Opinion
1-20-0598
03-25-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADAM GRUNIN, Defendant-Appellant.
Attorneys for Appellant: James E. Chadd, Douglas R. Hoff, and Hannah Lazar Pieterse, of State Appellate Defender's Office, of Chicago, for appellant. Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak and Marci Jacobs, Assistant State's Attorneys, of counsel), for the People.
Appeal from the Circuit Court of Cook County. No. 18 CR 12063 Honorable Joseph Michael Cataldo, Judge Presiding.
Attorneys for Appellant:
James E. Chadd, Douglas R. Hoff, and Hannah Lazar Pieterse, of State Appellate Defender's Office, of Chicago, for appellant.
Attorneys for Appellee:
Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak and Marci Jacobs, Assistant State's Attorneys, of counsel), for the People.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
OPINION
CUNNINGHAM JUSTICE.
¶ 1 Following a jury trial in the circuit court of Cook County, the defendant-appellant, Adam Grunin, was found guilty of reckless homicide (720 ILCS 5/9-3(a) (West 2018)) and two counts of aggravated reckless driving (625 ILCS 5/11-503(a)(1), (c) (West 2018)). The circuit court merged the aggravated reckless driving convictions with the reckless homicide conviction. The circuit court imposed concurrent sentences of four years' imprisonment for reckless homicide, which merged with his three-year sentence for aggravated reckless driving. On appeal, the defendant contends that the State failed to prove him guilty beyond a reasonable doubt when "unrebutted evidence" established that he suffered a focal seizure with loss of awareness prior to hitting the victims' vehicle. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND
¶ 3 On August 28, 2018, the defendant was charged with reckless homicide and aggravated reckless driving following a motor vehicle collision on July 21, 2018, which caused the death of Alyssa Lendino and injured Tony Lendino and Amanda Lendino. On January 7, 2020, a jury trial commenced. The evidence at trial established that on July 21, 2018, the defendant, who was driving a white Hyundai Sonata, was involved in two motor vehicle collisions. The first collision involved Angelica Brito's black Hyundai, and the second involved the Lendino's silver Chevrolet Equinox.
For clarity, we will refer to the members of the Lendino family by their given names.
¶ 4 Ms. Brito testified that on the afternoon of July 21, 2018, she was driving southbound in the left lane of Milwaukee Avenue in Wheeling, Illinois, with her two children in the back seat. Suddenly, another vehicle hit the rear driver's side of her black Hyundai. That same vehicle then passed her Hyundai on the driver's side "[w]ithin seconds." During cross-examination, Ms. Brito acknowledged that she did not see inside the vehicle that hit her and only saw its movements "in the direction it traveled."
¶ 5 Margaret Molitor, who was also driving southbound on Milwaukee Avenue at the same time on that day, testified that she changed lanes after seeing a white vehicle "coming fast" in her rearview mirror. The white vehicle hit a black vehicle, swerved, and then continued driving without slowing. Ms. Molitor could see that the white vehicle was being driven by a man who was looking forward with his hands on the wheel.
¶ 6 Linda Hawkins, who was traveling northbound on Milwaukee Avenue just past the intersection with Hintz Road, at the same time, testified that she saw a white vehicle approach, "swerve a little," and then "straighten out." The vehicle was traveling "very fast," and its front end was "wobbling." Ms. Hawkins watched in her side mirror, as the white vehicle passed her, and then she observed the white vehicle crash into another vehicle. The white vehicle did not decelerate nor change lanes. During cross-examination, Ms. Hawkins did not remember telling police officers that the white vehicle swerved or that the driver lacked control. However, she told officers that she did not see the white vehicle's brake lights activate prior to the collision.
¶ 7 Shaniqua Silva testified that she was in the back seat of a vehicle traveling southbound on Milwaukee Avenue when a black vehicle almost struck the back of the vehicle that she was in. As Ms. Silva looked back, the black vehicle "stall[ed] out" and hit a curb. She next saw a white vehicle "fly up" from behind, straddling the left lane and median. The driver, a "heavier set" white man with one hand on the steering wheel, looked right and then toward his rearview mirror. The vehicle was traveling approximately 100 miles per hour and smoke was coming from its front. During cross-examination, Ms. Silva acknowledged that she may have told a police officer that the driver had his right hand on the steering wheel and that he looked to his left and then to the rearview mirror.
¶ 8 Michele Lendino testified that on the afternoon of July 21, 2018, she was driving her silver Chevrolet Equinox and stopped at a red light at the intersection of Milwaukee Avenue and Hintz Road. Her husband, Tony, was in the front passenger seat, her daughter, Amanda was behind Michele, and her other daughter, Alyssa, was sitting behind Tony. Michele then heard "the most horrible sound," and her vehicle began spinning. When the vehicle stopped, she kicked open a door, exited, and screamed for help. Michelle suffered facial lacerations, and the entire family was taken to a hospital.
¶ 9 The State entered stipulations that the emergency room physician who treated Tony would testify that he suffered fractures to three areas of the lower spine and four left ribs and an injury to the spleen. The emergency room physician, who treated Amanda, would testify that she suffered fractures to the left clavicle, right tibia, pelvis, and vertebral endplate in the spine, and a laceration to the left leg. Later in the trial, an assistant medical examiner testified that Alyssa's autopsy revealed lacerations, abrasions, bruising, a fracture to the left femur, a collapsed lung, a lacerated spleen, a subdural hemorrhage, and cerebral edema and that her cause of death was multiple injuries due to a motor vehicle collision.
¶ 10 Joseph Kasper testified that on July 21, 2018, he was about to stop his delivery van at the intersection of Milwaukee Avenue and Hintz Road when he saw three vehicles colliding. He called 911 and tried to help the "mom" who exited one of the vehicles after the accident. His vehicle was equipped with a camera that filmed the accident. The video of the accident, which was admitted into evidence and published to the jury without objection, is included in the record on appeal. The video showed a white vehicle hitting a light-colored vehicle stopped at a red light, pushing the light-colored vehicle into the intersection and causing it to collide with a black truck.
¶ 11 Radoslaw Swiecicki testified that, on the same day, he was approaching the intersection of Milwaukee Avenue and Hintz Road when a white vehicle passed "extremely fast" and hit another vehicle. The white vehicle did not change lanes, decelerate, or brake but "went straight." After calling 911, Mr. Swiecicki opened the white vehicle's door, saw that the driver was "okay," and left without talking to the driver. At trial, Mr. Swiecicki identified the defendant as the driver of the white vehicle.
¶ 12 Wheeling police officer Rick Richardson testified that when he arrived at the intersection of Milwaukee Avenue and Hintz Road, he observed that the driver of the white vehicle, who was still seated in the vehicle, had a laceration over his eye and a bloody face. At trial, Officer Richardson identified the defendant as the driver of the white vehicle. Officer Richardson accompanied the defendant to a hospital in an ambulance. The defendant related his name, address, place of employment, and the date but was confused and did not remember the accident, saying, "let me guess, I fell asleep." The defendant stated he had worked from 11 p.m. to 7 a.m. the previous day and was tired. He said that his mother had told him to nap at his grandparents' house. He also stated that he had to pack for a trip to San Diego.
¶ 13 The following day, Officer Richardson obtained video footage from a liquor store on Milwaukee Avenue. The video footage was published to the jury and was included in the record on appeal. The video footage showed vehicles traveling on Milwaukee Avenue, including a white vehicle moving very fast. When the video was played for the jury, Officer Richardson identified the vehicles of the defendant and the Lendino family.
¶ 14 During cross-examination, Officer Richardson testified that, at the hospital, the defendant stated that he had epilepsy and took antiseizure medication. Tests conducted on the defendant's urine and blood were negative for "illegal substances," and no alcohol or illegal drugs were recovered from the defendant's vehicle. Prescription antiseizure medication was found inside the defendant's vehicle. Cell phone records did not indicate that the defendant was talking or texting at the time of the collision. Officer Richardson later learned that the address the defendant related in the ambulance was not current, nor was his description of his travel plans accurate. The defendant was traveling to San Francisco rather than San Diego as he stated. At the scene, Officer Richardson spoke with Ms. Silva and again in greater depth. His report indicated that she stated that the defendant looked to the left and then into the rearview mirror.
¶ 15 Wheeling police sergeant Paul Hardt testified that on September 29, 2018, he was asked to videotape a route of travel southbound on Milwaukee Avenue as part of the investigation in this case. He filmed the route on a Saturday at 2 p.m. This video was admitted into evidence and published to the jury and is included in the record on appeal. It shows a route of travel that includes a curve in the road.
¶ 16 Park Ridge police sergeant Kirk Ashleman testified that he was trained in accident collision reconstruction, had worked in the field for approximately 20 years, and previously testified as an expert in accident collision reconstruction. Sergeant Ashleman knew defense expert Roger Barrette and reviewed Mr. Barrette's report in this case.
¶ 17 When Sergeant Ashleman arrived at the accident scene, he observed two vehicles, debris in the intersection, "road scars" in the southbound Milwaukee Avenue lanes, and postcollision tire marks. Sergeant Ashleman determined that following the collision of the two vehicles, the vehicles traveled 280 to 290 feet from the point of impact to "final rest." Based on the distance traveled after impact, the impact speed was "very fast" and exceeded "highway speed." As the vehicles came to final rest, they collided with a truck and would have traveled farther without that contact. Sergeant Ashleman also received information about another crash involving the white vehicle that occurred approximately six-tenths of a mile or 3132 feet away. The configuration of the road between the two crash sites was "fairly straight," with one "slight curvature" to the southeast on Milwaukee Avenue.
¶ 18 The Lendino's Chevrolet Equinox and the defendant's Hyundai were equipped with airbag control modules (ACM) that records data before, during, and after a collision. When a vehicle is started, it runs a diagnostic check on the restraint system and data is constantly entered into the ACM. When the ACM "sense[s]" a severe collision, it will record and store that data, including five seconds of precrash data. Sergeant Ashleman used this data to determine that, five seconds before impact, the defendant's vehicle was traveling at 100.6 miles per hour, and right before the impact, it was traveling at 107.5 miles per hour. This data also indicated that the throttle of the defendant's vehicle, which opens as the accelerator is pushed, was open at 63% five seconds prior to impact, then closed slightly before opening to 74% at impact. Throttle percentage correlates to pressure on the accelerator, and this data indicated that pressure on the accelerator was eased and then increased. This fluctuation led Sergeant Ashleman to conclude that the defendant was controlling the vehicle. However, the data did not show brake usage.
¶ 19 The ACM records steering in five-degree increments, and unless the wheel is turned more than five degrees, the system records a zero reading. Here, for the five seconds prior to impact, the steering degree for the defendant's vehicle was recorded as zero. Sergeant Ashleman's review of the videos and still photographs from those videos did not show veering, although minor corrections made to maintain a straight path would comport with a zero reading. Sergeant Ashleman testified that this indicated that the defendant, as the driver, was exerting "steering input." Sergeant Ashleman also opined that the defendant had to exert control on the wheel for the vehicle to travel as it did. This resulted in the subsequent impact being "full-centered" because the defendant did not change lanes.
¶ 20 During cross-examination, Sergeant Ashleman acknowledged that, after reviewing Mr. Barrette's report, he told the State that the defendant exerted some degree of control over steering and acceleration. Sergeant Ashleman concluded that the defendant stayed in the same lane of traffic because he exerted steering control, which reflected the road's configuration and crown, as well as the vehicle's front-end alignment, the effect of the prior accident, uneven wear on the tires, and tire pressure. A fail-safe mechanism is attached to a throttle, but Sergeant Ashleman did not review any evidence pertaining to that mechanism. Although the throttle data indicated that the defendant's foot was moving back and forth, it did not indicate whether the movement was jerking or smooth. Sergeant Ashleman also performed a "time-distance" analysis to show the two vehicles' locations five seconds before the collision. In the last five seconds before impact, the defendant's vehicle traveled 764 feet and the Lendino's Equinox traveled 191 feet.
¶ 21 The State then rested. The defense presented Roger Barrette, as an expert witness. He has worked as an accident collision reconstruction specialist since 1986 and has also taught and published in the field. For this case, Mr. Barrette reviewed police records, videos, and photographs, and completed a "situationally complete reconstruction" of the collision. He also performed calculations to validate the ACM data and concluded the ACM reports were accurate. He completed time-distance and speed analyses as well. He explained that reconstructions are done to validate the reports' contents and noted that Sergeant Ashleman did not perform a speed analysis.
¶ 22 Mr. Barrette opined that a driver's foot moving back and forth, or twitching, could account for the fluctuation in throttle reflected in the defendant's Hyundai ACM report. He disagreed with Sergeant Ashleman's conclusion that the defendant maintained steering control, as it was unknown what "would cause the vehicle to stray off of its straight path." Vehicles designed in the United States have self-aligning torque, so that when a driver releases the steering wheel, the vehicle "goes straight." "[N]o evidence" indicated "intentional driver control," and there were paths in the approach to the intersection of Milwaukee Avenue and Hintz Road that the defendant could have used to avoid the collision. While Mr. Barrette agreed there was driver control during the first collision, he opined there was none in the five seconds preceding the second collision and no data indicated "intentional driver input" to avoid the collision.
Defense counsel further inquired whether the defendant's particular Hyundai had self-aligning torque. Mr. Barrette responded, "Every vehicle designed has that feature."
¶ 23 During cross-examination, Mr. Barrette testified that his reconstruction was consistent with the ACM data. He calculated the distance between the first and second accidents as 3120 feet compared to Sergeant Ashleman's 3200 feet and the time at 27 seconds as opposed to Sergeant Ashleman's 29 seconds. Mr. Barrette stated that, in his experience, around 25% of the event data recorders he examined indicated no braking in the five seconds prior to impact and "about half of the time" there was no steering input. Failure to brake could reflect driver distraction, and the maneuvering ability of a driver going 100 miles per hour was different than that of a driver going 10 miles per hour.
¶ 24 Mr. Barrette did not know whether the defendant attempted to brake or turn before the first accident or whether the defendant was distracted. On cross-examination, he acknowledged that the defendant's actions in failing to stop at the first accident, going around that vehicle, looking in the mirror, and accelerating were consistent with exerting control. Mr. Barrette had no knowledge of the defendant's degree of attention or actions inside the vehicle but stated that a vehicle could travel straight without steering input when the "net effect" of the forces affecting the vehicle did not push it off a straight path. Mr. Barrette attested that the defendant's vehicle could have traveled straight without his hands on the wheel because, after the bend in the road near the scene of the first accident, the road was straight to the location of the second collision. Additionally, the fluctuation in throttle may or may not have been caused by driver control.
¶ 25 During redirect examination, Mr. Barrette testified that there was evidence of driver control after the first collision but that hands on a steering wheel did not necessarily demonstrate control; rather, there could be unintentional control. He also testified that he had never previously reviewed a report that showed one vehicle approaching another at 100 miles per hour that did not also show braking or steering.
¶ 26 Dr. Andres Kanner, a board-certified neurologist, testified as a defense expert witness. He heads the epilepsy program at the University of Miami School of Medicine and has lectured and published in the field of epilepsy. Dr. Kanner described the human brain as a computer and epilepsy as "short circuits" in the brain. Following a seizure, a person experiences a "postictal confusional state" as the brain "reboot[s]." Seizures in the temporal lobe may result in loss of awareness, motionless staring, "purposeless" movement of the hands, and stiffness. Additional manifestations of a seizure include repeated blinking or side-to-side movement of the eyes, lack of movement in the limbs and body, tremors, twitching, and jerking, such that the person loses the ability to control his body. Dr. Kanner further explained that once a person is diagnosed with epilepsy and medicated, he may continue to have "limited short circuits" with loss of awareness. Some people remain unaware of their seizures until witnesses alert them. Medication does not prevent the seizures from occurring.
¶ 27 Dr. Kanner reviewed the defendant's medical records from his treating physicians, including those from neurologist Dr. Jessie Taber and internist Dr. Robert Maslew. He opined that the defendant's short circuits were localized in the temporal lobe of his brain, which rendered the defendant unaware of events during his seizures. Dr. Kanner also reviewed Mr. Barrette's report, witness statements, and police reports. He noted that emergency medical technicians (EMTs) found the defendant to be confused and with no recollection of the accident. The defendant's inability to describe events leading up to the accident and lack of knowledge about it were "classic" symptoms of an epileptic seizure. Although the defendant related his name in the ambulance, he was unable to give his accurate address, work schedule, or travel destination. The defendant also told paramedics that he was tired, and his medical records revealed that one of his seizure symptoms was fatigue.
Dr. Jessie Taber's first and last names are spelled various ways throughout the report of proceedings. Throughout this opinion, we will use the spelling "Dr. Jessie Taber" or "Dr. Taber."
¶ 28 Dr. Kanner noted that emergency room records indicated that the defendant had a "significant history" of epilepsy and was taking medications commonly prescribed to people with epilepsy. At the hospital, the defendant underwent a CT scan, but not an electroencephalography (EEG) test, which is used to measure electrical activity in the brain. The treating physician's notes revealed that the defendant reported a loss of consciousness and no memory of the accident, but no head pain. Dr. Kanner opined that a lack of head pain meant that the defendant was not concussed, which left a seizure as the only explanation for his confusion. Based upon the defendant's statement that he was tired, Dr. Kanner suggested that he may have had multiple seizures on the day of the accident. Although the defendant denied having recent seizures while being treated in the emergency room, Dr. Kanner believed that the defendant "probably" had more frequent seizures than he realized and that no one observed them because he lived alone and worked at night.
¶ 29 The defendant's medical records included a December 10, 2018, e-mail from the defendant to his treating neurologist stating that on December 9, 2018, his mother observed him in a "daze" or "staring spell" for 30 to 40 seconds and that he did not remember anything from that time period. In the response, the neurologist stated that it sounded as though the defendant had a seizure. Dr. Kanner noted that the defendant received a driving restriction in 2010 after a seizure but was not under a driving restriction when the accident occurred.
¶ 30 Dr. Kanner opined that the defendant followed his physicians' orders. The defendant visited Dr. Maslew's office on January 19, 2006, due to a sleep disorder and seizure, resulting in an EEG, bloodwork, and an adjustment to his antiepileptic medication. A September 10, 2010, note by Dr. Taber stated that although the defendant had an abnormal EEG in 2003, his results were normal in 2005 and 2008, and the defendant's last seizure convulsion was in early September 2010. On April 7, 2017, Dr. Taber diagnosed the defendant with "focal epilepsy with dyscognitive seizures," noted the defendant was experiencing "staring episodes," and considered adding a second antiseizure medication.
¶ 31 On June 15, 2018, following an episode of confusion, Dr. Taber increased the dosage of the defendant's medication and ordered an EEG, which showed abnormal electrical activity in the temporal lobe of the defendant's brain. Dr. Kanner interpreted this EEG to mean that the defendant was experiencing seizures. Dr. Kanner reached this conclusion even though the defendant had denied having seizures. The medical records indicated that the defendant's boss brought a staring spell to the defendant's attention. An EEG administered on July 5, 2018, was abnormal, but no driving restriction was imposed upon the defendant.
¶ 32 Dr. Kanner explained that if the defendant's foot was on the gas pedal before a seizure, it was not "unlikely" that his foot would continue to push on the pedal as the seizure began and he stared motionless. Dr. Kanner opined that the increase in speed between the first accident and the second "has to be explained" by the defendant's foot "continuously" pushing on the gas pedal and that the defendant was unaware of his "automatic behavior." Dr. Kanner also testified to the following possibilities: (1) the defendant had a seizure during the first accident; (2) the stress of the first accident triggered a seizure; or (3) the seizure began during the first accident and continued until the second accident.
¶ 33 Dr. Kanner found it significant that the defendant did not veer before the crash because, in his opinion, normal human "survival instinct" would cause a person to avoid an obvious obstacle such as a collision. As no evidence suggested that the defendant was suicidal or distracted while driving, the "only other explanation" for the defendant driving directly into the Lendino's vehicle at such a high rate of speed, was that he was unaware of his actions. Dr. Kanner concluded that, based upon the totality of the circumstances, it was his opinion, to a reasonable degree of medical certainty, that the defendant's collision with the Lendino family's vehicle was the result of a seizure and that he could not control his body.
¶ 34 During cross-examination, Dr. Kanner acknowledged that he was not the defendant's treating physician, had not conducted a clinical interview of the defendant, and was paid $15,000 for his expert consultation in the case. Nevertheless, he reiterated his opinion that the defendant suffered a focal seizure with loss of awareness after the first collision but before the second collision. Although it was difficult to establish "objectively" as to exactly when the seizure happened because no one witnessed it, Dr. Kanner believed the seizure occurred "within [the] period of time [of the accident]." Dr. Kanner could not "completely" rule out that the seizure occurred before the first crash. It was also possible that the defendant struck the first vehicle, experienced a seizure, and then maneuvered into the correct lane because he only had a partial loss of awareness or acted "reflexively." However, as the seizure progressed, the defendant would have lost "full awareness" of his surroundings.
¶ 35 Dr. Kanner testified that he was "trying to make sense" of the accident but that no one knew for sure what happened during the initial collision. He also testified that nothing suggested that the defendant did not have a seizure. During cross-examination, he agreed that speeding could be volitional when a person has "full awareness," but evidence that the defendant looked toward the rearview mirror did not establish that his conduct was volitional because a person can look around during a seizure without that action being volitional. Dr. Kanner considered the possibility that striking a vehicle, driving around it, and looking in the mirror might have meant the defendant was not having a seizure but ruled it out. Dr. Kanner opined that a person having a focal seizure that manifested through "motionless steering with a lack of movement of the wheel" could drive without swerving for 3100 feet or could veer off the road.
¶ 36 Dr. Kanner was aware that the defendant did not tell the emergency room physicians or his treating physicians that he may have had a seizure during the crash. It was not until December 2018 that the defendant told his physicians about a seizure that may have occurred the day prior to the collision. On May 8, 2019, when Dr. Taber asked the defendant about the crash, the defendant stated that he: was tired and probably should have gone to sleep rather than travel; did not think he missed his medication; and remembered turning onto Milwaukee Avenue and then being transported in an ambulance. The defendant's medical records did not state that he experienced a seizure on the day of the crash. Although Dr. Kanner did not speak with Dr. Taber, he "[absolutely" believed that the defendant had a seizure.
¶ 37 During redirect examination, Dr. Kanner further stated his belief that the defendant was not exaggerating or feigning his symptoms. He noted that from the "beginning" of the ambulance ride, the defendant was confused, disorientated, and unaware of the accident. The fact that the defendant did not remember the accident and gave incorrect answers to basic questions "made no sense." Moreover, in the past, the defendant was aware of his seizures only because others observed them.
¶ 38 During recross-examination, Dr. Kanner acknowledged that on June 15, 2018, the defendant visited Dr. Taber and reported a staring spell, and Dr. Taber treated him for a seizure. In December 2018, the defendant contacted Dr. Taber again, and Dr. Taber noted that the defendant had a seizure. Dr. Taber's notes did not state that the defendant had a seizure on July 21, 2018. During re-redirect examination, Dr. Kanner testified that the defendant only reported seizures after being told about them. That further supported his opinion that the defendant was unaware of when he had a seizure.
¶ 39 In rebuttal to Dr. Kanner's testimony that the defendant had suffered a seizure, the State presented Northbrook firefighter-paramedic Thomas Longaker, who testified that he responded to the accident and treated the defendant on July 21, 2018. The defendant was alert but confused, had a laceration over his eye, and complained of wrist pain. The defendant was not sleeping, twitching, or convulsing. Mr. Longaker rated the defendant's awareness at the time as being a three on a scale of four. The defendant was aware of his surroundings but not the events leading up to the accident. He provided his name and date of birth, but at times his speech was "confused," which Mr. Longaker said was consistent with a head injury. Nothing indicated to Mr. Longaker that the defendant had a seizure, and the defendant did not report one.
¶ 40 During cross-examination, Mr. Longaker testified that the defendant indicated that he lived in Glenview. Mr. Longaker was unaware that the defendant did not live in Glenview and had lived elsewhere for seven years prior to the accident. The defendant also stated that he was going to visit his mother on a naval base. The defendant was in and out of consciousness, which was not consistent with a seizure in Mr. Longaker's experience. Although Mr. Longaker acknowledged that he did not attend medical school, he testified that he spoke to a neurologist about seizures during his EMT/paramedic training. He also acknowledged that he was not trained to detect focal seizures and agreed that the defendant not remembering the accident could be consistent with a seizure.
¶ 41 Dr. Lindsay Jin, who treated the defendant in the emergency room on July 21, 2018, testified that the defendant was admitted to the hospital after the accident due to an elevated heartrate and dizziness. The defendant answered questions and was oriented to his identity and location, and Dr. Jin had no difficulty communicating with him. The defendant did not provide details of the accident to Dr. Jin but was not "confused in a normal conversation." The defendant reported a history of epilepsy and that his last seizure occurred at 15 years of age but did not say that he may have had a seizure that day. Dr. Jin did not observe any indication that the defendant suffered a seizure. During cross-examination, Dr. Jin acknowledged that confusion can be consistent with a seizure and that a person can have a seizure and not know it.
¶ 42 In closing argument, the State asserted that the defendant acted recklessly when he fled the first crash and looked back as he sped away at 107 miles per hour. The defense responded that the defendant did not stop at the scene of the first "fender bender" due to a seizure. In rebuttal, the State argued that a driver who lost consciousness could not drive around another vehicle, enter the "appropriate lane," avoid other vehicles, and look behind him. The State further noted that the defendant, who self-reported a "staring spell," said nothing about a possible seizure on the day of the accident.
¶ 43 On January 10, 2020, the jury found the defendant guilty of one count of reckless homicide and two counts of aggravated reckless driving. The defendant filed a motion for a new trial alleging, in relevant part, that he was not proven guilty beyond a reasonable doubt when the only "rational explanation" for the accident was a focal seizure. The trial court denied the motion, noting, in pertinent part, that the jury "clearly" did not find Dr. Kanner persuasive.
¶ 44 On March 4, 2020, following a sentencing hearing, the trial court merged the aggravated reckless driving counts into the reckless homicide count and sentenced the defendant to four years in prison. The State agreed with the court that the aggravated reckless driving counts "would merge" but posited that the court had to impose sentence on those counts. The court replied that three years was "the sentence as to those." The defendant's mittimus states that the defendant received concurrent terms of four years in prison for reckless homicide and three years for each aggravated reckless driving conviction, and, that the aggravated reckless driving convictions merged into the reckless homicide conviction. On March 30, 2020, the defendant filed a notice of appeal.
¶ 45 ANALYSIS
¶ 46 We note that we have jurisdiction to consider this matter, as the defendant filed a timely notice of appeal. See Ill. S.Ct. R. 606 (eff. July 1, 2017).
¶ 47 On appeal, the defendant contends that he was not proven guilty beyond a reasonable doubt of reckless homicide or aggravated reckless driving when unrebutted evidence established that he suffered a focal seizure with loss of awareness before striking the Lendino's vehicle. He argues that his failure to brake or veer can only be explained by a loss of awareness and, therefore, insufficient evidence established that he acted recklessly by consciously disregarding a risk.
¶ 48 When reviewing a challenge to the sufficiency of the evidence, "the question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis in original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from the facts presented at trial. Id. "In reviewing the evidence, this court will not retry the defendant, nor will we substitute our judgment for that of the trier of fact." Id. A defendant's conviction will be reversed only when the evidence is so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of his guilt. People v. Newton, 2018 IL 122958, ¶ 24.
¶ 49 To prove the defendant guilty of reckless homicide as charged the State had to show that, while driving a motor vehicle, the defendant unintentionally and without lawful justification recklessly performed acts, whether lawful or unlawful, that were likely to cause death or great bodily harm to a person, and those acts-specifically, exceeding the posted speed limit and failing to reduce speed to avoid an accident-caused Alyssa Lendino's death. 720 ILCS 5/9-3(a) (West 2018). To prove the defendant guilty of aggravated reckless driving as charged, the State had to show that the defendant drove a motor vehicle with a willful or wanton disregard for the safety of persons, which resulted in great bodily harm to Tony Lendino and Amanda Lendino. 625 ILCS 5/11-503(a)(1), (c) (West 2018).
¶ 50 A person acts recklessly "when he consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to some individual and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." (Emphasis added.) People v. Barham, 337 Ill.App.3d 1121, 1127 (2003); see also 720 ILCS 5/4-6 (West 2018). "Recklessness may be inferred from all the facts and circumstances in the record and may be established by evidence of the physical condition of the driver and his manner of operating the vehicle." Barham, 337 Ill.App.3d at 1127. "Whether the given conduct is reckless is a question of fact for the jury to decide." People v. Zator, 209 Ill.App.3d 322, 331 (1991).
¶ 51 Although evidence of excessive speed alone is insufficient to sustain a conviction for reckless homicide, excessive speed suffices when combined with other circumstances which indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others such that a reasonable person would have acted differently under the same circumstances. Barham, 337 Ill.App.3d at 1130. "[I]n finding the evidence sufficient to support a reckless homicide conviction, courts have focused on such factors as driving while intoxicated, driving at an excessive speed, disobeying traffic signals or lane markings, and fleeing the scene of the accident." People v. Eubanks, 2019 IL 123525, ¶ 78 (collecting cases). "When there is excessive speed *** in a nonemergency situation that causes the death of another person, it is unlikely there would not be other circumstances sufficient to show that the defendant consciously disregarded a substantial and unjustifiable risk" and that such disregard grossly deviated from the standard of care that would be exercised by a reasonable person in the same circumstances. (Emphasis in original.) People v. Mancinelli, 232 Ill.App.3d 211, 217 (1992).
¶ 52 Here, the evidence taken in the light most favorable to the State was sufficient to prove the defendant guilty of reckless homicide and aggravated reckless driving. Specifically, the evidence established that after colliding with Ms. Brito's vehicle, the defendant's vehicle swerved, then straightened and continued driving along Milwaukee Avenue. In the next 27 to 29 seconds, the defendant's vehicle covered approximately six-tenths of a mile at more than 100 miles per hour before colliding, in a centered impact, with the Lendino's vehicle, which was stopped at a red light. No evidence showed that the defendant's vehicle braked or veered to avoid the collision. See People v. Moreno, 116 Ill.App.3d 1, 3-4 (1983) (reckless homicide conviction affirmed where the defendant was moving "well in excess" of the speed limit, was in the wrong lane, and failed to apply his brakes at the moment of impact); see also People v. Boyle, 78 Ill.App.3d 791, 797-98 (1979) (rejecting the defendant's argument that he was not "criminally liable" for reckless driving because he only sped for the two blocks prior to the collision when his conscious disregard was "indicate[d]" by "excessive speed plus failure to keep a proper lookout"). The State's evidence showed not only that the defendant was speeding, collided with Ms. Brito's vehicle, and continued driving, but that he, thereafter, accelerated to more than 100 miles per hour and failed to reduce his speed or veer to avoid colliding with the Lendino's vehicle, which was stopped at a red light.
¶ 53 Sergeant Ashleman, the State's accident collision reconstruction expert, testified that data from the defendant's vehicle established that in the five seconds prior to impact with the Lendino's vehicle, the defendant's vehicle accelerated from 100.6 miles per hour to 107.5 miles per hour and that the throttle closed slightly before opening again. It was his opinion that the defendant controlled the vehicle immediately prior to impact. Sergeant Ashleman further opined that because the defendant's vehicle did not veer before the collision, the defendant exerted "steering input." Considering this evidence, we cannot say that no rational trier of fact could have found the defendant guilty of reckless homicide and aggravated reckless driving under these facts. McLaurin, 2020 IL 124563, ¶ 22.
¶ 54 The defense, on the other hand, presented accident collision reconstruction expert Mr. Roger Barrette and Dr. Andres Kanner, a board-certified neurologist with expertise in epilepsy, in support of its theory that the defendant was not in control of the vehicle immediately prior to the collision. Mr. Barrette testified that a driver's foot twitching or moving back and forth could explain the throttle fluctuation and that vehicles designed in the United States are designed with self-aligning torque such that when a driver releases the steering wheel, the vehicle still continues straight. Dr. Kanner testified that he believed, to a reasonable degree of medical certainty, that the defendant suffered a seizure immediately prior to the collision with the Lendino's vehicle. Dr. Kanner also opined that because normal human "survival instinct" would not permit a person to drive into another vehicle at over 100 miles per hour without trying to avoid a collision and since no evidence suggested that the defendant was suicidal, the only explanation was that the defendant was unaware of his actions during the crash because he suffered a seizure.
¶ 55 Dr. Kanner acknowledged that the defendant's medical records did not indicate he suffered a seizure on that day and that it was difficult to "objectively" establish when the seizure occurred because the defendant only became aware of his seizures when others observed them. Dr. Kanner explained that it was possible that the defendant had a seizure during the first accident, that the stress of the first accident triggered a seizure, or that the seizure began during the first accident and continued until the second collision. That is, the defendant could have been in control at the time of the first accident and able to maneuver his vehicle, if the seizure occurred after the first collision and he only suffered a partial loss of awareness or acted on reflex but lost all awareness by the time of the second collision. Dr. Kanner also testified that he could not rule out that the seizure occurred before the first crash.
¶ 56 Here, the jury was presented with two versions of the events leading to the defendant's collision with the Lendino's vehicle-either the defendant controlled the vehicle during the collision, or he did not. Considering its verdicts, the jury did not find the defendant's version of events credible. See People v. Bradford, 2016 IL 118674, ¶ 12 ("It is the responsibility of the trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts."). While the defendant provided a plausible explanation for his failure to brake or otherwise avoid the collision, specifically that he suffered a focal seizure with lack of awareness, Dr. Kanner could not definitively say when the seizure began. A trier of fact need not disregard inferences that flow normally from the evidence or seek all possible explanations consistent with innocence and raise them to the level of reasonable doubt. In re Jonathon C.B., 2011 IL 107750, ¶ 60.
¶ 57 The defendant argues that Dr. Kanner's unrebutted opinion, made with a "reasonable degree of medical certainty," that the defendant suffered a focal seizure prior to the collision is the only explanation for his failure to brake or otherwise avoid the Lendino's vehicle. He points out that Dr. Kanner found no evidence that he was suicidal and that his symptoms after the crash, including confusion, disorientation, and drowsiness, indicated an epileptic seizure. Since Dr. Kanner is an expert in epilepsy, the defendant posits that no rational trier of fact could completely disregard his opinion.
¶ 58 As discussed, the trier of fact assesses witness credibility including experts, determines the weight afforded to witness testimony, and resolves conflicts or inconsistencies in the evidence. Bradford, 2016 IL 118674, ¶ 12. When faced with conflicting versions of events, a factfinder is "entitled" to choose among them and is not obligated to accept the defendant's version. People v. Villarreal, 198 Ill.2d 209, 231 (2001). This remains true with expert opinions, and the trier of fact need not accept the opinions of a defendant's expert witnesses over those opinions presented by the State. People v. Dresher, 364 Ill.App.3d 847, 855-56 (2006); see also People v. Peterson, 171 Ill.App.3d 730, 734 (1988) ("A mere conflict in expert testimony does not create a reasonable doubt of [the] defendant's guilt."). "In situations where medical experts are called to testify, their comparative credibility and the weight to be accorded to their testimony is determined by the trier of fact." People v. Klein, 2015 IL App (3d) 130052, ¶ 101.
¶ 59 Dr. Kanner concluded that, absent evidence that the defendant was suicidal or distracted, the only explanation for the defendant's collision with the Lendino's vehicle was that he had a seizure and, therefore, could not control his body. However, Dr. Kanner acknowledged that the defendant did not self-report a seizure on the day of the accident, the defendant's medical records did not state that the defendant suffered a seizure that day, and no EEG was performed. Dr. Kanner also admitted that, although he believed the defendant suffered a seizure, he was unable to determine when the defendant's seizure began. It could have occurred prior to the collision with Ms. Brito, been triggered by the first collision, or began during the first collision and continued until the collision with the Lendino's vehicle.
¶ 60 Regarding the defendant's ability to control his body during a seizure, Dr. Kanner testified that a person experiencing a seizure is unaware of events and exhibits "automatic behavior" and that, at the commencement of a seizure, a person could exhibit partial awareness and maneuver a vehicle prior to losing full awareness of his surroundings. Accordingly, even accepting the defendant's assertion that Dr. Kanner's testimony was "unrebutted" by the State, the jury was still required to evaluate the substance of the testimony and assess the credibility of Dr. Kanner in light of the dueling expert testimony of the accident collision reconstruction experts. See Dresher, 364 Ill.App.3d at 855-56 (it is the role of the trier of fact to evaluate an expert's testimony and assess his or her credibility). Here, the jury may have found Dr. Kanner's testimony incredible. See People v. Jacobs, 2016 IL App (1st) 133881, ¶ 53 (a trier of fact is not "required to accept the defendant's version of the facts"). We cannot say that, under these facts and circumstances, such a determination is unreasonable.
¶ 61 The defendant's arguments on appeal, which mirrors those offered at trial, offer an affirmative explanation for the collision with the Lendino's vehicle, i.e.-he suffered a focal seizure with loss of awareness and was unaware of his surroundings-which the jury rejected. We decline the defendant's invitation to reweigh the evidence. See People v. Abdullah, 220 Ill.App.3d 687, 693 (1991) ("A reviewing court has neither the duty nor the privilege to substitute its judgment for that of the trier of fact.").
¶ 62 While the defendant argues in his reply brief that "every piece of evidence described by the State" was "consistent" with the defense theory that the defendant suffered a loss of awareness, the question before this court is whether any rational trier of fact could have found the elements of the offenses proven beyond a reasonable doubt. McLaurin, 2020 IL 124563, ¶ 22. Although a defense expert testified that the only explanation for the defendant's failure to avoid the Lendino's vehicle was that at some point immediately prior to the collision, the defendant suffered a focal seizure leading to a loss of awareness, the evidence nonetheless established that the defendant was speeding, kept driving after one accident, and accelerated immediately prior to hitting the Lendino's vehicle. In other words, it cannot be said that no rational trier of fact could find the defendant guilty considering the evidence presented. A conviction will be overturned only if the evidence is so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of guilt (Newton, 2018 IL 122958, ¶ 24).
¶ 63 Assuming arguendo the jury found Dr. Kanner credible, it still could have thought the defendant was reckless for driving while knowing that he had an epileptic seizure condition, which could occur at any time putting himself and others at risk of great bodily harm. See People v. Wilson, 143 Ill.2d 236, 247-49 (1991). In Wilson, 143 Ill.2d at 247-49, our supreme court analyzed whether a conviction for reckless homicide could be upheld where a defendant had a condition that caused him to fall asleep at abnormal times. The defendant in that case alleged that his sleep apnea caused him to fall asleep and, thus, made him not culpable. Id. at 244. The Illinois Supreme Court analogized a case before New York's highest court with a similar reckless homicide statute, where the defendant suffered from an epileptic seizure condition, which could occur at any time. Id. at 248. New York's highest court found the defendant's decision to drive with knowledge that a seizure could occur at any time was reckless. Id. Relying upon the New York case, our supreme court held that considering the defendant in the Wilson case was aware of his sleep apnea, which caused him to fall asleep at abnormal times, the trial court's decision was not so unreasonable or improbable so as to warrant reversal of the conviction. Id. at 249. Similarly, in this case, we cannot say that the jury acted unreasonably in convicting the defendant on the single count of reckless homicide and two counts of aggravated reckless driving, where he was aware of his seizure disorder and was previously placed on driving restrictions because of it and yet decided to drive on the day of the accident anyway.
¶ 64 While this court may have reached a different conclusion had we been the trier of fact, the resolution does not turn on what a different trier of fact may have done. Rather, as discussed, we must determine whether any rational trier of fact could have found the defendant guilty when the totality of the evidence is viewed in the light most favorable to the State. That standard does not permit this court to substitute its judgment on factual issues for that of the trier of fact. Clearly, the jury believed the State's version of the events and not those presented by the defense. We cannot say that the jury's conclusion was irrational. Therefore, we find the evidence sufficient to establish the defendant's guilt on each and every count and affirm his convictions as merged into the conviction for reckless homicide.
¶ 65 CONCLUSION
¶ 66 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 67 Affirmed.