing court to consider an unpreserved error when a
clear or obvious error occurred and (1) “the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error,” or (2) “that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
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(Internal quotation marks omitted.) People v. Coats, 2018 IL 121926, ¶ 9. Violations of the one-
act, one-crime doctrine implicate the second prong of plain-error. Id. ¶ 10. The first consideration
is whether an error occurred. Id. ¶ 11.
¶ 36 Under the one-act, one-crime doctrine, a defendant may not be convicted of multiple
offenses based on the same physical act. People v. Grant, 2017 IL App (1st) 142956, ¶ 32. If a
violation of the rule occurs, the conviction on the less serious offense should be vacated. Id. ¶ 33.
In determining which offense is less serious, the reviewing court considers the possible
punishments and culpable mental state of each offense. Id. When a reviewing court cannot
determine which of two or more convictions based on a single act is less serious, it will remand to
the trial court for that determination. People v. Artis, 232 Ill. 2d 156, 177 (2009).
¶ 37 Defendant’s convictions on counts III and V were based on the physical act of driving. See
625 ILCS 5/11-501(a)(1), (2) (West 2016); see also People v. Hamerlinck, 2018 IL App (1st)
152759, ¶ 3 (aggravated DUI convictions violate rule since they are based on same physical act of
driving). Accordingly, they violate the one-act, one-crime rule, and the less serious conviction
should be vacated. Grant, 2017 IL App (1st) 142956, ¶ 33.
¶ 38 Neither offense requires a particular mental state. 625 ILCS 5/11-501(a)(1), (2) (West
2016); see also Bohner v. Ace American Insurance Co., 359 Ill. App. 3d 621, 625 (2005) (noting
that aggravated DUI is “an offense that does not require proof of any particular mental state”).
Defendant’s charges also carry the same possible penalties. See 625 ILCS 5/11-501(c)(1) (West
2016). Accordingly, we are unable to determine which of defendant’s offenses are less serious.
¶ 39 Nevertheless, defendant argues that we should vacate his conviction on count V, relying
on People v. Kizer, 365 Ill. App. 3d 949 (2006) and People v. Cook, 2011 IL App (4th) 090875.
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In Kizer, the defendant was convicted of DUI and DUI with a blood alcohol content of 0.08 or
greater, and the reviewing court vacated the latter conviction under the one-act, one-crime
doctrine. Kizer, 365 Ill. App. 3d at 951, 962. In Cook, the defendant was convicted of aggravated
DUI, aggravated DUI with a blood alcohol content of 0.08 or greater, and aggravated DUI under
the combined influence of alcohol and other drugs, and the reviewing court vacated the latter two
convictions. Cook, 2011 IL App (4th) 090875, ¶¶ 34-36. Neither court explained its departure from
the principle set forth in Artis that, when two offenses require proof of the same culpable mental
state and have the same potential punishments, the reviewing court cannot determine which
offense is less serious and should remand to the lower court to make that determination. See Artis,
232 Ill. 2d at 177.
¶ 40 More recently, this court decided Grant, 2017 IL App (1st) 142956, in which we relied on
Artis to remand where a defendant was convicted of two offenses requiring the same mental state
and carrying the same potential punishments. See Grant, 2017 IL App (1st) 142956, ¶ 33.
Accordingly, we will adhere to Artis and remand to the trial court to determine whether count III
or V is the less serious offense and should be vacated. See Artis, 232 Ill. 2d at 177 (“the better
course is to continue to adhere to the principle that when it cannot be determined which of two or
more convictions based on a single physical act is the more serious offense, the cause will be
remanded to the trial court for that determination”).
¶ 41 For the foregoing reasons, we remand to the circuit court of Cook County to determine
which of counts III and V is less serious and vacate the conviction on that offense, and otherwise
affirm.
¶ 42 Affirmed in part and remanded in part.
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