2023 IL App (1st) 211632-U No. 1-21-1632 Order filed May 17, 2023 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 Plaintiff-Appellee, ) Cook County. ) ) Nos. YH102251 v. ) YH102252 ) YH102253 ) YH102254 ) MARCELLAS COLEMAN, ) Honorable ) Kevin O’Donnell, Defendant-Appellant. ) Judge, presiding.
JUSTICE BURKE delivered the judgment of the court. Presiding Justice McBride and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: Defendant’s two convictions for leaving the scene of an accident resulting in damage to an attended vehicle are reversed where the State did not prove beyond a reasonable doubt that he caused damage to one vehicle or that the other vehicle was attended.
¶2 Following a bench trial, the trial court found defendant Marcellas Coleman guilty of one
count of driving while under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West No. 1-21-1632
2020)), one count of driving on a suspended or revoked license (625 ILCS 5/6-303 (West 2020)),
and two counts of leaving the scene of an accident resulting in damage to an attended vehicle (625
ILCS 5/11-402(a) (West 2020)). The trial court sentenced defendant to four concurrent terms of
300 days in jail. On appeal, defendant contends that his convictions for leaving the scene of an
accident resulting in damage to an attended vehicle must be reversed because the State failed to
prove beyond a reasonable doubt that he caused damage to any other vehicle or that any such
vehicle was attended. For the reasons that follow, we reverse the two convictions for leaving the
scene of an accident resulting in damage to an attended vehicle.
¶3 The State charged defendant with one count of DUI, one count of driving on a suspended
or revoked license, and two counts of leaving the scene of an accident resulting in damage to an
attended vehicle. The case proceeded to a bench trial where the State presented the testimony of
two eyewitnesses and two police officers.
¶4 Zachary Schwartz, who was 18 years old at the time of trial, testified that around 11:45
p.m. on August 8, 2020, he was driving to a friend’s house in Elk Grove Village when he noticed
a vehicle following very close behind him. The driver of the vehicle rammed his vehicle into
Schwartz’s and followed Schwartz for a couple of blocks. When Schwartz arrived at his
destination, he called his friends inside the house and asked them to come outside because he had
been followed. When his friends emerged from the house, Schwartz exited his vehicle. The “person
behind” Schwartz, whom Schwartz identified in court as defendant, stepped out of his vehicle as
well.
¶5 Schwartz testified that as he started walking away, defendant followed him on foot.
Defendant, who was talking on a phone, said, “I have him right here,” but “then the rest was a slur
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as he went around his vehicle and fell into a tree.” Eventually, defendant re-entered his vehicle.
Schwartz and others approached him and asked him general questions, but defendant refused to
answer and mumbled. Schwartz testified that defendant got into his car, backed up into another
car 3 times and then was finally able to get around the car but hit “his buddy’s car’s side mirror”.
Defendant then drove off. He did not stop when he hit the second car and did not return. He further
testified that neither of the vehicles that defendant hit sustained any damage. Schwartz and others
called the police, told them what happened, and gave them a description of defendant and his
vehicle.
¶6 On cross-examination, Schwartz clarified that defendant did not hit his vehicle while they
were both driving. Rather, defendant hit the bumper of Schwartz’s car after they both had parked.
He also explained that the group who emerged from the house was comprised of two of his friends,
their two parents, and two more adults. When asked whether “there was no sustained damage” to
the side mirror of his friend’s truck, Schwartz answered, “No, ma’am.”
¶7 Kevin McAloon testified that on the night in question, he was visiting his sister in Elk
Grove Village when “the kids came storming in the house in a panic and said that a guy had
followed them home and he had hit their car.” McAloon and others ran outside, where McAloon
saw defendant, whom he identified in court, sitting in the driver’s seat of a vehicle stopped in the
middle of the road. McAloon described defendant as “a little disheveled” and said he was “in a
panic” and not “acting normal.” McAloon approached defendant; his wife took a photograph of
McAloon standing “directly next to” defendant’s vehicle while defendant was in the driver’s seat.
McAloon estimated that the other people outside were “anywhere from 6 to 20 feet” from where
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he was located next to defendant’s window. He later clarified that there were 10 to 15 people
outside, scattered “anywhere from 5 feet up to 20 feet up to the house on the front porch.”
¶8 McAloon asked defendant what was going on, defendant asked if there was a problem, and
McAloon answered, “[Y]es, if you’re following people home as well as hitting cars.” At that point,
defendant put his car in gear and “took off down the block hitting a vehicle on his way down the
block.” Defendant did not stop or come back after hitting that vehicle. McAloon did testify that
there was damage to the parked vehicle, but he did not identify what type of vehicle, what type of
damage or who owned the vehicle.
¶9 Elk Grove Village police officer Mark Johnson testified that he was dispatched to the scene
due to “a traffic crash.” He spoke with several “subjects” who described an incident in which
someone “struck two of the vehicles parked in front of their house” and fled the scene. They gave
a description of the vehicle and its driver. Johnson relayed the description of the vehicle to other
officers, who located it several blocks away. When asked if he noticed any damage on the vehicles,
he stated, “I believe one of the vehicles was struck in the rear and then also I think on the side of
the vehicle when the vehicle drove away.” He further testified that the damage was a scuff mark
on one vehicle and the other had no damage.
¶ 10 Elk Grove Village police officer Palmese testified to pulling defendant over several blocks
from the reported incident, based on the description relayed by dispatch. 1 Palmese noted that
defendant’s vehicle “had front end damage.” Defendant’s speech was slurred and his eyes were
red, bloodshot, and glassy. In addition, his breath had a strong odor of alcoholic beverage and,
when he exited his vehicle, his footing was unsure and he stumbled. Defendant refused to take
1 Officer Palmese’s first name does not appear in the record.
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field sobriety tests or submit to a breathalyzer. He provided his driver’s license, which Palmese
determined through dispatch was revoked. Palmese subsequently arrested defendant. A certified
abstract of defendant’s driving record and video footage of the traffic stop captured by a camera
in Palmese’s squad car were entered into evidence.
¶ 11 Defendant made a motion for a directed finding, which the trial court denied without
comment. Defendant did not testify or present any evidence.
¶ 12 Following closing arguments, the trial court found defendant guilty on all counts, finding
the evidence overwhelming. Defendant filed a motion for a new trial arguing, among other things,
that the State failed to prove him guilty beyond a reasonable doubt. Following a hearing, the trial
court denied the motion. Noting that defendant had three prior convictions for DUI, the trial court
sentenced him to four concurrent terms of 300 days in the Cook County Department of Corrections.
Defendant filed a timely notice of appeal.
¶ 13 On appeal, defendant solely challenges the sufficiency of the evidence to support his two
convictions for leaving the scene of an accident resulting in damage to an attended vehicle.
¶ 14 When reviewing the sufficiency of the evidence, the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979). The credibility of the witnesses, the weight to be given their
testimony, and the resolution of any conflicts in the evidence are within the province of the trier
of fact, and a reviewing court will not substitute its judgment for that of the trier of fact on these
matters. People v. Brooks, 187 Ill. 2d 91, 131 (1999). The testimony of a single witness, if positive
and credible, is sufficient to convict. People v. Smith, 185 Ill. 2d 532, 541 (1999). A reviewing
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court will not retry the defendant and must draw all reasonable inferences in favor of the
prosecution. People v. Harris, 2018 IL 121932, ¶ 26.
¶ 15 Circumstantial evidence is sufficient to sustain a conviction, so long as it satisfies the fact
finder beyond a reasonable doubt of the elements of the crime charged. People v. Hall, 194 Ill. 2d
305, 330 (2000). The trier of fact need not be satisfied beyond a reasonable doubt as to each link
in the chain of circumstances; rather, “[i]t is sufficient if all of the evidence taken together satisfies
the trier of fact beyond a reasonable doubt of the defendant’s guilt.” Id. Reversal is justified where
the evidence is “so unsatisfactory, improbable or implausible” that it raises a reasonable doubt as
to the defendant’s guilt (People v. Slim, 127 Ill. 2d 302, 307 (1989)) or where proof of an element
is wholly lacking (People v. Robinson, 2013 IL App (2d) 120087, ¶ 11).
¶ 16 To prove defendant guilty of leaving the scene of an accident resulting in damage to an
attended vehicle, the State was required to show that he failed to comply with section 11-402(a)
of the Illinois Vehicle Code (Code), which provides, in relevant part, as follows:
“(a) The driver of any vehicle involved in a motor vehicle accident resulting only
in damage to a vehicle which is driven or attended by any person shall immediately stop
such vehicle at the scene of such motor vehicle accident or as close thereto as possible, but
shall forthwith return to and in every event shall remain at the scene of such motor vehicle
accident until the requirements of Section 11-403 [titled ‘Duty to give information and
render aid’] have been fulfilled.” 625 ILCS 5/11-402(a) (West 2020).
¶ 17 Defendant contends that the State failed to prove two elements of both counts of the
charged offense: (1) that he caused damage to any other vehicles, and (2) that any other such
vehicles were attended. We address these elements in turn.
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¶ 18 Regarding damage resulting from an accident, defendant notes that the entirety of the
State’s evidence on this element was provided via the testimony of three witnesses: Schwartz,
McAloon, and Officer Johnson. He notes that Schwartz stated no damage was done to either of the
two vehicles he saw defendant hit, which were Schwartz’s vehicle and his friend’s truck. McAloon
stated there was “damage to the vehicle that was, that was parked,” but did not identify what the
damage was, where on the vehicle it was located, whether the damage was present prior to the
incident, or which parked vehicle sustained damage. Johnson testified that he saw a “scuff mark”
on an unspecified parked vehicle but did not know when that mark had been made. Observing that
the State presented no photographs of damage, invoices for repairs, or testimony from an owner
or driver of a vehicle claiming that damage was done to his car, defendant asserts that the
testimonial evidence failed to prove he caused damage to two vehicles to sustain his two
convictions. He maintains that the State cannot meet its burden of proof on an essential element of
an offense using vague or conclusory statements or evidence and cannot rely on a speculative
inference based on vague testimony.
¶ 19 The State counters that the evidence at trial was sufficient to prove that both Schwartz’s
vehicle and Schwartz’s friend’s truck were damaged. Regarding Schwartz’s vehicle, the State
argues that given Schwartz’s testimony that defendant struck his rear bumper twice and the absence
of evidence that any other vehicle was struck in the rear, “Johnson’s testimony that he observed
minor damage to the rear of one of the vehicles surely referred to Schwartz’s car.” The State
asserts, “At a minimum, the inference that Johnson’s testimony referred to Schwartz’s car was
reasonable, and therefore must be drawn on sufficiency review.” The State further argues that
Schwartz’s testimony that he was unaware of any damage to his vehicle is irrelevant, as the
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testimony of a single witness, namely, Johnson, is sufficient to prove that Schwartz’s vehicle was
damaged.
¶ 20 Regarding Schwartz’s friend’s truck, the State highlights McAloon’s testimony that
defendant hit a vehicle on his way “down the block,” after which McAloon observed damage to
the vehicle “that was parked.” The State argues, “Because it is clear from context that McAloon
witnessed only the second crash into the side mirror of Schwartz’s friend’s truck—not the earlier
crashes into Schwartz’s rear bumper—McAloon’s testimony that he observed ‘damage’ to a
‘parked’ vehicle [record citation] could only have referred to the truck.”
¶ 21 As with Schwartz’s vehicle, the State argues, “At a minimum, the inference that
McAloon’s testimony regarding damage referred to the truck was a reasonable one, and thus ‘must’
be drawn on sufficiency review.” The State concludes that given that mandatory inference,
McAloon’s testimony that he observed damage to the vehicle “that was parked” was sufficient to
prove that Schwartz’s friend’s truck was damaged. Finally, the State argues that Johnson’s
testimony that he saw damage “on the—the vehicles that were parked on the roadway” referenced
both Schwartz’s vehicle and his friend’s truck and, therefore, was sufficient to prove that the truck
was damaged. The State asserts that Johnson’s testimony on cross-examination that only one
vehicle sustained damage is irrelevant, as the “light-most-favorable standard” requires a reviewing
court to construe the evidence in a way that supports the prosecution’s case.
¶ 22 After reviewing the evidence admitted at trial in the light most favorable to the State, as
we must, we conclude it was sufficient to establish that defendant hit and damaged one parked
vehicle. At trial, McAloon testified that he saw defendant hit a vehicle as he drove off down the
block. “[A]fter the vehicle was hit,” McAloon noticed damage to the vehicle “that was parked,”
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but not to the vehicle that was driving away. Where McAloon’s testimony was positive and
credible, a rational trier of fact could reasonably conclude from his testimony alone that defendant
caused damage to a vehicle. See Smith, 185 Ill. 2d at 541. On the other hand, we find that the
evidence was insufficient to prove that defendant damaged Schwartz’s vehicle. Schwartz
specifically testified that although defendant hit his vehicle, it sustained no damage. McAloon did
not speak to whether there was any damage to Schwartz’s vehicle. And, contrary to the State’s
assertion, Johnson did not testify “that he observed minor damage to the rear of one of the
vehicles.” Johnson’s testimony, read as a whole, reveals that he was told two parked vehicles were
struck, one “in the rear” and the other “on the side.” He then observed damage in the form of a
“scuff mark” on only one of the parked vehicles. He did not specify which parked vehicle was
scuffed or where the scuff was located.
¶ 23 While all reasonable inferences must be drawn in the favor of the State (Harris, 2018 IL
121932, ¶ 26), a reviewing court may not allow unreasonable inferences (People v. Cunningham,
212 Ill. 2d 274, 280 (2004)). Given McAloon’s testimony that defendant damaged a vehicle that
was parked down the block, it is reasonable to infer that the damage Johnson observed was to that
vehicle. However, in light of Schwartz’s unequivocal testimony that defendant did not damage his
vehicle, it would be unreasonable to infer from Johnson’s testimony that defendant damaged
Schwartz’s vehicle as well. We cannot find that the State presented sufficient evidence to prove
defendant caused damage to Schwartz’s vehicle. Because proof of an essential element of the
offense is lacking, we must reverse one of defendant’s convictions for leaving the scene of an
accident resulting in damage to an attended vehicle—that is, Schwartz’s vehicle—and vacate the
corresponding sentence. See People v. Murdock, 321 Ill. App. 3d 175, 177 (2001).
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¶ 24 Having determined that a rational trier of fact could reasonably conclude that defendant
caused damage to one vehicle, we turn to the issue of whether the evidence supports a conclusion
that the vehicle was “attended.” Defendant argues that the State presented no evidence suggesting
that any of the people present at the scene were anything more than bystanders with relation to any
vehicle that was damaged. Finding no Illinois cases discussing the “attended” element, defendant
relies on a case decided by the Iowa Supreme Court, State v. Tarbox, 739 N.W.2d 850 (Iowa 2007),
in support of his position.
¶ 25 In Tarbox, the defendant drove into a cement wall, causing damage solely to his own
vehicle, and fled the scene on foot. Id. at 852. Relevant here, he was charged with leaving the scene
of an accident resulting in “damage to a vehicle which is driven or attended by a person” without
providing his name, address, and other information “to the person struck, the driver or occupant
of, or the person attending the vehicle involved in the accident.” Id. at 852-53 (quoting Iowa Code
§ 321.263(1)). The State argued that responding police officers and eyewitnesses to the defendant’s
crash should be considered persons “attending the vehicle.” Id. at 854-55. The Iowa Supreme Court
disagreed.
¶ 26 The Tarbox court held that, as used in the statute at issue, the word “attending” meant “to
be present with.” Id. at 854. The court noted that a separate statute set forth the duty of a driver
who collided with an unattended vehicle, which was to locate the owner or operator of the vehicle
or leave a written note in a conspicuous place on the struck vehicle. Id. (citing Iowa Code §
321.264). The court held, “The dichotomy the legislature sets out between attended vehicles in
section 321.263 and unattended vehicles in section 321.264 confirms that ‘attending’ refers to
someone who is present with the vehicle rather than one who comes upon the vehicle after the
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fact.” Id. As such, the Tarbox court found that the responding officers and eyewitnesses were not
attending the defendant’s vehicle within the meaning of the statute defining the offense. Id.
¶ 27 Defendant argues that, like the Iowa statute, nothing in section 11-402(a) indicates that
“mere bystanders or witnesses” should be considered to be “attending” a vehicle in which they
have no direct interest. 625 ILCS 5/11-402(a) (West 2020). He notes that the Illinois legislature
has set out the same dichotomy between “attended” and “unattended” vehicles as exists in Iowa.
Compare 625 ILCS 5/11-402(a) (West 2020) (setting forth duties of drivers who damage an
attended vehicle) with 625 ILCS 5/11-404(a) (West 2020) (setting forth duties of drivers who
damage an unattended vehicle). As such, he asserts that the same conclusion, i.e., that bystanders
are not “attending” a vehicle, should follow.
¶ 28 The State speculates that the damaged vehicle was Schwartz’s friend’s truck and asserts
that it was attended by (1) Schwartz, who was a friend of the truck’s owner and a guest at the house
outside of which the truck was parked; (2) McAloon, who was a guest at the house, was related to
one of its occupants, and approached defendant and questioned him about hitting cars; (3)
McAloon’s wife, who took the photograph of McAloon talking to defendant; and (4) other people
who emerged from the house to investigate the incident and question defendant. The State
maintains that Schwartz and McAloon, in particular, cannot be considered “bystanders” as to the
truck because Schwartz was a friend of the truck’s owner and McAloon approached defendant and
confronted him about hitting cars. Further, the State argues that the record “strongly suggests” the
truck’s owner was present at the house and was among those who came outside. The State
concludes, “At a minimum, the inference that the truck was attended by one or more persons was
a reasonable one, and therefore it must be drawn here.” However, the State did not introduce the
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name of Schwartz’s friend who supposedly owned the truck, nor did it present evidence that the
truck was associated with the residential address at which this incident took place.
¶ 29 Finally, the State asserts that Tarbox does not suggest a contrary result. The State argues
that Tarbox is inapposite here because unlike the State in that case, it is not claiming that bystanders
were attending defendant’s own vehicle. Moreover, the State argues that Tarbox’s holding that the
term “attending” refers to someone who is present with the vehicle, rather than someone who
comes upon the vehicle after the fact, is consistent with its position that the vehicle defendant
struck was attended by persons who were present at the scene during the crash.
¶ 30 After reviewing the record in the light most favorable to the State, we cannot find that the
State proved the damaged vehicle was “attended.” As an initial matter, it is not clear from the
record that the damaged vehicle was Schwartz’s friend’s truck. Schwartz testified that, as
defendant drove off, he hit the parked truck. Although McAloon testified that defendant caused
damage to a parked vehicle as he drove off, he did not identify the damaged vehicle with any
particularity. While his testimony was sufficient to establish that defendant caused damage to a
parked vehicle, nothing in the record ties the parked vehicle McAloon saw defendant hit to that
specific truck.
¶ 31 Regardless, even accepting, arguendo, that the parked vehicle McAloon saw defendant
damage was Schwartz’s friend’s truck, we nevertheless find that the evidence at trial was
insufficient to establish that the truck was “attended” as contemplated by section 11-402(a). We
agree with the Tarbox court’s conclusion that a person who is attending a vehicle is someone who
is “present with” the vehicle. Tarbox, 739 N.W.2d at 854. Here, the record does not support a
conclusion that anyone was “present with” the damaged vehicle.
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¶ 32 Schwartz testified that, during the incident, a group of people emerged from the house. He
described these people as two of his friends, their two parents, and two more adults, but he did not
identify any of these people as being the owner or driver of the truck. Similarly, although McAloon
testified there were 10 to 15 people outside, he did not identify any of these people other than his
wife. More important, neither Schwartz nor McAloon placed any person “down the block,” inside
or beside the parked vehicle that defendant hit and damaged. In fact, McAloon placed everyone
who was outside in an area between the house and the spot where he confronted defendant, with
some of them on the front porch. All the people referenced by Schwartz and McAloon were present
at the scene, but we cannot agree that they were present with the damaged vehicle. The record
contains no evidence that the damaged vehicle was “attended.”
¶ 33 We decline to draw an inference in its favor that the damaged vehicle was attended by one
or more persons. “[A] reviewing court’s obligation to view the evidence in the light most favorable
to the prosecution does not mean that the reviewing court construes the record to contain evidence
that the State failed to produce.” People v. Carter, 2021 IL 125954, ¶ 42. Here, the State failed to
produce evidence that the vehicle defendant damaged was “attended” within the meaning of
section 11-402(a). Because proof of an essential element of the offense is lacking, we must reverse
defendant’s remaining conviction for leaving the scene of an accident resulting in damage to an
attended vehicle and vacate the corresponding sentence. See Murdock, 321 Ill. App. 3d at 177.
¶ 34 For the reasons explained above, we reverse defendant’s convictions for leaving the scene
of an accident resulting in damage to an attended vehicle and vacate his corresponding sentences.
All other convictions and sentences are affirmed.
¶ 35 Reversed.
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