Opinion
No. 2-16-0593
09-29-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE KISELEV, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Lake County. No. 15-CF-311 Honorable Jay W. Ukena, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Justices Hutchinson and Burke concurred in the judgment.
ORDER
¶ 1 Held: The evidence was sufficient to allow a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of aggravated driving under the influence of alcohol. Therefore, we affirmed. ¶ 2 Defendant, Eugene Kiselev, appeals from his conviction of aggravated driving under the influence (DUI) of alcohol, contending that the evidence presented against him was insufficient to prove him guilty beyond a reasonable doubt. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On February 3, 2015, defendant was charged by information with aggravated DUI in violation of section 11-501(d)(2)(C) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(d)(2)(C) (West 2014)). Specifically, the information alleged that defendant knowingly drove a motor vehicle while under the influence of alcohol, and that he violated section 11-501(a) of the Vehicle Code on three prior occasions (625 ILCS 5/11-501(a) (West 2014)). ¶ 5 A bench trial was held on January 12, 2016. The State called Officer Hector De La Paz, who testified as follows. He had been a police officer for the Buffalo Grove police department for more than twelve years. He received initial and supplemental advanced training on alcohol impairment detection and on the administration of field sobriety testing according to National Highway Transportation Safety Administration standards, and had passed all written and practical examinations thereon. He had administered standard field sobriety tests to more than 200 motorists who were suspected of DUI. ¶ 6 Officer De La Paz was on patrol in a marked police vehicle on December 3, 2014. At approximately 1:33 p.m., he observed a black sport utility vehicle (SUV) come around a bend in the road "partially left of center" at a high rate of speed. His radar device indicated that the SUV reached 38 miles per hour, and the posted speed limit was 25 miles per hour. After the SUV passed him, he turned his vehicle around and followed it. He observed the SUV come to a stop at a red traffic light and activate its right turn signal. When the traffic light changed to green, the SUV made a wide right turn into the far lane, rather than into the first available lane. Officer De La Paz then activated his emergency lights, and the SUV pulled off the road and onto the driveway of a public works building. ¶ 7 Officer De La Paz approached the SUV and found defendant in the driver's seat. He asked defendant if he knew why he had pulled him over, and defendant appeared that he was trying to say that he did not understand what he was asking him. Officer De La Paz recognized that there was a language problem between him and defendant. He then smelled "a strong odor of alcohol coming from [defendant's] breath," and observed that defendant's eyes were red and watery. Based on those observations, he asked defendant if he was drinking, and gestured with his hand to simulate drinking something. Defendant denied having consumed alcohol, and pulled from his pocket a mint Listerine pocket-mist, and stated that that was what he smelled. The odor of alcohol coming from defendant's breath was distinct from breath spray or mouthwash; rather, it smelled like an alcoholic beverage. In his professional capacity as a police officer, he had dealt with people who were under the influence of alcohol more than 200 times, and the smell of defendant's breath was the same as those people. ¶ 8 Without objection from defendant, De La Paz then administered a series of field sobriety tests. He began with the horizontal gaze nystagmus (HGN) test while defendant remained seated in his vehicle. In his opinion, defendant exhibited four of six clues indicative of being under the influence of alcohol, which was a failing score. Specifically, both of defendant's eyes lacked smooth pursuit, and had distinct and sustained nystagmus. He did not observe any injuries to defendant's eyes. At that point, his opinion was that defendant was under the influence of alcohol. He then asked defendant to exit the vehicle, after which he administered the HGN test again, while defendant stood. Defendant failed the HGN test again, exhibiting the same four clues as the prior test. De La Paz testified that he had defendant retake the HGN test to make sure that defendant's head did not move during testing, and to capture the test on his police vehicle's dash cam. ¶ 9 Officer De La Paz then administered the one-leg-stand test. He provided defendant verbal instructions on how to perform it, and demonstrated it multiple times in order to make sure defendant understood what he needed to do. He told defendant that he could count in his own language while performing the test if that would be easier for him. Defendant attempted to perform the test multiple times but was unable to complete it. While defendant attempted to perform the one-leg-stand test, he exhibited four clues of impairment: he hopped, swayed, used his arms for balance, and put his foot down early. Two clues or more is considered failing. Other than repeatedly putting his foot down early after counting only to five or seven, it was De La Paz's opinion that defendant understood all of the instructions for the one-leg-stand test. ¶ 10 Last, Officer De La Paz moved on to the walk-and-turn test. He provided defendant verbal instructions and demonstrated how to perform it. Defendant exhibited five clues indicative of impairment, where two or more is considered failing. He stepped off the line multiple times, stopped while walking, used his arms for balance, took an improper turn, and took an incorrect number of steps. ¶ 11 Officer De La Paz asked defendant to take a preliminary breath test, but defendant refused. He then placed defendant under arrest for DUI and transported him to the Buffalo Grove police station. There, after a 20-minute observation period and being read the "Warning to Motorist" with the aid of a Russian language interpreter, defendant again refused to take a breath test. Officer De La Paz told defendant that if he wanted to refuse the breathalyzer, he needed to press the "R" key on the computer keyboard, which defendant did. Also during the interview process, defendant told De La Paz that he had recently had oral surgery that caused an infection and made his mouth smell terrible. ¶ 12 Officer De La Paz testified generally that he could smell the strong odor of an alcoholic beverage on defendant's breath for the duration of his interaction with him, including at points during each field sobriety test, during transport of defendant to the police station, and at the processing area of the police station while defendant answered routine processing questions. According to De La Paz, the odor filled the ambient air of the room that defendant was initially placed in at the police station. ¶ 13 He also testified as to the weather conditions during the traffic stop. He recalled that the dash cam video showed his pant leg flapping as the result of a gust of wind at one point, but he did not recall any gust of wind while defendant participated in field sobriety testing. It was his opinion that wind did not affect defendant's performance on any of the tests. ¶ 14 Officer De La Paz then laid the foundation for two video recordings from his vehicle's dash cam, and they were admitted without objection and played for the trial court. We have reviewed both videos and summarize them as follows. The first video shows defendant's vehicle come around a bend in the road at what appears to be a high rate of speed in the direction of the officer's vehicle. Though no roadway markings divided the lanes of traffic, it appears that defendant's vehicle drifted partially into the opposite direction lane as it made the turn. After defendant's vehicle passed, the officer turned his vehicle around and pursued it. Defendant's vehicle then made a wide right turn at an intersection, and the officer initiated a traffic stop. Defendant's vehicle pulled over on to a smooth, dry, and debris-free blacktop parking surface. The officer's vehicle pulled in directly behind the SUV, and came to a stop less than one car length from defendant's vehicle. The officer then approached the driver's side of the SUV, but the SUV obscured the officer as he spoke to defendant due to its position and the angle of the officer's dash cam. There was no audio of the officer's initial contact with the defendant, and Officer De La Paz testified that he had inadvertently left his portable microphone inside his vehicle. The video continues to show the back of defendant's SUV until the video ends. ¶ 15 The second video is a continuation of the traffic stop. During an apparent gap in the video footage, the defendant's vehicle was repositioned, in that it was pulled up so that several car lengths now separated it from the officer's vehicle. De La Paz testified that he did not know what caused the gap in the video, but stated that nothing of significance occurred during that time, other than his repositioning of defendant's SUV. In the first moments depicted on this video, De La Paz can be seen walking back to his vehicle to retrieve his microphone. As such, audio was recorded for the remainder of the traffic stop. ¶ 16 On the video, the officer administered the HGN test while defendant stood between the two vehicles, and defendant's head remained still throughout the testing. The officer then provided verbal instruction and demonstrated for defendant how to perform the one-leg-stand test. He told defendant to count to 30 while raising either of his feet six inches from the ground with a straight leg, while keeping both of his arms to his sides. The officer told defendant that he may count to 30 in Russian. The officer continued to demonstrate the test, and instructed defendant to begin. In his first attempt, defendant raised his right foot with a straight leg to the officer's count of "one," but then hopped, appeared to use his arms for balance, staggered, and then put his foot straight down. The officer again demonstrated how to perform the test, counted out loud for defendant, and stressed that defendant needed to hold that position until he counted to 30. Defendant attempted the test again, but staggered backwards, and then stated "I don't understand." The officer continued to explain and demonstrate the test for defendant. ¶ 17 Defendant attempted the test numerous more times, wherein he hopped and staggered several times. On some of those attempts, defendant appeared steady, but put his foot down early after he counted to only 5 or 7. The officer reiterated that defendant needed to count to thirty, and even counted out loud from 1 to 30 while gesturing with his fingers and hands at each integer. Defendant then said "the wind," to which the officer replied "ok, that's fine." Defendant attempted the one-leg-stand test a final time, but again counted only to 7 before putting his foot down. The officer then ended that test. ¶ 18 The officer then explained and demonstrated how to perform the walk-and-turn test. While performing the test, defendant appeared on the video to be unsteady, and he staggered several times, used his arms for balance, and stopped while walking. He also took an improper turn as well as an incorrect number of steps. ¶ 19 The officer then offered defendant a portable breath test, but defendant replied "no," and shook his head repeatedly as he waved both hands in front of him. Defendant was then arrested for driving under the influence of alcohol. ¶ 20 In closing arguments, defense counsel argued that the State failed to prove defendant guilty beyond a reasonable doubt, and made arguments largely identical to those made in this appeal. Namely, defense counsel highlighted the lack of breathalyzer testing, the language barrier between defendant and the officer, and the gap in the dash cam video that could have contained "something * * * that [the officer] didn't want the court to see, such as [the officer] being swayed by the wind." Defense counsel also stated that defendant did not look "that bad doing the [field sobriety] tests," and argued that the officer concluded defendant had failed the tests based on "a couple of eye twitches, one hop, and one sway." The trial court took the matter under advisement. ¶ 21 On February 9, 2016, defendant was found guilty of the Class 2 felony of aggravated DUI. He filed a motion to reconsider on March 9, 2016, which the trial court denied on July 12, 2016. Defendant was thereafter sentenced to a term of three years in the Illinois Department of Corrections, and this appeal followed.
In their briefs, both parties refer to the officer's last name as "La De Paz." However, he stated during his trial testimony that his last name was De La Paz, and he spelled it for the record. Accordingly, when using his last name in this disposition, we shall refer to him as De La Paz. --------
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant argues that the evidence presented at trial was insufficient for a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of DUI. When considering a challenge to the sufficiency of the evidence in a criminal case, our function is not to retry the defendant. People v. Lloyd, 2013 IL 113510, ¶ 42. Instead, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. This standard applies to both jury trials and bench trials, regardless of whether the evidence is direct or circumstantial. People v. Cooper, 194 Ill. 2d 419, 431 (2000). We will not set aside a criminal conviction unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of the defendant's guilt. Lloyd, 2013 IL 113510, ¶ 42. The trier of fact is responsible for determining the witnesses' credibility, weighing their testimony, and deciding on the reasonable inferences to be drawn from the evidence. People v. Hill, 272 Ill. App. 3d 597, 603-04 (1995). Therefore, a "reviewing court will not substitute its judgment for that of the trier of fact on issues of the weight of the evidence or the credibility of the witnesses." People v. Phelps, 211 Ill. 2d 1, 7 (2004). ¶ 24 Under section 11-501(a)(2) of the Vehicle Code, a person commits DUI if he or she drives a vehicle while under the influence of alcohol. 625 ILCS 5/11-501(a)(2) (West 2014). The burden is on the State to prove that the defendant was under the influence of alcohol to a degree that rendered him incapable of driving safely, and it may use circumstantial evidence to do so. People v. Weathersby, 383 Ill. App. 3d 226, 229 (2008). ¶ 25 In support of his argument that the evidence was insufficient that he was under the influence, defendant first points to his denial of consuming alcohol when questioned by the officer, and he notes the lack of breathalyzer evidence showing that he consumed any alcohol that day. He also takes issue with the officer's testimony that his SUV came around a bend in the road "partially left of center," noting that the roadway had no centerline. ¶ 26 With respect to the odor from his breath, defendant contends that "the record established clearly that [he] was using Listerine as the result of dental surgery to cover an infection that caused his breath to smell terribly," and notes that De La Paz was unable to identify the specific type of alcoholic beverage that he smelled. Defendant also points out that the State did not call another witness to corroborate De La Paz's testimony regarding the smell of defendant's breath. ¶ 27 Concerning the field sobriety tests, defendant suggests that his failure thereof was the result of a combination of wind gusts and a language barrier that "the [trial] court seem[ed] to minimize." He also points to a weather report that the parties stipulated to indicating that the average wind speed was nine miles per hour; a high wind speed of 17; and an occasional wind gust up to 22 miles per hour that day. Last, defendant quarrels with De La Paz's explanation for the lack of audio during the first several minutes of video footage depicting the traffic stop, as well as for the gap in the video which, according to defendant, "could have * * * [shown] wind gusts that were so strong that it [sic] knocked over [De La Paz]." These assertions, according to defendant, amount to a "boat load of evidence * * * that there was clearly reasonable doubt all over the record." ¶ 28 Defendant's arguments are nothing more than a request of this court to reweigh the evidence presented at trial, which we decline to do. Though defendant suggests that Officer De La Paz's observations were caused by things other than defendant's intoxication, the trial court was not obligated to accept these explanations over the officer's testimony. Indeed, each alternative explanation defendant offered in his brief was rebutted by De La Paz, whose testimony the trial court plainly found credible. It was for the trial court, as the trier of fact, to determine the credibility of the witness, to weigh the evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. See People v. McDonald, 168 Ill. 2d 420, 448-49 (1995). ¶ 29 As outlined above, Officer De La Paz testified that defendant's eyes were red and watery, and that defendant's breath had a strong odor of an alcoholic beverage. Though defendant claimed that he was using mint Listerine breath spray, De La Paz testified that defendant's breath did not smell like mint or Listerine, but rather smelled distinctly like an alcoholic beverage, the odor of which "remained strong" throughout the duration of his interaction with defendant. Also, while De La Paz acknowledged that defendant told him that he recently had dental work, he denied that defendant told him he was constantly using Listerine because of a mouth infection that had developed following an oral surgery. Thus, defendant's assertion that "the record established clearly" that he was using Listerine to treat a mouth infection is unfounded. Also, the testimony of a second police officer to corroborate De La Paz's account of defendant's breath was not needed, as the testimony of a single, credible police officer alone may sustain a conviction for DUI. See People v. Eagletail, 2014 IL App (1st) 130252, ¶ 38; People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 24. Further, defendant refused two requests to submit to a breathalyzer test, which may be considered as circumstantial evidence of defendant's consciousness of guilt. People v. Johnson, 218 Ill. 2d 125, 140 (2005). ¶ 30 Concerning the field sobriety tests, it is clear from the report of proceedings that the trial court carefully considered defendant's arguments that his failure thereof was the result of sudden wind gusts or a language barrier between defendant and the officer. Specifically, the trial court indicated that it reviewed the dash cam video and found that the wind had "little to no effect" on defendant's performance during any of the field sobriety tests—noting that the trees in the background of the video were still. We have reviewed the video and agree that wind did not appear to affect defendant's performance of any field sobriety test. ¶ 31 In announcing its ruling, the trial court was also clearly mindful of defendant's language barrier argument, noting that it re-watched the video of the field sobriety tests "simply to see if [defendant] had any balance issues." It noted that defendant "hopped, * * * lost his balance, [and] almost fell backwards" during the one-leg-stand test. He also "seemed to almost stagger" in a "brief loss of balance." The trial court commented that, during the walk-and-turn test, defendant used his hands for balance, appeared unsteady, and stepped off the line. We agree with the trial court's characterization thereof. Finally, the trial court commented that defendant clearly understood the directions of the HGN test because he followed all of the officer's instructions, yet he still failed the test. ¶ 32 We also note that defendant identified in his briefs only one clue specifically that he contends was the result of a language barrier—putting his foot down early during the one-leg-stand test. Even if this clue was the result of a language barrier, defendant exhibited three other clues during this test, which would still be considered failing. Moreover, defendant answered all of the officer's questions during the traffic stop, denied consuming alcohol, and discussed using a Listerine spray—all in English. He also complied with the officer's requests, such as when he was asked for his driver's license, or when he was instructed turn around and put his hands behind his back when he was placed under arrest. ¶ 33 Viewing the totality of the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendant was under the influence of alcohol when he operated a motor vehicle on December 3, 2014.
¶ 34 III. CONCLUSION
¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Lake County. ¶ 36 Affirmed.