{ "id": 4022071, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN M. CANTLIN, Defendant-Appellant", "name_abbreviation": "People v. Cantlin", "decision_date": "2004-06-04", "docket_number": "No. 2-03-0668", "first_page": "998", "last_page": "1004", "citations": [ { "type": "official", "cite": "348 Ill. App. 3d 998" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "200 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462440 ], "year": 1990, "pin_cites": [ { "page": "282", "parenthetical": "refusal to take breath test is evidence of consciousness of guilt" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0268-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "127 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562211 ], "year": 1984, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0784-01" ] }, { "cite": "170 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585688 ], "year": 1988, "pin_cites": [ { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0907-01" ] }, { "cite": "405 Ill. 533", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627146 ], "year": 1950, "pin_cites": [ { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/ill/405/0533-01" ] }, { "cite": "174 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223610 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "153" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0133-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186-88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "488 U.S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495598 ], "weight": 12, "year": 1988, "pin_cites": [ { "page": "57" }, { "page": "289" }, { "page": "337" }, { "page": "58" }, { "page": "289" }, { "page": "337" }, { "page": "58" }, { "page": "289" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/us/488/0051-01" ] }, { "cite": "166 Ill. 2d 310", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198912 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "315" }, { "page": "314-15" }, { "page": "315" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0310-01" ] }, { "cite": "51 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391261 ], "year": 1972, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0514-01" ] }, { "cite": "35 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379341 ], "year": 1966, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0520-01" ] }, { "cite": "120 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593009 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "128" }, { "page": "128", "parenthetical": "evidence that the defendant was weaving out of his lane was relevant to show that he was driving under the influence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0123-01" ] }, { "cite": "279 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75246 ], "year": 1996, "pin_cites": [ { "page": "159-60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0152-01" ] }, { "cite": "253 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5422439 ], "year": 1993, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0805-01" ] }, { "cite": "168 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307262 ], "year": 1995, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0001-01" ] }, { "cite": "155 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810080 ], "year": 1993, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0422-01" ] }, { "cite": "204 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609702 ], "year": 2003, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0159-01" ] }, { "cite": "182 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864525 ], "year": 1998, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0193-01" ] } ], "analysis": { "cardinality": 731, "char_count": 14465, "ocr_confidence": 0.741, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3782286148729134 }, "sha256": "223799a72ac3702ae85f5cadd50c609a3b6c8944e3cc1c9a6bc21c6aa76b99b0", "simhash": "1:cfa0d126e74b6171", "word_count": 2362 }, "last_updated": "2023-07-14T22:23:16.717830+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. STEVEN M. CANTLIN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Steven M. Cantlin, was convicted of driving under the influence of alcohol (625 ILCS 5/11 \u2014 501(a)(2) (West 2002)). Defendant appeals, contending that (1) the trial court improperly allowed the State to introduce evidence of an open bottle of vodka found in defendant\u2019s car; (2) he was deprived of due process because the State destroyed the bottle before trial; and (3) he was not proved guilty beyond a reasonable doubt because the arresting officer testified, not from his personal recollection, but solely from reading his report. We affirm.\nThe evidence at trial revealed the following. State Trooper Brian Suits testified that on December 12, 2001, he was patrolling Interstate 88. Shortly after midnight, he saw defendant\u2019s car briefly cross the lane marking about five times. He pulled defendant over. Suits noticed that defendant had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred speech. Suits had defendant perform field sobriety tests which, in Suits\u2019s opinion, defendant failed. Suits therefore arrested defendant for driving under the influence of alcohol. At the police station, defendant refused a Breathalyzer test.\nSergeant Robert Meeder testified that he conducted an inventory search of defendant\u2019s car. Under a blanket behind the passenger\u2019s seat, he found a bottle of Gordon\u2019s vodka with the seal broken. Based on his personal and professional experience, he concluded that the bottle in fact contained vodka. He later disposed of the bottle. Due to the amount of open alcohol containers that the State Police confiscate, policy calls for such containers to be destroyed rather than preserved as evidence.\nAfter the State rested, defendant moved for a directed verdict. The trial court denied the motion. Scott Buxten then testified that he was with defendant that evening. Defendant drank three beers during that time but did not appear to be impaired. Defendant also testified that he had three drinks that evening but was not feeling any effects from them. He testified that the bottle of vodka in the backseat was from a camping trip two weeks earlier. He had not drunk from the bottle shortly before his arrest.\nThe jury found defendant guilty. The trial court sentenced him to 24 months\u2019 probation including 120 days of periodic imprisonment. After the court denied defendant\u2019s posttrial motion, he timely appealed.\nDefendant raises two issues related to the vodka bottle found in his backseat. He first contends that the trial court improperly admitted evidence of the bottle because it was improper \u201cother crimes\u201d evidence. He asserts that the bottle established that he committed another crime, illegal transportation of alcohol (625 ILCS 5/11 \u2014 202(a) (West 2002)), and was offered merely to establish his propensity to commit alcohol-related crimes.\nGenerally, evidence that a defendant committed other crimes is inadmissible merely to establish a defendant\u2019s propensity to commit crimes. People v. Manning, 182 Ill. 2d 193, 213 (1998). Other-crimes evidence may be admissible for other purposes, such as proving modus operandi, identity, motive, or intent. People v. Donoho, 204 Ill. 2d 159, 170 (2003). The admission or exclusion of evidence is within the trial court\u2019s discretion and its decision will not be overturned absent an abuse of that discretion. People v. Peeples, 155 Ill. 2d 422, 456 (1993).\nWe agree with the State that the evidence was introduced, not to prove that defendant previously committed some unrelated crime, but as circumstantial evidence that he committed the crime for which he was on trial. Evidence is relevant if it tends to make the existence of any fact of consequence in the action more or less probable than it would be without the evidence. People v. Hope, 168 Ill. 2d 1, 23 (1995). To convict defendant of driving under the influence of alcohol, the State had to prove that defendant was intoxicated and, therefore, had recently been drinking. See People v. Rhoden, 253 Ill. App. 3d 805, 809 (1993). Evidence that an open alcohol container was found in a defendant\u2019s car is circumstantial evidence that the defendant had been drinking. See People v. Moore, 279 Ill. App. 3d 152, 159-60 (1996); People v. Kappas, 120 Ill. App. 3d 123, 128 (1983). Accordingly, evidence that an open bottle of vodka was found in the passenger compartment of defendant\u2019s car was relevant to prove that he recently had been drinking. Moreover, evidence that is admissible to prove that a defendant committed the crime for which he is on trial need not be excluded merely because it tends to prove that the defendant contemporaneously committed some other crime with which he is not charged. People v. Ostrand, 35 Ill. 2d 520, 530 (1966), overruled in part on other grounds, People v. Bracey, 51 Ill. 2d 514, 519 (1972).\nDefendant also contends that he was denied due process because the State did not preserve the vodka bottle. In People v. Newberry, 166 Ill. 2d 310 (1995), the supreme court clarified the circumstances under which the State is obligated to preserve evidence in a criminal prosecution. There, the defendant was charged with possessing a controlled substance. The State inadvertently destroyed the substance before trial and after the defendant had specifically requested that it be preserved. The supreme court held that the defendant\u2019s due process rights were violated because he was deprived of the opportunity to have the substance independently tested. Newberry, 166 Ill. 2d at 315.\nIn reaching this conclusion, the court distinguished Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), where the defendant was not deprived of due process because \u201cno more could be said of the evidence \u2018than that it could have been subjected to tests, the results of which might have exonerated the defendant.\u2019 \u201d Newberry, 166 Ill. 2d at 314-15, quoting Youngblood, 488 U.S. at 57, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. Further, the court observed that \u201cpolice do not have \u2018an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.\u2019 \u201d Newberry, 166 Ill. 2d at 315, quoting Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. Where the evidence is only \u201c \u2018potentially useful,\u2019 \u201d failing to preserve it does not violate due process unless the police acted in bad faith. Newberry, 166 Ill. 2d at 315, quoting Young-blood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.\nHere, there can be no question that the police acted in good faith. The unrebutted testimony was that the evidence was destroyed pursuant to a policy that, because of the volume of open alcohol seized by the State Police, small amounts of open alcohol were not retained in evidence.\nMoreover, it is not clear that the evidence was even \u201cpotentially useful.\u201d Defendant was not charged with an open-alcohol violation. Thus, even if the substance had been tested and found not to be alcohol, it would not have exonerated defendant. It would, at most, have neutralized one piece of circumstantial evidence against him. Therefore, the State was under no obligation to preserve the vodka bottle for potential use by the defense.\nDefendant\u2019s final contention is that he was not proved guilty beyond a reasonable doubt. He asserts that the State did not lay the proper foundation for refreshing Suits\u2019s recollection. He also argues that Suits testified only from reading his report rather than from his independent recollection of the incident.\nInitially, we note that defendant did not contemporaneously object to Suits\u2019s testimony on these bases. He therefore has waived these contentions. See People v. Enoch, 122 Ill. 2d 176, 186-88 (1988). The waiver is particularly significant here, because had defendant objected at the time, the prosecutor might well have been able to provide the missing foundation or to further clarify the issue of Suits\u2019s reliance on his report.\nEven if we were to consider the merits, however, we would find defendant\u2019s contentions without merit. Defendant quotes extensive portions of Suits\u2019s testimony in which he stated that he had limited recollection of, or could not \u201cvisualize,\u201d the events leading to defendant\u2019s arrest. At one point, when asked if he had an independent recollection of the field sobriety tests or was testifying from his reports, he stated, \u201cMost of just from my reports.\u201d However, in response to a follow-up question, he stated, \u201cI have a little bit of recollection of it, yes.\u201d Defendant then quotes the following portion of Suits\u2019s testimony on redirect examination:\n\u201cQ. You did take a report correct of that this [sic] incident took place.\nA. Correct.\nQ. And you [sic] when did you write that report?\nA. The day of that morning.\nQ. Was the incident fresh in your mind when you wrote this report?\nA. Yes, it was.\nQ. And since that time obviously this 2001 you\u2019ve had some other arrests since then, correct?\nA. Right.\nQ. And is it difficult for you after reviewing the report to refresh your memory?\n% ^ ^\nA. After I do read the report it does refresh my memory, yes.\u201d\nDefendant argues that the State did not lay the proper foundation for either present recollection refreshed or past recollection recorded. However, the State was not required to do so because Suits never refreshed his recollection while testifying and never testified that his recollection was exhausted.\nA document may be used to refresh a witness\u2019s recollection while testifying. People v. Shatner, 174 Ill. 2d 133, 153 (1996); M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 612.1, at 563 (7th ed. 1999) (hereafter Graham). However, \u201cit is fundamental that a witness\u2019 memory can be refreshed only after it has been established that the witness has no memory concerning the facts in question.\u201d Shatner, 174 Ill. 2d at 153. If a witness lacks independent recollection of the occurrence about which he is testifying and a record or memorandum fails to refresh his current recollection, the document itself may be admissible as a recorded recollection if certain foundational requirements are met. Graham, \u00a7 803.9, at 813. Here, the State did not have to do either because Suits never testified that his memory was exhausted. Throughout defense counsel\u2019s lengthy cross-examination, he consistently maintained that he had at least some independent recollection of the incident. Thus, there was no need to refresh his memory.\nDefendant also appears to contend that Suits\u2019s testimony was based on his reading of the report rather than his independent recollection. A fair inference from the above-quoted colloquy is that Suits refreshed his recollection from his report before testifying. This in itself was not improper. A witness may refer to documents to refresh his recollection prior to taking the stand. Graham, \u00a7 612.1, at 564. However, the witness must then testify from his independent recollection. People v. Griswold, 405 Ill. 533, 541-42 (1950). The extent to which the documents actually refreshed the witness\u2019s recollection goes to the weight, not the admissibility, of his testimony. Corrales v. American Cab Co., 170 Ill. App. 3d 907, 911 (1988); Graham, \u00a7 612.1, at 564.\nDefendant suggests that, in denying his motion for a directed verdict, the trial court erred in concluding that Suits was \u201crehabilitated somewhat\u201d during redirect examination. As noted, Suits testified consistently to having at least some independent recollection of the incident. On redirect, he stated, \u201cAfter I do read the report it does refresh my memory, yes.\u201d In ruling on a motion for a directed verdict, the court must view the evidence in the light most favorable to the State and decide whether the evidence so viewed fails to establish defendant\u2019s guilt beyond a reasonable doubt. People v. Turner, 127 Ill. App. 3d 784, 790 (1984). Because the trial court had to consider the evidence in the light most favorable to the State, and because the issue of Suits\u2019s reliance on his report affected only the weight of the evidence, the trial court properly considered that evidence in ruling on the motion and did not err in denying it.\nFinally, we reject any suggestion that the State did not present sufficient evidence to prove defendant\u2019s guilt beyond a reasonable doubt. Where the sufficiency of the evidence is challenged on appeal, the relevant question is whether, after viewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).\nDefendant\u2019s argument is based on the premise that Suits\u2019s testimony was based solely on his report and should have been disregarded. We have already rejected this contention. When Suits\u2019s testimony is considered in conjunction with the other evidence, there was ample proof that defendant drove under the influence of alcohol. Suits testified that he saw defendant driving erratically. See Kappas, 120 Ill. App. 3d at 128 (evidence that the defendant was weaving out of his lane was relevant to show that he was driving under the influence). After effecting a traffic stop, the trooper noticed that defendant had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred speech. He failed field sobriety tests. Later, he refused a Breathalyzer test. See People v. Thomas, 200 Ill. App. 3d 268, 282 (1990) (refusal to take breath test is evidence of consciousness of guilt). An open bottle of alcohol was found in defendant\u2019s car. Defendant admitted that he had been drinking that evening, although he denied being impaired by it. There was sufficient evidence for the jury to find beyond a reasonable doubt that defendant drove under the influence of alcohol.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nBOWMAN and GROMETER, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE O\u2019MALLEY" } ], "attorneys": [ "Wayne E. Brucar, of Brucar & Yetter, P.C., of Glen Ellyn, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P. Moltz and Sally A. Swiss, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Paul Benjamin Linton, of Northbrook, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN M. CANTLIN, Defendant-Appellant.\nSecond District\nNo. 2\u201403\u20140668\nOpinion filed June 4, 2004.\nWayne E. Brucar, of Brucar & Yetter, P.C., of Glen Ellyn, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin P. Moltz and Sally A. Swiss, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Paul Benjamin Linton, of Northbrook, for the People." }, "file_name": "0998-01", "first_page_order": 1016, "last_page_order": 1022 }