{ "id": 5422439, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY DEAN RHODEN, Defendant-Appellant", "name_abbreviation": "People v. Rhoden", "decision_date": "1993-12-16", "docket_number": "No. 4\u201493\u20140247", "first_page": "805", "last_page": "812", "citations": [ { "type": "official", "cite": "253 Ill. App. 3d 805" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "505 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 1004", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5388709 ], "weight": 2, "pin_cites": [ { "page": "322" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0311-01" ] }, { "cite": "544 N.E.2d 715", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "727" } ], "opinion_index": 0 }, { "cite": "129 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567120 ], "year": 1993, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0458-01" ] } ], "analysis": { "cardinality": 826, "char_count": 17637, "ocr_confidence": 0.782, "pagerank": { "raw": 1.3795066049084837e-07, "percentile": 0.6402195649244415 }, "sha256": "db78118137f3912e3319af0519a46d625de17ec4579490be5e19dd277e4f31bf", "simhash": "1:2ba020b46bc776f2", "word_count": 2957 }, "last_updated": "2023-07-14T15:28:32.530889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY DEAN RHODEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nDefendant Barry Dean Rhoden was charged with reckless homicide (Ill. Rev. Stat. 1991, ch. 38, pars. 9 \u2014 3(a), (b)) and driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11\u2014 501(a)(2)). A jury found defendant not guilty of reckless homicide but guilty of DUI. Judgment was entered and defendant appeals, arguing (1) his due process rights were violated because he was convicted on the basis of evidence of DUI at a time different from that charged; (2) the charge was insufficient; and (3) the State did not prove the corpus delicti of the offense.\nAt approximately 7 p.m. on September 17, 1992, while driving home, Champaign County State\u2019s Attorney Thomas J. Difanis was flagged down by an individual standing on the roadside. Difanis noted that standing corn had been knocked down and saw a red Chevrolet Corvette in the cornfield. As Difanis approached the vehicle, he saw defendant standing near the car and talking to a person trapped underneath it. According to Difanis, defendant appeared to be very upset, alternatively talking to the person under the car and demanding that those present help lift the car off the person. The fire department rescue vehicles and police arrived shortly thereafter. Difanis detected an odor of alcohol on defendant and expressed the opinion that defendant was intoxicated. Difanis heard defendant say, in response to a question by another person who had come to the accident scene, that he had been driving the car.\nDeputy William S. Wascher of the Champaign County sheriff\u2019s department arrived at the scene after Difanis and the rescue personnel. Wascher testified that as he approached the vehicle Difanis advised him that the driver was standing to the rear of the vehicle. Wascher noticed defendant\u2019s speech was slurred and there was a \u201cvery strong odor of alcohol on his breath.\u201d Wascher testified defendant indicated he was taking his friend home to change clothes when the accident occurred. Wascher asked defendant to take a field sobriety test. Defendant was unable to perform a walk-and-turn test, but indicated his back was hurting. Wascher then asked defendant to perform a heel-to-toe walking test and defendant failed to successfully perform it. Wascher concluded, based on the odor of alcohol, defendant\u2019s demeanor, his \u201cverbalization,\u201d and his conduct, that he was very intoxicated. Defendant was then taken to the booking area of the jail and given a breathalyzer test, which revealed his blood-alcohol content to be .21. Defendant told Wascher he had drunk \u201cprobably four\u201d beers at work.\nDefendant testified he drank four or five beers in 30 to 40 minutes at his place of employment, an automobile body shop. He and his boss, James Richard Whitton, left the auto shop at approximately 6 p.m. in defendant\u2019s Corvette with defendant driving and Whitton in the passenger seat. They went to Senator\u2019s Pub on Route 45, arriving at around 6:30 p.m. Defendant testified he had \u201cthree or so\u201d more beers and Whitton had mixed drinks. An employee of Senator\u2019s Pub, called as a witness by defendant, testified she served defendant three light beers and served Whitton two vodka and tonics, two root beer shots, and a lemon drop. In her opinion, defendant was not under the influence of alcohol and Whitton was. Defendant testified the two stayed at Senator\u2019s Pub for approximately 40 minutes, then left in defendant\u2019s Corvette with defendant driving. Defendant admitted that after leaving Senator\u2019s Pub he \u201ccould have been\u201d under the influence of alcohol. Defendant testified that as he and Whitton drove on Route 45, they decided to go to a country and western bar behind the Old Orchard Bowling Alley. They discovered the bar was now an Elks club so they did not go in.\nDefendant testified Whitton wanted to drive so defendant sat in the passenger seat while Whitton drove the car back out to the highway, heading north on Route 45. Defendant testified Whitton turned left at the first intersection which, at the time of the accident, defendant thought was Windsor Road but was actually Curtis Road. They proceeded west on Curtis Road when, according to defendant, Whit-ton said \u201clet\u2019s go fast,\u201d and then Whitton reached down to grab the gear shift. At that point, according to defendant, \u201cthe wheels locked up or something\u201d and the car skidded off the road, hit a ditch, and started flipping. Defendant testified he ended up on the ground in the cornfield and Whitton ended up trapped underneath the car. Whitton died four days later. Defendant testified that when he spoke to Wascher he was worried that Whitton was hurt and that Whitton would be in trouble because Whitton did not have a driver\u2019s license. The parties stipulated Whitton did not have a driver\u2019s license at the time of the accident.\nDefendant\u2019s investigator, Larry Adelsberger, examined the vehicle which had been secured for investigation. Adelsberger found the driver\u2019s seat as far back or almost as far back as it could be moved. Defendant testified that when he drove the car he typically had the seat all the way forward because he could not touch the pedals otherwise. Two of defendant\u2019s witnesses testified that defendant customarily drove with the seat all the way forward. Adelsberger also found the Corvette had a tilt steering wheel with six possible positions. Counting from the highest point to the lowest, the steering wheel was in the third position when Adelsberger examined it. Defendant testified that he drove with the tilt steering wheel all the way down touching his legs. Defendant testified that when he got out of the car he would release the tilt steering wheel to the top. Two of defendant\u2019s witnesses testified that defendant drove with the steering wheel all the way down, almost resting on his legs.\nDuring deliberations, the jury asked the court in a note: \u201cDoes the DUI charge only apply at moment of the accident?\u201d The court replied \u201cno\u201d to the jury\u2019s inquiry. The jury found defendant guilty of DUI and not guilty of reckless homicide. The trial court denied defendant\u2019s request for a special interrogatory asking the jury where and when defendant was DUI.\nDefendant filed timely post-trial motions, including a motion for judgment of acquittal notwithstanding the verdict, a motion in arrest of judgment, and a motion for new trial. Defendant attached to the post-trial motions an affidavit from one of the jurors. In the affidavit, which the trial court reviewed along with the post-trial motions, the juror stated that the jury acquitted defendant of reckless homicide because the State \u201chad not proven beyond a reasonable doubt\u201d that defendant was driving at the time of the accident. The juror further stated in the affidavit that based on the court\u2019s response to the jury\u2019s note asking whether the DUI charge applied only to the accident, the jury believed it could consider as part of the DUI charge defendant\u2019s testimony that he had been driving on South Neil Street (Route 45) prior to the accident. The juror concluded the guilty verdict on the DUI charge \u201crelated solely to defendant\u2019s admitted driving on South Neil Street [Route 45], and had nothing to do with defendant\u2019s alleged driving on Curtis Road west of Mattis Avenue\u201d where the accident took place. The court considered the affidavit, over the State\u2019s objection, but denied defendant\u2019s post-trial motions.\nOn appeal, the State filed a motion to strike all references in defendant\u2019s brief to the juror affidavit attached to defendant\u2019s post-trial motion. A juror may not impeach a jury\u2019s verdict by subsequently providing an affidavit or testimony which shows the motive, method, or process by which the jury reached its verdict. (People v. Boclair (1989), 129 Ill. 2d 458, 485, 544 N.E.2d 715, 727; People v. Wilson (1993), 246 Ill. App. 3d 311, 322, 615 N.E.2d 1283, 1290.) The only way to impeach a jury\u2019s verdict is to reveal physical intimidation or excluded events brought to the jury\u2019s attention without showing how these events affected the jury\u2019s reasoning. (Wilson, 246 Ill. App. 3d at 322, 615 N.E.2d at 1290.) Here the juror affidavit revealed the motive, method, and process by which the jury reached its verdict, and should not have been considered by the trial court. We grant the State\u2019s motion to strike all references in defendant\u2019s brief to the juror affidavit and do not consider the affidavit.\nDefendant contends he was denied due process because he was convicted of DUI for driving at a time and location other than that charged. A conviction upon a charge not made or a charge not tried violates fundamental principles of due process. (Jackson v. Virginia (1979), 443 U.S. 307, 314, 61 L. Ed. 2d 560, 570, 99 S. Ct. 2781, 2786; Dunn v. United States (1979), 442 U.S. 100, 106, 60 L. Ed. 2d 743, 750, 99 S. Ct. 2190, 2194.) Specifically, defendant contends he was charged with DUI at the time of the accident but was convicted of DUI on the basis of evidence showing he drove prior to the accident at a different location.\nThe statute under which defendant was charged and convicted provides:\n\u201c(a) A person shall not drive or be in actual physical control of any vehicle within this State while:\n* * *\n(2) under the influence of alcohol.\u201d (Ill. Rev. Stat. 1991, ch. 95%, par. ll-501(a)(2).)\nThe offense includes two elements: (1) a defendant must be driving a vehicle, and (2) defendant must be intoxicated while driving. (People v. Call (1988), 176 Ill. App. 3d 571, 575, 531 N.E.2d 451, 454.) Here, the DUI count charged defendant with driving under the influence of alcohol in violation of section 11 \u2014 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95V2, par. 11 \u2014 501(a)(2)) on September 17, 1992, within Champaign County. The count did not specify the road upon which defendant was driving at the time he was alleged to have committed the offense, nor did it specify that the offense was committed at the time of the accident. The State knew that defendant and his vehicle were present at the accident scene on Curtis Road. The State may not have known before trial where defendant and the vehicle were prior to the accident, specifically, whether defendant and the vehicle had been on Route 45, but the State could reasonably have inferred that defendant and the vehicle had been on other roads in Champaign County before they were on Curtis Road.\nDue process requires that an indictment or information apprise defendant of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow the pleading of the judgment as a bar to future prosecution of the same conduct. (People v. Gilmore (1976), 63 Ill. 2d 23, 28-29, 344 N.E.2d 456, 460.) The charge here did not violate defendant\u2019s due process rights. Defendant was charged with DUI in accordance with the statute and convicted upon that charge. The time and place of an offense are generally recognized as separate and distinct from the nature and elements of the offense. (People v. Daley (1977), 48 Ill. App. 3d 289, 291-92, 362 N.E.2d 1084, 1086-87 (reference to road where defendant was stopped at end of chase not a material element of charge).) A driving offense is often a continuous offense which may be committed on many different roads over a period of time. (See People v. Pena (1988), 170 Ill. App. 3d 347, 350-52, 524 N.E.2d 671, 673-75 (defendant, pursued through three different areas and three different speed zones, could not be convicted of three separate counts of speeding).) If defendant was unclear as to the location of the DUI charge, he should have asked for a bill of particulars to alleviate any confusion. Daley, 48 Ill. App. 3d at 292, 362 N.E.2d at 1087.\nAs to whether the pleading of the judgment, here, would bar re-prosecution, \u201cthe time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record.\u201d (People v. Jones (1973), 53 Ill. 2d 460, 464, 292 N.E.2d 361, 363; see also Gilmore, 63 Ill. 2d at 30, 344 N.E.2d at 461.) Resort to the record would show the specific offense upon which defendant was convicted and could be pleaded in bar of subsequent prosecution.\nDefendant claims that the DUI charge failed to state an offense. Defendant did not attack the sufficiency of the indictment before trial but did file a motion in arrest of judgment, claiming the indictment was defective for failing to specify the \u201ctime and location of the alleged offense.\u201d Section 116 \u2014 2(c) of the Code of Criminal Procedure of 1963 provides:\n\u201cA motion in arrest of judgment attacking the indictment, information, or complaint on the ground that it does not charge an offense shall be denied if the indictment, information or complaint apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution out of the same conduct.\u201d (Ill. Rev. Stat. 1991, ch. 38, par. 116 \u2014 2(c).)\nThe standard used to determine the sufficiency of an indictment, information, or complaint when raised in a motion for arrest of judgment is the same as when raised for the first time on appeal. (People v. Hughes (1992), 229 Ill. App. 3d 469, 473, 592 N.E.2d 668, 670.) This standard is the same standard as that employed upon a due process challenge to an indictment, information, or complaint. (Hughes, 229 Ill. App. 3d at 472, 592 N.E.2d at 669.) As set out above, defendant here was fully apprised that he was charged with DUI arising from a physical act of driving in Champaign County on September 17, 1992. Defendant was apprised of the precise offense charged with sufficient specificity to enable him to prepare his defense. Furthermore, resort to the record would identify the facts upon which defendant was convicted of DUI and bar a subsequent prosecution on those facts. Defendant could not be reprosecuted for driving on any of the roads mentioned in the testimony. We cannot say that the charge was insufficient.\nNext, defendant contends that the State failed to prove the corpus delicti of the DUI offense beyond a reasonable doubt. The corpus delicti is the body or substance of the crime which ordinarily includes the act and the criminal agency. (People v. Webb (1987), 153 Ill. App. 3d 1055, 1058, 506 N.E.2d 801, 803.) The corpus delicti cannot be proved by confession or admission of the defendant alone. (People v. Lambert (1984), 104 Ill. 2d 375, 378, 472 N.E.2d 427, 428.) A defendant who confesses to minder cannot be convicted of murder if there is no other evidence to show that a murder ever took place. (See People v. Dodds (1989), 190 Ill. App. 3d 1083, 1096, 547 N.E.2d 523, 533.) There must be some independent or corroborating evidence outside the confession which tends to establish that a crime occurred. If such evidence tends to prove that the offense occurred and corroborates a defendant\u2019s confession, it may be considered, together with the confession, to establish the corpus delicti of the offense. Lambert, 104 Ill. 2d at 378-79, 472 N.E.2d at 428-29; Call, 176 Ill. App. 3d at 575, 531 N.E.2d at 454.\nDefendant claims the State presented no evidence which related to any location other than at or near the accident site on Curtis Road. Initially, we note that a general verdict was returned, and the jury may have found, based on the evidence presented at trial, that defendant was driving at the time of the accident. The State had presented evidence that defendant was the owner of the car, defendant was standing next to the car after the accident, defendant was intoxicated at the time of the accident, and Whitton was pinned underneath the passenger side of the car. Moreover, defendant took pains to keep the car in good condition, making it unlikely for him to have entrusted the car to Whitton, who defendant admitted he believed was intoxicated.\nAlternatively, evidence that defendant was driving the car prior to the time of the accident was sufficient evidence to support a conviction for DUI. Independent testimony confirmed defendant\u2019s testimony that he and Whitton went to Senator\u2019s Pub and defendant consumed several beers. The jury may have drawn the reasonable inference that the owner of a car was its driver. (See Village of Lake in the Hills v. Lloyd (1992), 227 Ill. App. 3d 351, 353-54, 591 N.E.2d 524, 524; People v. Barnes (1987), 152 Ill. App. 3d 1004, 1006, 505 N.E.2d 427, 428.) Defendant\u2019s testimony that Whitton was driving the car at the time of the accident only partially refuted that inference. There was evidence other than defendant\u2019s testimony from which the jury could have concluded that the vehicle was driven by an intoxicated driver on other roads before it reached Curtis Road. All of the evidence, together with defendant\u2019s admission that he drove on Route 45 after leaving Senator\u2019s Pub, supports a finding of defendant\u2019s guilt beyond a reasonable doubt.\nFor the reasons stated, we affirm the judgment of the circuit court of Champaign County.\nAffirmed.\nMcCULLOUGH, P.J., and STEIGMANN, J., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "Glenn A. Stanko (argued), of Reno, O\u2019Byrne & Kepley, RC., of Champaign, for appellant.", "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY DEAN RHODEN, Defendant-Appellant.\nFourth District\nNo. 4\u201493\u20140247\nArgued September 14, 1993. Rehearing denied January 24, 1994.\n\u2014 Opinion filed December 16, 1993.\u2014\nGlenn A. Stanko (argued), of Reno, O\u2019Byrne & Kepley, RC., of Champaign, for appellant.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0805-01", "first_page_order": 825, "last_page_order": 832 }