Rule 23 Order filed
May 20, 2002;
Motion to publish granted
June 6, 2002

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JUSTICE WELCH delivered the opinion of the court:

As a result of this accident, Michael D. Bennett (defendant) was charged byinformation, filed in the circuit court of Williamson County, with (1) reckless homicide inthat while under the influence of alcohol and while acting in a reckless manner, he operateda motor vehicle in such a manner as to cause death or great bodily harm to an individual byturning left in front of, and colliding with, a vehicle driven by Jeremy Hughes, therebycausing the death of Jeremy Hughes, and (2) aggravated driving under the influence ofalcohol in that he knowingly drove a motor vehicle under the influence of alcohol and wasinvolved in a motor vehicle accident that proximately resulted in great bodily harm to BrandyHughes, the wife of the decedent, Jeremy Hughes. Following a jury trial, defendant wasconvicted of both counts. He was sentenced to 12 years in the Department of Correctionson the reckless homicide conviction. No sentence was imposed on the conviction foraggravated driving under the influence of alcohol. Defendant appeals.

Defendant raises three issues on appeal: (1) whether the trial court abused itsdiscretion in granting the State's motion to reopen its case to present additional evidence afterdefendant had moved for a directed verdict at the close of the State's case, (2) whether theState failed to prove beyond a reasonable doubt that defendant was the driver of the whitepickup truck involved in the motor vehicle accident out of which these charges arose, and (3)whether his conviction for aggravated driving under the influence of alcohol must be vacatedbecause it was based on the same physical act as his conviction for reckless homicide. Forthe reasons that follow, we affirm defendant's conviction and sentence for reckless homicideand vacate his conviction for aggravated driving under the influence of alcohol.

At the close of the State's case, defendant moved for a directed verdict based on thefact that the State had failed to prove that defendant had been the driver of the white pickuptruck which collided with the vehicle driven by Jeremy Hughes. The State responded thatit had presented sufficient circumstantial evidence that defendant had been the driver of thetruck; nevertheless, the State sought leave to reopen its case to present additional evidenceon this point. The State was not clear on exactly what evidence it might present but indicatedthat it knew of the owner of the pickup truck, who could testify that he had loaned the truckto defendant, and of ambulance personnel who had removed defendant from the vehicle andhad taken him to the hospital. The ambulance personnel had not been disclosed in discovery. Over defendant's objection, the trial court granted the State leave to reopen its case to presentthe testimony of Tad Thompson, an ambulance attendant who had responded to the scene ofthe accident. Defendant was given the opportunity to interview Thompson prior to histestimony.

At the trial, Thompson testified that he had responded to the accident scene with theambulance. He proceeded to the white pickup truck and observed a man hanging out of thepassenger-side window. This man was removed from the truck and transported to thehospital. There was no other individual in the truck when Thompson arrived. Thompsonidentified defendant as the man he had removed from the pickup truck and transported to thehospital. Thompson has a clear memory of this accident and defendant's identity because ofthe severity of the accident.

As defendant correctly points out, it is within the sound discretion of the trial courtwhether a case may be reopened for further evidence, and this discretion will not beinterfered with except where it is clearly abused. People v. Cross, 40 Ill. 2d 85, 90 (1968). In Cross, the defendant, charged with burglary, moved for a directed verdict at the close ofthe State's case on the ground that the State had failed to prove the corporate ownership ofthe building. The trial court allowed the State to reopen its case to make this proof, and thesupreme court found no abuse of discretion by the trial court. Defendant could not have beensurprised by the additional proof and was not prejudiced by the trial court's ruling permittingthe reopening of the case.

Although, in Cross, proof of the corporate ownership was merely a formal matter, theState has been allowed to reopen its case not only for the purpose of proving formalities butalso to establish the very facts essential for a conviction. See People v. Price, 8 Ill. App. 3d158, 160 (1972). Thus, in People v. Henderson, 223 Ill. App. 3d 131, 134 (1991), thedefendant, charged with criminal damage to state-supported property, moved for a directedverdict at the close of the State's case on the ground that the State had failed to prove that thedamaged property was supported by state funds. The trial judge agreed that the State hadfailed to establish this essential element of the offense, but the judge allowed the State toreopen its case to make the requisite proof. On review, this court found no abuse ofdiscretion in the trial court's ruling allowing the State to reopen its case.

Contrary to defendant's assertion, there is no per se rule prohibiting a trial court frompermitting the State to reopen its case once the defendant has moved for a directed verdict. See People v. Faulkner, 64 Ill. App. 3d 453, 457 (1978). We do not read section 115-4(k)of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-4(k) (West 2000)) asestablishing such a rule. While that section provides that when, at the close of the State'sevidence, the evidence is insufficient to support a finding of guilty, the court shall, on themotion of the defendant, enter a directed verdict in favor of the defendant, we do not believethat this section precludes the trial court from granting the State's motion to reopen its caseafter a motion for directed verdict has been made. The holdings of the cases cited herein lendsupport. The trial court retains discretion to grant a motion to reopen the evidence even aftera motion for directed verdict, and absent an abuse of that discretion, its decision will not beoverturned on appeal.

We understand defendant's assertion that no competent defense attorney would evermove for a directed verdict if he knew that the State would then be allowed to reopen its caseto present further evidence to cure the precise deficiency pointed out in the motion fordirected verdict. Nevertheless, a criminal trial is not a game to win or lose, but a search fortruth and justice. See People v. Lamb, 21 Ill. App. 3d 827, 837 (1974), aff'd, 61 Ill. 2d 383(1975). Every effort should be made to achieve justice, whether that results in the convictionor the acquittal of the defendant. The State's motion to reopen its case to present thetestimony of Thompson as to the identity of the individual removed from the white pickuptruck and the trial court's grant of that motion were good-faith efforts to achieve justice inthis case. Defendant has not claimed that he was surprised by the evidence admitted uponthe reopening of the State's case, nor has he claimed any prejudice as a result of the trialcourt's ruling. We find no abuse of discretion in the trial court's ruling.

Defendant next argues that the State failed to prove beyond a reasonable doubt thatdefendant was the driver of the white pickup truck. In considering a defendant's challengeto the sufficiency of the evidence, the relevant question is whether, after viewing all theevidence in the light most favorable to the prosecution, any rational trier of fact could havefound the essential elements of the crime beyond a reasonable doubt. People v. Oaks, 169Ill. 2d 409, 457-58 (1996). Defendant argues on appeal that there is no direct evidence thathe was the driver of the truck. None of the occurrence witnesses could testify that they sawdefendant driving the truck. Even the ambulance attendant, Thompson, could not testify thatdefendant was the driver of the truck. Thompson could only testify that defendant was theman he found hanging out of the passenger-side window of the truck, whom he removedfrom the truck and transported to the hospital. Accordingly, defendant argues, "It is thereforepossible that someone else drove the truck, and that person left the scene of the accident."

A criminal conviction will not be set aside unless the evidence is so improbable orunsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins,106 Ill. 2d 237, 261 (1985). Proof that the defendant was the driver of the vehicle can beestablished by circumstantial evidence alone. See People v. Gutierrez, 105 Ill. App. 3d 1059,1063 (1982). The State has met its burden in this case. Viewing the evidence in the lightmost favorable to the State, a rational jury could have found beyond a reasonable doubt thatdefendant was the driver of the white pickup truck. Defendant was the only person seen inthe vehicle immediately after the accident. No one was observed exiting the vehicle andleaving the scene after the accident. We cannot conclude that the circumstantial evidencethat defendant was the driver of the white pickup truck is so improbable or unsatisfactory thatit creates a reasonable doubt of defendant's guilt.

Finally, relying on People v. King, 66 Ill. 2d 551, 566 (1977), defendant argues thathis conviction for aggravated driving under the influence of alcohol must be vacated becauseit is based on the same physical act as his conviction for reckless homicide, that is, drivingunder the influence of alcohol. The State concedes that the conviction for aggravated drivingunder the influence of alcohol must be vacated, but on the ground that it is a lesser-includedoffense of reckless homicide.

The one-act/one-crime rule announced in King, 66 Ill. 2d at 566, held that multipleconvictions are improper if based upon precisely the same physical act. The two offensesin the case at bar are based on a single physical act of driving a motor vehicle while underthe influence of alcohol and causing a motor vehicle accident. Defendant drove drunk onlyonce and had a single accident. Accordingly, the lesser offense of aggravated driving underthe influence of alcohol must be vacated.

We note that no sentence was imposed on the conviction for aggravated driving underthe influence. Nevertheless, the jury's verdict of guilt on that charge was accepted by the trialcourt, and a judgment of guilty was entered thereon. Accordingly, we vacate this judgmentof guilty on the charge of aggravated driving under the influence of alcohol.

For the foregoing reasons, we affirm the conviction and sentence of defendant on thecharge of reckless homicide, and we vacate his conviction for aggravated driving under theinfluence of alcohol.

Affirmed in part and vacated in part.

GOLDENHERSH, J., concurs.

JUSTICE KUEHN, specially concurring:

I concur in all aspects of the majority opinion. I write to elaborate on the followingcomment about the competency of those attorneys who move for a directed verdict thatresults in the cure of an otherwise fatally flawed prosecution:

"We understand defendant's assertion that no competent defense attorney would evermove for a directed verdict if he knew that the State would then be allowed to reopen its caseto present further evidence to cure the precise deficiency pointed out in the motion fordirected verdict. Nevertheless, a criminal trial is not a game to win or lose, but a search fortruth and justice. [Citation.] Every effort should be made to achieve justice, whether thatresults in the conviction or the acquittal of the defendant." Order at 4-5.

While I can readily agree with the noble pursuit of truth and justice, this passageseems to imply that an ill-timed challenge to a fatally flawed case, which results in repairafter the defect is exposed, might not constitute the ineffective assistance of counsel becauseit serves an overriding effort to achieve justice. I trust that this implication is not intended. While a criminal trial is hardly a mere game, it proceeds under certain rules to anultimate outcome that may belie truth and mock justice. Trials are all about winning andlosing, and a criminal defense lawyer who blows the opportunity to obtain an undeservedvictory for his client, even if the blunder serves a greater good by producing a deservedconviction, has provided constitutionally deficient representation.

The defendant does not raise an ineffective-assistance-of-counsel claim in this case. However, what happened here raises an interesting question. Is it tactically sound to voicea request for a directed verdict at the close of the State's case when the trial judge possessesthe ability to permit additional evidence to cure the defect upon which the directed verdictmotion is made? Reasonably effective criminal defense lawyers should know that trialjudges are guided by the platitudes set forth by my colleagues-that "a criminal trial is not agame to win or lose, but a search for the truth" in which "[e]very effort should be made toachieve justice, whether that results in the conviction or the acquittal of the defendant." Order at 4-5. They should know that most judges will prefer truth and justice to prevail overa technical omission in proof on the State's part. Ergo, sound legal strategy would seem tocommend restraint in raising any challenge over a failure to identify the defendant, until afterthe jury is discharged and the trial judge no longer possesses the power to assist theprosecution in mending the error of its ways. While some might call such a tacticgamesmanship, timing the revelation of a deficiency in the State's proofs so that it cannot becorrected would be decidedly reasonable strategy. After all, it wins the case.

But for defense counsel's motion, which brought to light the failure to prove identity,identity would never have been proven. A reasonable probability exists that the outcome ofthis appeal would be different. The defendant would have to prevail on his challenge to thelegal sufficiency of the evidence because Thompson, the witness called after the State waspermitted to reopen its case, was the only witness to place the defendant at the scene of theaccident. Until the State called him, it had not established that this defendant was anywherenear the scene of the crime.

Where the State has failed to present evidence to establish a necessary element of itscase, like having the defendant identified, defense counsel possesses the absolute ability tochampion his client's acquittal. What professional blunder could be worse than a directedverdict motion that telegraphs the proof's deficiency and results in a trial judge's grant of theright to present additional evidence to cure it? It seems to me that this defendant suffers aconviction that the evidence would not have supported absent the enlightenment providedby the defendant's attorney. Nonetheless, I concur in the majority opinion.