2022 IL App (1st) 201150-U No. 1-20-1150 Order filed June 22, 2022 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) Nos. 09 290204 ) 09 290205 v. ) 09 290206 ) 09 290207 ) COY BUTLER JR., ) Honorable ) John J. Mahoney ) Margaret M. Ogarek, Defendant-Appellant. ) Judges presiding.
JUSTICE BURKE delivered the judgment of the court. Justice McBride concurred in the judgment. Presiding Justice Gordon concurred in part and dissented in part in the judgment.
ORDER
¶1 Held: We affirm defendant’s driving violations of improper lane usage, transportation or possession of open alcohol, wearing a headset receiver while driving, and violating the minimum speed regulation where the trial court did not err in denying his motion in limine and motion to quash his arrest and suppress the evidence therefrom, and where there was sufficient evidence of him committing the offenses. No. 1-20-1150
¶2 Following a bench trial, the trial court found defendant Coy Butler Jr. guilty of improper
lane usage, transportation or possession of open alcohol, wearing a headset receiver while driving,
and violating the minimum speed regulation. The court subsequently fined defendant $500 and
imposed additionally mandatory assessments. On appeal, defendant contends that: (1) the court
erred in denying his pretrial motion in limine; (2) the court erred in denying his motion to quash
his arrest and suppress the evidence therefrom; and (3) there was insufficient evidence to find him
guilty of the offenses. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 In the early morning hours of August 5, 2018, Illinois State Police Trooper Raymond Kurut
observed defendant veering between the left lane, center lane and right lane of Interstate 57 while
driving below the posted speed limit and wearing headphones. Trooper Kurut pulled defendant
over and performed various field sobriety tests on him. As a result of those tests, Trooper Kurut
arrested defendant for suspected driving while under the influence of alcohol. Before having
defendant’s vehicle towed, Trooper Kurut performed an inventory of the vehicle. During the
inventory, Trooper Kurut discovered a mostly empty beer bottle on the floor in the back row within
arm’s reach of the driver’s seat. After taking the bottle out of defendant’s vehicle, Trooper Kurut
displayed it for his dash camera and then tossed it into a ditch off of the highway. Thereafter,
Trooper Kurut charged defendant, by citation and complaint, with driving under the influence of
alcohol, improper lane usage, transportation or possession of open alcohol, wearing a headset
receiver while driving, violating the minimum speed regulation, and operating an uninsured motor
vehicle, all in violation of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/1-100 et seq.
(West 2018)).
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¶5 An attorney filed an appearance on defendant’s behalf and filed a motion in limine to
prevent the State from presenting any testimony about the offense of transportation or possession
of open alcohol, namely any reference to the beer bottle Trooper Kurut found. Defendant asserted
that the bottle was empty, and he gave empty bottles to his cousin who made drinking glasses out
of them. Defendant argued that, because Trooper Kurut discarded the bottle, he was unable to
inspect it and show that it was actually empty. In ruling on defendant’s motion, the trial court
observed that, while the defense did not have the actual beer bottle, the discovery of the bottle was
captured on video. 1 In turn, the court found that defendant was not harmed by Trooper Kurut
discarding the bottle. Additionally, the court found that defendant did not show the State had
willfully destroyed the evidence. Consequently, the court denied defendant’s motion in limine.
¶6 A. Suppression Hearing
¶7 Defendant also filed a motion to quash his arrest and suppress the evidence therefrom,
arguing that his conduct prior to being stopped could not reasonably be interpreted as constituting
a driving offense.
¶8 At the suppression hearing, defendant testified that, in the early morning hours of August
5, 2018, he was driving northbound on Interstate 57 in the center lane. He put on his left turn signal
and attempted to move into the left lane.2 After entering that lane about half way, he noticed a
vehicle approaching so he slowed down and returned to the center lane. However, that approaching
vehicle also moved into the center lane. With his left turn signal still activated, defendant again
attempted to move into the left lane. But he noticed another vehicle approaching, so he retuned
1 Judge John J. Mahoney ruled on defendant’s motion in limine. 2 Judge Margaret M. Ogarek presided over defendant’s suppression hearing and subsequent bench trial.
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back to the center lane. Suddenly, defendant realized the vehicle trailing him was an Illinois State
Police vehicle, and Trooper Kurut activated his emergency lights. Defendant pulled over to the
shoulder on the right side of the road. While sitting on the side of the road, defendant grabbed his
Bluetooth headphones in order to make a phone call to his mother. At the hearing, defendant
explained that he drove the way he did only in response to the driving conduct of Trooper Kurut’s
vehicle behind him.
¶9 Following the examination of defendant, the trial court admitted into evidence video from
the dash camera of Trooper Kurut’s vehicle. The video initially showed defendant’s vehicle appear
to drift slightly into the right lane while its left turn signal was activated. While defendant did this,
there was a vehicle in the right lane that appeared to slow down. Once defendant’s vehicle’s
returned to the center lane, the other vehicle sped up and passed defendant’s vehicle in the right
lane. Thereafter, defendant, while his left turn signal remained activated, veered into the left lane
before returning to the center lane and braking. Defendant then drifted slightly into the right lane,
again while his left turn signal remained activated. Defendant returned to the center lane at which
point Trooper Kurut moved from the left lane to the center lane and began driving directly behind
defendant. Defendant’s vehicle again drifted slightly into the left lane, which caused Trooper Kurut
to activate his emergency lights and pull defendant over. From the time that defendant’s vehicle
appeared on video and the time that Trooper Kurut activated his emergency lights, only one vehicle
passed defendant. Though around the time Trooper Kurut activated his emergency lights, a vehicle
could be seen entering the interstate from the on-ramp.
¶ 10 The State then presented Trooper Kurut, who testified that, in the early morning hours of
August 5, 2018, he observed defendant’s vehicle in the center lane driving below the minimum
posted speed limit of 45 miles per hour with its left turn signal activated. Trooper Kurut determined
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that defendant’s vehicle was going below 45 miles per hour by using his speedometer. At the time,
according to Trooper Kurut, traffic was “[t]hin to moderate.” Trooper Kurut next observed
defendant’s vehicle move halfway into the left lane, return to the center lane and then drift about
a tire width into the right lane with its left turn signal still activated. Trooper Kurut also observed
that defendant had a large set of headphones on his head. Based on these observations, Trooper
Kurut activated his emergency lights and pulled defendant over for violating the minimum speed
regulation, improper lane usage and driving while using a headset receiver. As Trooper Kurut
walked toward defendant on the shoulder of the highway, he noticed that defendant was no longer
wearing the headphones. At the hearing, Trooper Kurut acknowledged that, on the citation he
wrote for defendant violating the minimum speed regulation, he did not write the actual speed he
observed defendant driving. Trooper Kurut explained that his software did not “allow [him] to put
that in.”
¶ 11 Following Trooper Kurut’s testimony, defendant argued that his driving conduct was
nothing more than “a reaction” to what Trooper Kurut was doing and that no headphones could be
seen in the dash camera video. After the State made its argument, the trial court denied defendant’s
motion to suppress, finding there was ample evidence to show that defendant committed the traffic
violations for which Trooper Kurut pulled him over. Although the court noted that it could not see
defendant wearing the headphones in the dash camera video, the court observed that Trooper Kurut
testified to that fact. The case subsequently proceeded toward trial. Before the trial occurred, the
State dropped its citation against defendant of operating an uninsured motor vehicle.
¶ 12 B. Bench Trial
¶ 13 At defendant’s bench trial, the State presented Trooper Kurut, who testified to his
background and training as an Illinois State Police trooper. He also testified to the events that led
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to him pulling over defendant, as discussed in his testimony at defendant’s suppression hearing.
Notably, Trooper Kurut testified to defendant veering between the left, center and right lane,
wearing “a large headphone set” while operating his vehicle and driving below the minimum
posted speed limit of 45 miles per hour. However, when defendant’s attorney asked Trooper Kurut
on cross-examination whether defendant’s driving “interfere[d] with any traffic,” Trooper Kurut
testified that “[t]here w[ere] no cars directly near in his vicinity.” After Trooper Kurut activated
his emergency lights and defendant pulled over to the shoulder, Trooper Kurut exited his vehicle
and walked toward defendant. As Trooper Kurut approached, he observed that defendant was no
longer wearing the headphones. Trooper Kurut began speaking with defendant, during which he
noticed defendant had glassy and bloodshot eyes, his speech was slurred and there was a “very
strong odor of alcohol” emanating from defendant’s breath. Trooper Kurut asked defendant if he
had been drinking to which defendant responded that he had drank one beer. Because of these
observations, Trooper Kurut had defendant exit the vehicle and perform various field sobriety tests.
While performing the field sobriety tests, Trooper Kurut observed various clues of impairment.
After concluding the tests, Trooper Kurut believed that defendant was impaired and placed him
under arrest for driving while under the influence of alcohol.
¶ 14 In preparation for taking defendant to the police station and having his vehicle towed,
Trooper Kurut conducted a mandatory inventory of defendant’s vehicle. During the inventory, he
found a “open partially empty bottle of Modelo beer” on the floor in the rear passenger within
arm’s reach of the driver’s seat. In his post-incident report, however, Trooper Kurut described the
bottle as almost empty. After finding the bottle, Trooper Kurut disposed of it in the ditch area off
the side of the road because there was no trash receptacle nearby. Trooper Kurut did not note the
bottle on the inventory sheet and did not take the bottle as evidence, explaining that he was “not
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allowed to per policy.” Although Trooper Kurut saw defendant’s headphones, he did not
photograph them. Trooper Kurut transported defendant to the police station, where defendant told
Trooper Kurut that he had drank one glass of wine four hours earlier at a friend’s house.
¶ 15 During the State’s case, the parties stipulated to the foundation of the video evidence,
which was Trooper Kurut’s dash camera video and the video was admitted into evidence. The
video evidence was also published for the trial court. In addition to the video displaying
defendant’s driving actions, as discussed during our summary of his suppression hearing, the video
showed defendant reach for the top of his head shortly after pulling over onto the shoulder of the
highway. But from our review of the video, it is impossible to determine exactly what defendant
was doing. Additionally, in the video, while Trooper Kurut was performing the inventory of
defendant’s vehicle, he discovered the Modelo bottle in the backseat. Trooper Kurut then brought
the bottle toward his own vehicle and displayed it for his dash camera. Trooper Kurut gently shook
the bottle, which caused some liquid at the bottom of the bottle to swirl around. Trooper Kurut
then tossed the bottle over the guardrail and into a ditch off the highway.
¶ 16 In the defense’s case, defendant testified that he had recently left a party in Indiana and
was driving to his mother’s house in Blue Island when he was pulled over. Like Trooper Kurut,
defendant also testified to the events that led to him being pulled, as he discussed at his suppression
hearing. Defendant asserted that, when he was moving between lanes, he was doing so safely and
was allowing other vehicles to safely pass him. He did not believe that his driving interfered with
any traffic. Once Trooper Kurut pulled defendant over, he grabbed his headphones to call his
mother. After being unable to reach his mother, defendant placed the headphones on the passenger
seat. Defendant was adamant that he was not wearing them while driving. Shortly after, Trooper
Kurut approached his vehicle, and they began talking. Defendant acknowledged that Trooper
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Kurut found a Modelo beer bottle in his vehicle, but stated that the bottle was empty. Defendant
explained that he had the bottle because he “save[d] beer glasses” and gave them to a friend who
made beer glasses. Defendant then would put the beer glasses on a website to sell. In support,
defendant entered into evidence Defendant’s Group Exhibit No. 2, which were shot glasses
purportedly on sale on defendant’s website. However, defendant conceded that he did not inform
Trooper Kurut about his business.
¶ 17 Following the parties’ closing arguments, the trial court initially found defendant not guilty
of driving under the influence of alcohol. Regarding the charge of improper lane usage, the court
asserted that Trooper Kurut testified credibly to defendant’s vehicle “drifting all over that
highway,” which the dash camera video corroborated. Although the court noted defendant’s
explanation of driving timidly to allow other vehicles to pass him, the court did not believe his
testimony. As such, the court found ample evidence that defendant was guilty of improper lane
usage. Regarding the charge of transportation or possession of open alcohol, the court highlighted
that Trooper Kurut discarded the actual Modelo bottle, but nevertheless found sufficient evidence
to find that defendant was guilty of driving with an open bottle of alcohol in the car. Regarding
the charge of wearing a headset receiver while driving, the court found Trooper Kurut’s testimony
about defendant wearing a headset receiver credible and corroborated by the video evidence, which
showed defendant “pull [the headphones] off of his head” and “place” them in another location.
As such, the court found defendant guilty of that offense. Finally, the court found defendant guilty
of violating the minimum speed regulation based on Trooper Kurut’s testimony and its own review
of the video evidence, which showed defendant “appear[] to be driving at a slow rate of speed in
comparison to the other vehicles on the highway.” Based on defendant’s driving violations, the
trial court fined defendant $500 and imposed additionally mandatory assessments.
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¶ 18 Defendant filed a motion for new trial, arguing, in part, that the trial court erred in denying
his pretrial motion in limine to bar reference to the beer bottle found inside his vehicle and erred
in denying his motion to quash his arrest and suppress the evidence therefrom. The court, however,
denied defendant’s motion. Thereafter, defendant appealed pro se.
¶ 19 II. ANALYSIS
¶ 20 A. Motion to Quash Arrest and Suppress Evidence
¶ 21 Defendant first contends that the trial court erred in denying his motion to quash his arrest
and suppress the evidence therefrom where his conduct prior to being pulled over by Trooper
Kurut could not be reasonably interpreted as constituting a driving offense.
¶ 22 Both the United States Constitution and Illinois Constitution protects citizens against
unreasonable searches and seizures. U.S. Const. amend. IV; Ill. Const. 1970, art. I, § 6. The
touchstone of a fourth amendment analysis is the reasonableness of the particular government
intrusion of a person’s personal security. People v. Jones, 215 Ill. 2d 261, 268-69 (2005). To this
end, when a police officer stops a vehicle, that stop is subject to the fourth amendment’s
reasonableness requirement. People v. Hackett, 2012 IL 111781, ¶ 20. “As a general matter, the
decision to stop an automobile is reasonable where the police have probable cause to believe that
a traffic violation has occurred.” (Internal quotation marks omitted.) Id. While many traffic stops
are supported by probable cause, the police may conduct a traffic stop with merely a reasonable,
articulable suspicion. Id. “A police officer may conduct a brief, investigatory stop of a person
where the officer can point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion.” Id.
¶ 23 In a motion to suppress, the defendant has the initial burden of proof. People v. Little, 2021
IL App (1st) 181984, ¶ 60. If the defendant makes a prima facie showing of an illegal stop, the
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burden then shifts to the State to counter the defendant’s prima facie case. People v. Reedy, 2015
IL App (3d) 130955, ¶ 45. The ultimate burden of proof, however, remains with the defendant.
Little, 2021 IL App (1st) 181984, ¶ 60. During a suppression hearing, the trial court is responsible
for weighing the evidence, drawing reasonable inferences therefrom and determining the
credibility of the witnesses. People v. Williams, 2016 IL App (1st) 132615, ¶ 32. As such, we apply
a two-part standard of review when examining the court’s ruling on a motion to suppress. People
v. Almond, 2015 IL 113817, ¶ 55. We afford great deference to the court’s findings of fact and will
reverse them only if they are against the manifest weight of the evidence. Id. But we review the
ultimate legal ruling as to whether the evidence should be suppressed de novo. Id.
¶ 24 In this case, Trooper Kurut testified that he pulled defendant over for three violations of
the Vehicle Code: improper lane usage (625 ILCS 5/11-709(a) (West 2018)), violating the
minimum speed regulation (id. § 11-606(a)) and wearing a headset receiver while driving (id. §
12-610). Concerning the latter violation, the Vehicle Code prohibits a driver of a motor vehicle
from wearing “headset receivers while driving.” Id. The Vehicle Code defines a “headset receiver”
as “[a]ny device, other than a hearing aid, designed to be worn on a person’s head that enables the
wearer to hear or receive electronic communications.” Id § 1-125.7. Although there are some
exceptions, none of those are implicated in this case. See id. § 12-610.
¶ 25 At the suppression hearing, Trooper Kurut testified that he observed defendant wearing a
large set of headphones while driving. As the trial court implicitly found his testimony at the
suppression hearing credible by significantly relying on it to deny defendant’s motion, we must
defer to its credibility finding. See Williams, 2016 IL App (1st) 132615, ¶ 32. And in doing so,
because Trooper Kurut testified credibly to observing defendant with headphones on while driving,
that gave him not only reasonable, articulable suspicion, but probable cause, to believe that
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defendant was wearing a headset receiver in violation of section 12-610 of the Vehicle Code (625
ILCS 5/12-610 (West 2018)). Consequently, as the court found, Trooper Kurut had a valid basis
to stop defendant’s vehicle. See Jones, 215 Ill. 2d at 271 (finding where a police officer observed
the vehicle the defendant “was driving had inoperable tail lights, a clear violation of our vehicle
code,” the officer’s “stop of [the] defendant’s vehicle was supported by probable cause”).
¶ 26 Although Trooper Kurut also stopped defendant’s vehicle for improper lane usage and
violating the minimum speed regulation, Trooper Kurut had an independent and sufficient basis to
stop defendant’s vehicle for illegally wearing a headset receiver while driving such that it is
immaterial whether he was also justified in stopping defendant for improper lane usage or violating
the minimum speed regulation. “The seizure of a vehicle is considered reasonable and lawful
where police have probable cause to believe that a traffic violation occurred.” (Emphasis added.)
People v. Sutton, 2020 IL App (1st) 181616, ¶ 21. Accordingly, the trial court properly denied
defendant’s motion to quash his arrest and suppress the evidence therefrom.
¶ 27 B. Motion in Limine
¶ 28 Defendant next contends that the trial court erred in denying his motion in limine to
preclude the State from referencing the beer bottle Trooper Kurut found in his vehicle because
Trooper Kurut acted in bad faith in discarding the bottle, which therefore prevented him from
examining the bottle before trial.
¶ 29 “A motion in limine is a pretrial motion that seeks an order excluding inadmissible
evidence and prohibiting questions concerning such evidence, without the necessity of having the
questions asked and objections thereto made in front of the [trier of fact].” People v. Williams, 188
Ill. 2d 365, 368 (1999). We review the trial court’s ruling on a motion in limine for an abuse of
discretion (People v. Harvey, 211 Ill. 2d 368, 392 (2004)), and will only reverse that ruling if the
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court acted arbitrarily, fancifully or unreasonably to the degree that no reasonable person would
adopt the same view. People v. McDonald, 2016 IL 118882, ¶ 32.
¶ 30 The crux of defendant’s argument is that, because Trooper Kurut threw the bottle away, he
was precluded from inspecting the bottle and therefore, any reference to that bottle should have
been barred at trial. This essentially is an argument that Trooper Kurut’s discarding of the bottle
denied defendant due process. The threshold question in a due process claim based upon lost or
destroyed evidence is whether that evidence was materially exculpatory or merely potentially
useful. People v. Sutherland, 223 Ill. 2d 187, 236 (2006). If materially exculpatory evidence is
withheld or destroyed, the defendant will be denied due process regardless of whether the State
acted in good or bad faith. Id. at 236. Conversely, if the State loses or destroys evidence that is
merely potentially useful, the critical question is whether there was bad faith on the part of the
State. Id. (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
¶ 31 Applying the principles of Sutherland, we first find that the beer bottle was only potentially
useful because once Trooper Kurut discovered the bottle, he displayed the bottle for his dash
camera and swirled it to show there was some liquid visible at the bottom. Moreover, to sufficiently
prove defendant’s guilt for transportation or possession of open alcohol, the State need not
introduce evidence of chemical testing of the liquid in the container. See People v. Hood, 343 Ill.
App. 3d 1245, 1257 (2003) (“The State’s failure to introduce testimony concerning a chemical
analysis of the liquid in the beer cans does not preclude a finding of guilt [of transportation or
possession of open alcohol].”) rev’d in part on other grounds by People v. Hood, 213 Ill. 2d 244
(2004); People v. Angell, 184 Ill. App. 3d 712, 717 (1989) (rejecting the defendant’s argument that
“the failure of the State to introduce testimony concerning a chemical analysis of the contents of
the beer cans somehow precludes a finding of guilty” for transportation or possession of open
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alcohol). In defendant’s motion in limine he argued that he was prejudiced by Trooper Kurut
discarding the bottle because he was unable to inspect the bottle to show that there was no liquid
in it. And he supported this argument by asserting that he collected empty beer bottles for his friend
who made beer glasses. That is to say, this is not a case where defendant would have credibly
claimed that the liquid present in the bottle was some liquid other than alcohol. Consequently, the
bottle was not materially exculpatory evidence, but rather only potentially useful evidence.
¶ 32 Having found the beer bottle only potentially useful evidence, we turn to the bad-faith
component. Throughout this case, defendant presented no evidence that Trooper Kurut discarded
the bottle of beer in bad faith. Indeed, at trial, he testified that he did not take the bottle as evidence
because he was “not allowed to per policy.” In Sutherland, 223 Ill. 2d at 237, our supreme court
rejected a defendant’s claim of bad faith on the part of the State in destroying a piece of evidence
where he “failed to offer anything, other than mere speculation.” Here, similarly, in defendant’s
motion in limine, he asserted in conclusory fashion that Trooper Kurut acted in bad faith.
Therefore, we have no basis to find that Trooper Kurut acted in bad faith.
¶ 33 Given that the beer bottle was merely potentially useful evidence and the lack of evidence
of bad faith on the part of Trooper Kurut, the trial court did not act arbitrarily, fancifully or
unreasonably in denying defendant’s motion in limine to bar reference to the beer bottle at trial.
Consequently, the court did not abuse its discretion in denying defendant’s motion in limine.
¶ 34 C. Sufficiency of the Evidence
¶ 35 Defendant next contends that the State failed to present sufficient evidence to prove him
guilty of improper lane usage, transportation or possession of open alcohol, wearing a headset
receiver while driving, and violating the minimum speed regulation.
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¶ 36 When a defendant challenges the sufficiency of the evidence, the reviewing court must
determine if, after viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the elements of the offense proven beyond a reasonable doubt. People v.
Gray, 2017 IL 120958, ¶ 35. All reasonable inferences from the evidence must be made in the
State’s favor. People v. Hardman, 2017 IL 121453, ¶ 37. Under this standard of review, it is not
the reviewing court’s role to retry the defendant. Gray, 2017 IL 120958, ¶ 35. And the reviewing
court will not substitute its judgment for that of the trier of fact on issues involving the credibility
of witnesses, the weight to be afforded to the trial evidence, the drawing of reasonable inferences
from the evidence and the resolution of conflicts within the evidence. Id. We may only reverse if
“the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt
of the defendant’s guilt.” Id.
¶ 37 1. Improper Lane Usage
¶ 38 One of the offenses that the trial court found defendant guilty of was improper lane usage
in violation of section 11-709(a) of the Vehicle Code (625 ILCS 5/11-709(a) (West 2018)). That
section of the Vehicle Code states that “[a] vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the driver has first ascertained
that such movement can be made with safety.” Id. In order convict a driver of this offense, there
must be evidence that that the “defendant deviated from his proper lane of travel and that no road
conditions necessitated the movement.” (Emphasis omitted.) Hackett, 2012 IL 111781, ¶ 28.
¶ 39 In this case, Trooper Kurut testified that he observed defendant’s vehicle move halfway
into the left lane, return to the center lane and then drift about a tire width into the right lane while
traffic was “[t]hin to moderate” and while his left turn signal was activated. Furthermore, the video
from Trooper Kurut’s dash camera showed defendant’s vehicle weaving between the lanes and
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showed that no road conditions necessitated his movement between lanes. Trooper Kurut’s
testimony, which the trial court found credible, in conjunction with the video evidence established
that defendant deviated from his proper lane of travel and that no road conditions necessitated the
movement. See id. Although defendant claims that the road conditions, i.e., Trooper Kurut’s
driving, necessitated his movement between lanes, such a question is one of fact for the trial court
to resolve. See Gray, 2017 IL 120958, ¶ 35. Indeed, defendant made this argument to the court
during trial, who disbelieved that his conduct was necessitated by Trooper Kurut’s driving.
Consequently, when viewing the evidence in this case in the light most favorable to the State, there
was sufficient evidence to prove that defendant committed the driving offense of improper lane
usage.
¶ 40 2. Transportation or Possession of Open Alcohol
¶ 41 Additionally, the trial court found defendant guilty of transportation or possession of open
alcohol (625 ILCS 5/11-502(a) (West 2018)). This section of the Vehicle Code prohibits a driver
from transporting, carrying, possessing or having “any alcoholic liquor within the passenger area
of any motor vehicle upon a highway *** except in the original container and with the seal
unbroken.” Id. “[S]ection 11-502(a) turns on the actual presence of alcohol, not merely the
container.” People v. Bailey, 2019 IL App (3d) 180396, ¶ 27. As previously noted, although the
statute prohibits transporting an open alcoholic container, the State need not introduce evidence of
chemical testing of the liquid in the container to sufficiently prove a defendant’s guilt for the
offense. See Hood, 343 Ill. App. 3d at 1257 rev’d in part on other grounds by Hood, 213 Ill. 2d
244; Angell, 184 Ill. App. 3d at 717. Additionally, transportation or possession of open alcohol is
a strict liability offense, and as such, the State “is not required to prove that the defendant, as the
driver of the vehicle, had knowledge of the existence of the open container of alcoholic liquor.”
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Angell, 184 Ill. App. 3d at 716-17. Furthermore, because the statute uses the word “any” to modify
“alcoholic liquor” (625 ILCS 5/11-502(a) (West 2018)), this demonstrates a legislative intent to
interpret the statute broadly. See People v. Rollins, 2021 IL App (2d) 181040, ¶ 43.
¶ 42 In this case, after pulling defendant over and approaching his vehicle, Trooper Kurut
observed that defendant had glassy and bloodshot eyes, his speech was slurred and there was a
“very strong odor of alcohol” emanating from his breath. These observations coupled with
defendant’s performance on various field sobriety tests led to Trooper Kurut arresting him for
driving while under the influence of alcohol. After arresting defendant, Trooper Kurut performed
an inventory of defendant’s vehicle in preparation for the vehicle being towed. In doing so, Trooper
Kurut found an “open partially empty bottle of Modelo beer” on the floor in the back row, well
within arm’s reach of the driver’s seat. Trooper Kurut then brought the bottle to his vehicle and
displayed it for the dash camera. In the dash camera video that was admitted into evidence at trial,
the bottle was open and Trooper Kurut gently shook the bottle, which caused some liquid at the
bottom to swirl around.
¶ 43 Trooper Kurut’s testimony of observing defendant with glassy and bloodshot eyes, slurred
speech and a strong odor of alcohol in conjunction with the video evidence showing liquid in the
beer bottle established that defendant was transporting “any alcoholic liquor” within the passenger
area of his vehicle (625 ILCS 5/11-502(a) (West 2018) (emphasis added)), and though the alcohol
was in its original container, the seal was broken. See People v. Gore, 115 Ill. App. 3d 1054, 1057
(1983) (sufficient evidence of the defendant’s guilt of the offense of illegal transportation of
alcoholic liquor where the police recovered open bottles that “were labeled Pabst Blue Ribbon
Beer” with liquid inside). While Trooper Kurut did not testify that he examined the contents of the
Modelo bottle, the circumstances were sufficient to support an inference that the liquid in the
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Modelo bottle was an alcoholic liquor. See People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009)
(noting that the trier of fact has the responsibility to weigh the evidence and “draw reasonable
inferences therefrom”).
¶ 44 It is true that, at trial, defendant asserted that the beer bottle was empty and explained that
he had the bottle because he “save[d] beer glasses” and gave them to a friend who made beer
glasses. But merely because defendant testified to this innocuous explanation for possession of the
beer bottle did not mean that the trial court had to accept it as true. “The trier of fact is not obligated
to accept all or any part of the defendant’s testimony, but may assess the probabilities, the
reasonableness of any defense offered and reject any or all of defendant’s account in favor of the
State’s circumstantial evidence of guilt.” People v. Nyberg, 275 Ill. App. 3d 570, 579 (1995).
Notably, despite explaining at trial why he had the beer bottle, defendant conceded he never
provided the explanation to Trooper Kurut. Moreover, while stopped by Trooper Kurut, defendant
admitted to drinking one beer, though, at the police station, he changed his drinking to one glass
of wine at a friend’s house earlier in the evening. As such, the trial court properly rejected
defendant’s explanation for possessing the beer bottle. And consequently, when viewing the
evidence in this case in the light most favorable to the State, there was sufficient evidence to prove
that defendant committed the driving offense of transportation or possession of open alcohol.
¶ 45 3. Wearing a Headset Receiver While Driving
¶ 46 The third offense that the trial court found defendant guilty of was wearing a headset
receiver while driving (625 ILCS 5/12-610 (West 2018)). As previously noted, the Vehicle Code
prohibits people from wearing a “headset receivers while driving” (id.), which is defined as “[a]ny
device, other than a hearing aid, designed to be worn on a person’s head that enables the wearer to
hear or receive electronic communications.” Id § 1-125.7. Although there are some exceptions,
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none of those are implicated in this case. See id. § 12-610. Moreover, defendant has not argued
that the headphones he had in his vehicle did not come under the definition of “headset receiver”
in the Vehicle Code, thereby tacitly admitting they were considered a headset receiver.
¶ 47 Defendant’s guilt for this offense largely rested upon a credibility contest between him,
who testified that he was not wearing headphones while driving, and Trooper Kurut, who testified
that he observed defendant wearing headphones while driving. As his guilt for this offense was
essentially a credibility contest, we must defer to the trial court’s determination that Trooper Kurut
testified credibly to his observation of defendant wearing a headset receiver while driving. See
Gray, 2017 IL 120958, ¶ 35. However, we do note that, when the court rendered its verdict, it
stated that the video evidence showed defendant pull the headphones off of his head while driving.
While we cannot say conclusively that defendant did this while driving based on our review of the
video evidence, this finding by the court merely buttressed Trooper Kurut’s observation, which by
itself was sufficient evidence of defendant’s guilt given that Trooper Kurut was driving directly
behind defendant. See People v. Thompson, 2016 IL App (1st) 133648, ¶ 34 (“The testimony of a
single eyewitness may suffice to convict if the witness is credible and was able to view the
defendant under conditions permitting a positive identification.”).
¶ 48 Though defendant argues that Trooper Kurut did not confiscate the headphones or take any
photographs of the headphones, defendant does not contest that he was in possession of them while
driving. The fact that Trooper Kurut did not confiscate the headphones or take photographs of
them does not preclude a finding of guilt for this driving offense. Consequently, when viewing the
evidence in this case in the light most favorable to the State, there was sufficient evidence to prove
that defendant committed the driving offense of wearing a headset receiver while driving.
¶ 49 4. Violating the Minimum Speed Regulation
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¶ 50 The final offense of which the trial court found defendant guilty was for violating the
minimum speed regulation (625 ILCS 5/11-606(a) (West 2018)). That section of the Vehicle Code
prohibits a person from driving his vehicle “at such a slow speed as to impede or block the normal
and reasonable movement of traffic except when reduced speed is necessary for safe operation of
his vehicle or in compliance with law.” Id. Our research reveals no decisions from an Illinois court
involving the sufficiency of the evidence to establish a violation of section 11-606(a) of the Vehicle
Code. However, multiple decisions have involved whether police officers had a valid basis to stop
a vehicle for violating that section. See People v. Brand, 71 Ill. App. 3d 698, 700-01 (1979); People
v. Hutson, 45 Ill. App. 3d 977, 979 (1977). And in both cases, this court not only focused on the
defendants’ speed but also whether their slow driving disrupted other drivers. See Brand, 71 Ill.
App. 3d at 700-01 (finding there was no valid basis to stop the defendant for violating the minimum
speed regulation where, although “a very slowly driven vehicle may pose a hazard to other
motorists who operate their vehicles at a faster rate [citation], the record [did] not demonstrate that
defendant’s manner of driving resulted in a substantial danger to other motorists”); Hutson, 45 Ill.
App. 3d at 979 (finding there was a valid basis to stop the defendant for violating the minimum
speed regulation because he was driving 20 to 25 miles per hour on the highway where the
minimum posted speed limit was 45 miles per hour and his slow driving caused “10 to 15 cars [to
be] backed up behind him”).
¶ 51 Here, Trooper Kurut testified that defendant’s vehicle was driving much slower than the
posted minimum speed limit of 45 miles per hour. Such testimony may have been sufficient
evidence of guilt if defendant had been charged under section 11-606(b) of the Vehicle Code (625
ILCS 5/11-606(b) (West 2018)), which requires the State merely to prove that a defendant drove
below a minimum posted speed limit imposed by the Department of Transportation of the State of
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Illinois, the Illinois State Toll Highway Authority or other local authority. But, in this case,
defendant was charged under section 11-606(a) of the Vehicle Code (id. § 11-606(a)), which
requires the State to prove that a defendant drove “at such a slow speed as to impede or block the
normal and reasonable movement of traffic except when reduced speed is necessary for safe
operation of his vehicle or in compliance with law.” (Emphasis added.) And Trooper Kurut never
testified that defendant’s driving impacted others around him. In fact, when defendant’s attorney
asked Trooper Kurut on cross-examination whether defendant’s driving “interfere[d] with any
traffic,” Trooper Kurut stated that “[t]here w[ere] no cars directly near in his vicinity.” If only
Trooper Kurut’s testimony had been admitted as evidence at trial, it would be difficult to find
sufficient evidence that defendant drove at such a slow speed as to impede or block the normal and
reasonable movement of traffic.
¶ 52 But, in addition to Trooper Kurut’s testimony, the State introduced his dash camera video,
which the trial court partially relied on in finding defendant guilty of the offense. And in that video,
defendant appeared to impede or block a vehicle in the right lane from its normal course of driving.
As defendant drifted into the right lane well before Trooper Kurut began tailing him, another
vehicle already in the right lane slowed down as it approached defendant’s vehicle. Once defendant
returned to the center lane, that other vehicle sped up and passed defendant. When viewing the
video evidence and Trooper Kurut’s testimony in the light most favorable to the State, it
sufficiently proved that defendant impeded or blocked the normal and reasonable movement of
traffic. Yet, doing so is not automatically illegal, as a driver could do so “when reduced speed is
necessary for safe operation of his vehicle or in compliance with law.” Id. Indeed, defendant
claimed at trial and again on appeal that his driving was only in response to Trooper Kurut’s
driving. Such a question, however, is one of fact for the trial court to resolve (see Gray, 2017 IL
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120958, ¶ 35), and the court rejected defendant’s claim at trial. Consequently, there was sufficient
evidence to prove that defendant violated the minimum speed regulation.
¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 55 Affirmed.
¶ 56 PRESIDING JUSTICE GORDON, dissenting:
¶ 57 I agree with the majority’s decision in this case except for the conviction of transportation
or possession of alcohol and I must respectfully dissent as to that conviction. The trooper testified
that the beer bottle was mostly empty, although there was some liquid at the bottom of the bottle,
but the trier of fact did not know whether that was a few drops or more. The trooper testified he
made a video of the bottle but then disposed of the bottle. The video was not helpful to show what
amount of liquid, if any, was in the bottle, whether it was a few drops or more. To find a defendant
guilty beyond a reasonable doubt of transportation or possession of alcohol under the evidence
presented in this case would be against the manifest weight of the evidence, especially when the
bottle was thrown away by the trooper and where defendant testified the bottle was empty.
¶ 58 For the foregoing reasons, I must respectfully dissent.
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