No. 2--03--0668

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:

Following a jury trial, defendant, Steven M. Cantlin, was convicted of driving under theinfluence of alcohol (625 ILCS 5/11--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 vodkafound in defendant's car; (2) he was deprived of due process because the State destroyed the bottlebefore trial; and (3) he was not proved guilty beyond a reasonable doubt because the arresting officertestified, not from his personal recollection, but solely from reading his report. We affirm.

The evidence at trial revealed the following. State trooper Brian Suits testified that onDecember 12, 2001, he was patrolling Interstate 88. Shortly after midnight, he saw defendant's carbriefly cross the lane marking about five times. He pulled defendant over. Suits noticed thatdefendant 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's opinion, defendant failed. Suitstherefore arrested defendant for driving under the influence of alcohol. At the police station,defendant refused a breathalyzer test.

Sergeant Robert Meeder testified that he conducted an inventory search of defendant's car. Under a blanket behind the passenger's seat, he found a bottle of Gordon's vodka with the sealbroken. Based on his personal and professional experience, he concluded that the bottle in factcontained vodka. He later disposed of the bottle. Due to the amount of open alcohol containers thatthe State police confiscate, policy calls for such containers to be destroyed rather than preserved asevidence.

After the State rested, defendant moved for a directed verdict. The trial court denied themotion. Scott Buxten then testified that he was with defendant that evening. Defendant drank threebeers during that time but did not appear to be impaired. Defendant also testified that he had threedrinks that evening but was not feeling any effects from them. He testified that the bottle of vodkain the backseat was from a camping trip two weeks earlier. He had not drunk from the bottle shortlybefore his arrest.

The jury found defendant guilty. The trial court sentenced him to 24 months' probationincluding 120 days of periodic imprisonment. After the court denied defendant's posttrial motion, hetimely appealed.

Defendant raises two issues related to the vodka bottle found in his backseat. He firstcontends that the trial court improperly admitted evidence of the bottle because it was improper"other crimes" evidence. He asserts that the bottle established that he committed another crime,illegal transportation of alcohol (625 ILCS 5/11--202(a) (West 2002)), and was offered merely toestablish his propensity to commit alcohol-related crimes.

Generally, evidence that a defendant committed other crimes is inadmissible merely toestablish a defendant's 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 orexclusion of evidence is within the trial court's discretion and its decision will not be overturnedabsent an abuse of that discretion. People v. Peeples, 155 Ill. 2d 422, 456 (1993).

We agree with the State that the evidence was introduced, not to prove that defendantpreviously committed some unrelated crime, but as circumstantial evidence that he committed thecrime for which he was on trial. Evidence is relevant if it tends to make the existence of any fact ofconsequence 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, theState had to prove that defendant was intoxicated and, therefore, had recently been drinking. SeePeople v. Rhoden, 253 Ill. App. 3d 805, 809 (1993). Evidence that an open alcohol container wasfound in a defendant's car is circumstantial evidence that the defendant had been drinking. See Peoplev. 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 ofdefendant's car was relevant to prove that he recently had been drinking. Moreover, evidence thatis admissible to prove that a defendant committed the crime for which he is on trial need not beexcluded merely because it tends to prove that the defendant contemporaneously committed someother crime with which he is not charged. People v. Ostrand, 35 Ill. 2d 520, 530 (1966), overruledin part on other grounds, People v. Bracey, 51 Ill. 2d 514, 519 (1972).

Defendant also contends that he was denied due process because the State did not preservethe vodka bottle. In People v. Newberry, 166 Ill. 2d 310 (1995), the supreme court clarified thecircumstances 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 inadvertentlydestroyed the substance before trial and after the defendant had specifically requested that it bepreserved. The supreme court held that the defendant's due process rights were violated because hewas deprived of the opportunity to have the substance independently tested. Newberry, 166 Ill. 2dat 315.

In reaching this conclusion, the court distinguished Arizona v. Youngblood, 488 U.S. 51, 102L. Ed. 2d 281, 109 S. Ct. 333 (1988), where the defendant was not deprived of due process because"no more could be said of the evidence 'than that it could have been subjected to tests, the results ofwhich might have exonerated the defendant.' " Newberry, 166 Ill. 2d at 314-15, quotingYoungblood, 488 U.S. at 57, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. Further, the court observedthat "police do not have 'an undifferentiated and absolute duty to retain and to preserve all materialthat might be of conceivable evidentiary significance in a particular prosecution.' " Newberry, 166Ill. 2d at 315, quoting Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. Wherethe evidence is only " 'potentially useful,' " failing to preserve it does not violate due process unlessthe police acted in bad faith. Newberry, 166 Ill. 2d at 315, quoting Youngblood, 488 U.S. at 58, 102L. Ed. 2d at 289, 109 S. Ct. at 337.

Here, there can be no question that the police acted in good faith. The unrebutted testimonywas that the evidence was destroyed pursuant to a policy that, because of the volume of open alcoholseized by the State police, small amounts of open alcohol were not retained in evidence.

Moreover, it is not clear that the evidence was even "potentially useful." Defendant was notcharged with an open-alcohol violation. Thus, even if the substance had been tested and found notto be alcohol, it would not have exonerated defendant. It would, at most, have neutralized one pieceof circumstantial evidence against him. Therefore, the State was under no obligation to preserve thevodka bottle for potential use by the defense.

Defendant's final contention is that he was not proved guilty beyond a reasonable doubt. Heasserts that the State did not lay the proper foundation for refreshing Suits's recollection. He alsoargues that Suits testified only from reading his report rather than from his independent recollectionof the incident.

Initially, we note that defendant did not contemporaneously object to Suits's testimony onthese 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 theissue of Suits's reliance on his report.

Even if we were to consider the merits, however, we would find defendant's contentionswithout merit. Defendant quotes extensive portions of Suits's testimony in which he stated that hehad limited recollection of, or could not "visualize," the events leading to defendant's arrest. At onepoint, when asked if he had an independent recollection of the field sobriety tests or was testifyingfrom his reports, he stated, "Most of just from my reports." However, in response to a followupquestion, he stated, "I have a little bit of recollection of it, yes." Defendant then quotes the followingportion of Suits's testimony on redirect examination:

"Q. You did take a report correct of that this [sic] incident took place.

A. Correct.

Q. And you [sic] when did you write that report?

A. The day off that morning.

Q. Was the incident fresh in your mind when you wrote this report?

A. Yes, it was.

Q. And since that time obviously this 2001 you've had some other arrests since then, correct?

A. Right.

Q. And is it difficult for you after reviewing the report to refresh your memory?

* * *

A. After I do read the report it does refresh my memory, yes."

Defendant argues that the State did not lay the proper foundation for either presentrecollection refreshed or past recollection recorded. However, the State was not required to do sobecause Suits never refreshed his recollection while testifying, and never testified that his recollectionwas exhausted.

A document may be used to refresh a witness's recollection while testifying. People v.Shatner, 174 Ill. 2d 133, 153 (1996); M. Graham, Cleary & Graham's Handbook of Illinois Evidence