2021 IL App (1st) 190332-U No. 1-19-0332 Order filed April 29, 2021 Fourth 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. ) v. ) No. 38218859 ) FRANK THOMAS, ) Honorable ) John Curry, Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Justice Reyes concurred in the judgment. Presiding Justice Gordon dissented.
ORDER
¶1 Held: We affirm defendant’s conviction for driving under the influence of alcohol over his contention that the State’s evidence was insufficient to prove the corpus delicti of the offense.
¶2 Following a bench trial, defendant Frank Thomas was convicted of driving under the
influence of alcohol in that he was driving or in actual physical control of a vehicle while his blood
alcohol concentration was 0.08 or more in violation of section 11-501(a)(1) of the Vehicle Code No. 1-19-0332
(Code) (625 ILCS 5/11-501(a)(1) (West 2014)). He contends his conviction should be reversed
because the evidence was insufficient to satisfy the corpus delicti rule, i.e., that the only evidence
that he was driving or in physical control of the vehicle was his own statement. For the following
reasons, we affirm. 1
¶3 In connection with a July 2014 accident, defendant was charged by citation with two counts
of driving under the influence of alcohol, including one count (count I) for driving under the
influence of alcohol in violation of section 11-501(a)(2) of the Code and a separate count
(count III, the only count at issue in this appeal) for driving with a blood alcohol concentration of
0.08 or more in violation of section 11-501(a)(1) of the Code. Defendant was also charged with
one count of driving with a suspended license (count II) and one count of improper lane usage
(count IV).
¶4 Defendant filed a petition to rescind the statutory summary suspension of his license, which
was granted following a hearing. Defendant subsequently executed a jury waiver and proceeded
to a bench trial.
¶5 At trial, Illinois State Trooper Gene Mason testified that, at 2:25 a.m. on July 27, 2014, he
was dispatched to the scene of a vehicle crash near the Kedzie Avenue exit ramp on the I-290
expressway. When he arrived, he saw Illinois Department of Transportation (IDOT) workers
removing two vehicles, a Chrysler, and a Jeep. Mason had previously seen the Jeep at the same
location approximately two hours earlier. Mason recalled that the Jeep was abandoned and had no
occupants when he first saw it.
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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¶6 After Mason spoke to IDOT workers at the crash scene, Mason went to Mount Sinai
Hospital “to speak with the driver” of the Chrysler. He found defendant in a hospital bed, after
asking nurses “if they had someone come in from a crash that was at the location of 290 and
Sacramento or Kedzie.” Mason identified defendant in court. Mason testified that he spoke to
defendant in the hospital when there was no one else in the room. Defendant told Mason that he
was driving, he was cut off by someone and he swerved out of the way, leading him to strike the
abandoned Jeep. Mason noticed that defendant had bloodshot and glassy eyes, and he smelled
alcohol on defendant’s breath. Based upon Mason’s observations, training, and experience, he
believed defendant was driving while under the influence of alcohol and was impaired.
¶7 During Mason’s testimony, the State introduced a stipulation that blood was drawn from
defendant and tested in a lab at the hospital. The test result was a .151 blood alcohol concentration.
¶8 On cross-examination, Mason was shown the “ICASE” report (Defense Exhibit 1) he had
prepared regarding the incident.2 Mason acknowledged that the report did not state that defendant
admitted that he was driving the vehicle. Mason agreed that no one told him that defendant was
driving the Chrysler, and that there were no paramedics when he arrived at the accident scene.
Mason did not know when IDOT workers arrived at the scene.
¶9 Mason acknowledged that, in his investigation, he learned that the Chrysler was not owned
by defendant. He agreed that he never followed up with the registered owner.
¶ 10 On redirect examination, the State asked Mason to read from his “ICASE” report as to
what defendant told him. Mason testified: “It says, ‘Thomas stated he was cut off by a motorist
and swerved to the right to avoid a collision.’ ” Also, on redirect, Mason testified that he wrote in
2 The trial exhibits are not contained in the record on appeal.
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the “Alcohol/Drug Influence Report” (Defense Exhibit 3) that: “Driver Unit 1 stated he was cut
off by a motorist, and he swerved [to] the right to avoid a collision, which caused him to crash the
front of Unit 1 into the rear of Unit 2.” On re-cross examination, Mason acknowledged that he did
not use the pronoun “I” in the reports in recounting what defendant told him. On re-direct, Mason
testified that the pronoun “he” in the ICASE report referred to defendant.
¶ 11 Following Mason’s testimony, the State nol-prossed count II, the charge of driving with a
suspended license. Defense counsel then moved for a directed finding, arguing inter alia, there
was insufficient evidence that defendant was driving the vehicle. Counsel argued that “the corpus
delicti of a charged offense cannot be proved by the declarant’s admission alone.”
¶ 12 The court granted the motion for directed finding with respect to count I and count IV.
However, the court denied defendant’s motion with respect to count III.
¶ 13 After the court’s ruling, defendant testified that he remembered “not much” about the
evening of the accident. He recalled being in the passenger seat while the car was driven by the
vehicle’s owner, Walter Thornton. Defendant testified: “I remember when we was getting on the
ramp, coming down the ramp. And once we came off that ramp, I don’t really remember anything
until I woke up in the hospital.” Defendant remembered seeing Mason in the hospital but denied
that they had a conversation. Defendant specifically denied that he was driving on the night of the
crash.
¶ 14 On cross-examination, defendant testified that he remembered getting on a ramp to the
expressway and vaguely recalled an ambulance. Defendant said that he and Thornton were coming
from a party on the night of the accident and testified: “We had been drinking all that day since
2:00 o’clock that evening.” He also acknowledged he had a blood alcohol concentration of .151.
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¶ 15 After closing arguments, the court found defendant guilty of count III, explaining:
“The only remaining charge in this case is the charge of violation of 501(a)(1), and
that is operating a motor vehicle in excess of .08, and the Defense argues that the
trooper was impeached. *** I don’t believe the trooper was impeached.
Clearly, the trooper did not testify with absolute precision and accuracy
regarding his investigation *** however, the trooper quite convincingly and
directly testified that he tracked down the Defendant to his hospital bed, had a
conversation with the Defendant, and that the Defendant stated that he swerved his
vehicle to avoid an accident on the expressway, and thereafter collided with the
abandoned car.
The trooper very clearly stated that the use of the word he in his report meant
the Defendant, did not mean some other third person.”
The court acknowledged defendant’s testimony that he was not the driver, but the court stated it
had “questions regarding the Defendant’s credibility given his admission that he had been drinking
all day, and that this blood level indicated intoxication.” The court remarked that it did not give a
“tremendous amount of weight” to defendant’s testimony.
¶ 16 Defendant filed a motion to reconsider, in which he argued that the State failed to prove
the corpus delicti of the offense. On June 20, 2016, the trial court denied defendant’s motion to
reconsider. In doing so, the court explained that it found sufficient corroboration of defendant’s
admission that he had been driving to satisfy the corpus delicti rule:
“[T]he crash scene disclosed two vehicles, one which had been abandoned
on the roadway, and the other that had been driven and had collided with the
abandoned vehicle.
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Trooper Mason was summoned to the scene. Those circumstances were
described to him, and he conducted his investigation.
Immediately, he endeavored, as he testified, to find and interview the driver
of the vehicle that collided with the abandoned vehicle. His inquiries resulted in
him being led to the hospital and being put in the presence of the Defendant. So I
find that is sufficient circumstantial evidence to support that the Defendant, who
was presented to Trooper Mason as the person who is the only driver in this two-
car incident, the other being abandoned, was sufficient for an identification of the
driver.”
¶ 17 On July 19, 2016—before sentence was imposed—defendant filed a notice of appeal
(appeal no. 1-16-2037). At a number of subsequent hearings, the parties discussed whether the trial
court could conduct any substantive proceedings. At a November 10, 2016 hearing, the State
expressed its position that the trial court had lost jurisdiction. The trial court acknowledged that it
could not sentence defendant until the case returned to its jurisdiction.
¶ 18 On August 10, 2017, defendant moved to dismiss appeal no. 1-16-2037. This court granted
that motion on August 18, 2017, and this court’s mandate was issued on December 20, 2017.
¶ 19 After the case returned to the circuit court, it was continued several times in 2018.
On January 2, 2019, the court sentenced defendant to 18 months’ supervision, a victim impact
panel, “significant C treatment,” and mandatory fees and costs of $1329. 3 On January 17, 2019,
defendant filed a notice of appeal.
3 Although defendant’s trial proceeded before Hon. John Curry, defendant was sentenced by Hon. Elizabeth Ciaccia-Lezza.
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¶ 20 On appeal, defendant argues that, under the corpus delicti rule, the State’s evidence was
insufficient to support his conviction under section 11-501(a)(1) of the Vehicle Code. He contends
that the only evidence that he was driving or in actual physical control of the Chrysler was
defendant’s statement to Mason in the hospital. Defendant urges that, pursuant to the corpus delicti
rule, the court could not rely on that admission to find him guilty, absent independent corroborating
evidence that he was driving or otherwise had control of the car. Defendant argues that there was
no such independent evidence, requiring reversal of his conviction.
¶ 21 Generally, when reviewing a challenge to the sufficiency of the evidence, this court
considers “whether, viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis
in original; internal quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 114 (2007).
The reviewing court “must allow all reasonable inferences from the record in favor of the
prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004). We will not “retry the defendant
or substitute [our] judgment for that of the trier of fact on questions involving the weight of the
evidence, conflicts in the testimony, or the credibility of witnesses. [Citation.]” People v. Corral,
2019 IL App (1st) 171501, ¶ 71.
¶ 22 Defendant was convicted under the portion of section 11-501 of the Vehicle Code making
it unlawful for a person to “drive or be in actual physical control of any vehicle” while the alcohol
concentration in the person’s blood or breath is 0.08 or more. 625 ILCS 5/11-501(a)(1)
(West 2014). Defendant does not contest that his blood alcohol level was above .08. Instead, he
attacks the State’s proof that he was driving or in actual physical control of the Chrysler. Defendant
urges that, under the corpus delicti rule, his alleged statement to Mason was insufficient to prove
the offense, as the State did not present corroborating evidence.
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¶ 23 Our supreme court has explained the corpus delicti rule as follows:
“The corpus delicti of an offense is simply the commission of a crime.
Along with the identity of the person who committed the offense, it is one of two
propositions the State must prove beyond a reasonable doubt to obtain a valid
conviction. In general, the corpus delicti cannot be proven by a defendant’s
admission, confession, or out-of-court statement alone. When a defendant’s
confession is part of the corpus delicti proof, the State must also provide
independent corroborating evidence. [Citation.]
To avoid running afoul of the corpus delicti rule, the independent evidence
need only tend to show the commission of a crime. It need not be so strong that it
alone proves the commission of the charged offense beyond a reasonable doubt.
If the corroborating evidence is sufficient, it may be considered, together with the
defendant’s confession, to determine if the State has sufficiently established the
corpus delicti to support a conviction. [Citations.]” (Emphasis in original.)
People v. Lara, 2012 IL 112370, ¶¶ 17-18.
¶ 24 Before discussing whether the evidence in this case was sufficient to satisfy the corpus
delicti rule, we first note that the parties disagree regarding the standard of review. Defendant
suggests that, in Lara, our supreme court “found the question of whether the evidence was
sufficient to satisfy the corpus delicti rule to be one of law,” such that we must apply a de novo
standard of review in assessing whether there was sufficient evidence to satisfy the rule. The State
responds that defendant misreads Lara in this regard. In Lara, our supreme court reviewed de novo
a legal question regarding what type of evidence the corpus delicti rule requires. However, Lara
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did not suggest that de novo review applies to determine whether, in any given case, there was
sufficient corroborating evidence to satisfy the rule. We agree with the State.
¶ 25 Lara came before our supreme court upon the State’s petition for leave to appeal, after our
appellate court reduced the defendant’s convictions for predatory criminal sexual assault of a child
(PCSA) to the lesser-included offenses of aggravated criminal sexual abuse (ACSA). Id. ¶ 2. This
court had concluded that proof of PCSA was insufficient under the corpus delicti rule, absent
“independent evidence of the element of penetration” corroborating defendant’s statement that it
had occurred. Id. Before our supreme court, the State argued that the appellate court had
“improperly expanded the corpus delicti rule to require independent evidence corroborating every
element of the specified offense” before a defendant’s statement could be used to prove the corpus
delicti. Id. ¶ 15. The defendant asserted that the element of penetration required corroboration
because it is the “only factor distinguishing PCSA from ACSA.” Id. ¶ 16. Our supreme court
stated: “Because this issue presents a question of law, we review it de novo.” Id.
¶ 26 Thus, de novo review applied in Lara because our supreme court was faced with an issue
of law regarding the meaning of the corpus delicti rule. See id. ¶ 48 (“We are addressing the legal
question of whether all elements *** of a charged offense must be supported by independent
evidence before a defendant’s inculpatory statement may be used to establish the corpus delicti of
the offense.”). Our supreme court resolved that question in favor of the State:
“[W]e hold that the corpus delicti rule requires only that the corroborating evidence
correspond with the circumstances recited in the confession and tend to connect the
defendant with the crime. The independent evidence need not precisely align with the details
of the confession on each element of the charged offense, or indeed to any particular element
of the charged offense.” Id. ¶ 51.
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¶ 27 As such, Lara did not suggest that de novo review applies whenever a defendant claims
there was insufficient evidence to satisfy the corpus delicti rule. Notably, Lara recognized that the
corpus delicti of an offense “is one of two propositions the State must prove beyond a reasonable
doubt to obtain a valid conviction,” id. ¶ 17, indicating that proof of corpus delicti should be
evaluated in the same manner as the sufficiency of any element of an offense. Further, Lara
reiterated that it is the role of the trier of fact to weigh the evidence and inferences, including with
respect to proof of the corpus delicti. Id. ¶ 46 (the fact finder’s responsibilities include the “need
to consider a variety of evidence, some conflicting or unclear, addressing the corpus delicti, the
identity of the offender, or both.”). We thus reject defendant’s suggestion that de novo review
applies. Rather, in evaluating whether there was sufficient proof to satisfy the corpus delicti rule,
we assess whether, viewing the evidence and reasonable inferences therefrom in the light most
favorable to the prosecution, the trier of fact could have found defendant guilty beyond a
reasonable doubt. See, e.g., People v. Hannah, 2013 IL (1st) 111660, ¶ 27 (“Viewing the evidence
in the light most favorable to the State, we find that the State proved the corpus delicti of the
offense in order to sustain a conviction for unlawful possession of a weapon by a felon.”).
¶ 28 We thus turn to consider whether the trial court, as finder of fact, could find sufficient
independent evidence corroborating defendant’s statement to Mason that he was driving the
Chrysler. For the following reasons we find that it could. In doing so, we keep in mind that the
corpus delicti rule “requires only that the corroborating evidence correspond with the
circumstances recited in the confession and tend to connect the defendant with the crime.”
Lara, 2012 IL 112370, ¶ 51. In other words, “the independent corroborating evidence is not
required to be identical to the details of the defendant’s admission; instead, only some consistency
between the two is required tending to confirm and strengthen the defendant’s admission.”
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People v. Smith, 2015 IL App (1st) 132176. The corroborating evidence may be circumstantial and
need not provide proof beyond a reasonable doubt. Lara, 2012 IL 112370, ¶ 72 (Thomas, J.,
concurring). Our court has recognized that only a “slight level of evidence” is necessary to
establish the corpus delicti. Smith, 2015 IL App (1st) 132176, 21 (quoting Hannah, 2013 IL App
(1st) 111660, ¶ 29).
¶ 29 Defendant acknowledges Mason’s testimony that he admitted he was driving the Chrysler.
However, he claims that there was no corroborating evidence to allow that statement to serve as
proof of the corpus delicti of the offense, i.e., that he was driving or otherwise in “actual physical
control” of the vehicle. 625 ILCS 5/11-501(a)(1) (West 2014); see also People v. Niemiro, 256 Ill.
App 3d at 908-09 (“The term ‘driving under the influence’ as used within [section 11-501 of the
Code] may encompass both the situation where defendant is shown to have been operating a
vehicle and the situation where defendant is shown to have been exerting actual physical control
over the vehicle, even though the vehicle was not shown to be moving. [Citation.]”)
¶ 30 In making his corpus delicti argument, defendant points out that no witnesses testified that
they saw the accident or saw defendant being removed from the Chrysler; there was no evidence
as to whether he had injuries consistent with being the driver; no one else witnessed his supposed
statements to Mason at the hospital; the trial record did not show whether he was medicated or
intoxicated at the time of the admission, and that Mason’s “notations of [defendant’s] alleged
admission were non-specific.” 4 Defendant also points out that Mason acknowledged that
defendant was not the owner, whereas defendant testified that Walter Thornton owned the car and
4 Although the trial transcript reflects that Mason was shown these reports during his testimony they are not included in the record on appeal.
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was driving it at the time of the accident.5 Defendant additionally urges that the State did not
provide corroborating evidence that he had “actual physical control” of the Chrysler within the
meaning of section 11-501 of the Code, i.e., that he was able to start the engine and move the
vehicle. See People v. Morris, 2014 IL App 130512, ¶ 17 (whether there is actual physical
control is determined on a case-by-case basis, considering factors including whether the defendant:
“(1) possessed the ignition key; (2) had the physical capability to operate the vehicle; (3) was
sitting in the driver’s seat; and (4) was alone with the doors locked. [Citation.]).” In this regard,
defendant asserts that the State failed to produce evidence that defendant had access to the interior
of the Chrysler or that he possessed or had access to the car’s keys.
¶ 31 In this case, viewing the evidence and reasonable inferences in the light most favorable to
the State, we find there is at least some evidence tending to corroborate defendant’s statement that
he was the driver, satisfying the corpus delicti rule. Lara, 2012 IL 112370, ¶ 51 (corpus delicti
rule requires only that corroborating evidence “tend to connect the defendant with the crime”).
Particularly, Mason’s testimony regarding the circumstances and investigative steps leading him
to defendant in the hospital provide some corroboration that defendant was driving the Chrysler.
¶ 32 Mason testified that, earlier on the same night of the accident, he had observed an
abandoned Jeep on the side of the road. Mason was later dispatched to the crash scene, where he
observed IDOT workers, the Chrysler, and the same Jeep. He testified that he “eventually went to
Mount Sinai [hospital] to speak with the driver.” At the hospital he “asked the nurses if they had
someone come in from a crash that was at the location” after which he spoke to defendant in his
hospital bed. Based on this testimony, the trial court could reasonably infer that (1) the Chrysler
5 Defendant notes that, at the hearing on the petition to rescind, Mason testified that the Chrysler was registered to Thornton. However, Mason’s trial testimony did not identify the owner of the car.
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ran off the road and collided with the Jeep, and (2) that defendant was in the Chrysler at the time
of the crash. This, in turn, provided some corroboration of defendant’s statement to Mason
admitting that he was driving the Chrysler when it struck the Jeep. See People v. Chavez, 285 Ill.
App. 3d 45, 49 (1996) (in rejecting corpus delicti argument, reasoning that testimony that
defendant appeared “with a leg injury likely to have resulted from an episode such as the turning
over of the vehicle is some corroboration of defendant’s stated admission to [police] that he had
been driving that vehicle.”).
¶ 33 We recognize that a person’s presence in a vehicle does not necessarily mean that the
person was driving the vehicle. However, the corpus delicti rule does not require the corroborating
evidence to independently prove the entire substance of a defendant’s admission. Rather, the rule
requires that the corroborating evidence “correspond with the circumstances recited in the
confession and tend to connect the defendant with the crime” but “need not precisely assign with
the details of the confession on each element of the charged offense, or indeed to any particular
element of the charged offense.” Lara, 2012 IL 112370, ¶ 51; see also Smith, 2015 IL App (1st)
132176, ¶ 18 (“The independent corroborating evidence is not required to be identical to the details
of the defendant’s admission”). In sum, we conclude that Mason’s testimony regarding the
circumstances of his investigation contained sufficient evidence, for purposes of the corpus delicti
rule, corroborating defendant’s admission that he was driving the Chrysler at the time of the
accident. 6 In turn, we reject defendant’s challenge to the sufficiency of the evidence.
6 As we find sufficient corroborating evidence that defendant was driving the Chrysler, we need not separately address defendant’s contentions that the State failed to prove that he had actual physical control of the Chrysler. See Niemiro, 256 Ill. App. 3d at 906 (recognizing that “if a person is shown to be operating a vehicle, that person is also, by the very nature of operating that vehicle, exercising actual physical control over the vehicle” for purposes of section 11-501 of the Code).
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¶ 34 In reaching this conclusion, we reject as inapposite defendant’s reliance on People v.
Foster, 138 Ill. App. 3d 44 (1985), in which this court reversed a defendant’s conviction for
operating a motor vehicle with a blood alcohol level of .10 (Ill. Rev. Stat. 1983, ch. 95 ½,
par. 11-501(a)(1)) because the corpus delicti was not proved by evidence independent of the
defendant’s admissions at the scene. We note at least two factors in Foster (not present in the
instant case) that contributed to the determination that there was insufficient corroboration of the
defendant’s admission. Significantly, in Foster it was undisputed that police found two individuals
in the vehicle, and that the defendant was seated on the passenger side while the other individual
was in the driver’s seat. Id. at 46. These circumstances did not corroborate the defendant’s initial
admission that he was the driver, but instead suggested that the second individual was just as likely
(if not more likely) to have been the driver. Further, in Foster, this court emphasized that the
defendant was not charged until several months after the crash since a responding officer initially
believed that the defendant was not the driver. Id. at 47 (in finding insufficient evidence of the
corpus delicti, noting that the officer was “apparently satisfied,” at least initially, that the defendant
was not the driver). Such circumstances are clearly not applicable to the instant case.
¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 36 Affirmed.
¶ 37 PRESIDING JUSTICE GORDON, dissenting:
¶ 38 I must respectfully dissent because I believe the State’s evidence was insufficient to prove
the corpus delicti of the offense. The only evidence that defendant was the driver of the vehicle
was his alleged statement to the state trooper, which was not explicitly contained in the police
report. No one observed defendant driving the vehicle or sitting in the driver’s seat. Defendant
testified that the owner of the vehicle was the driver, and the State did not call the owner as a
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witness, nor did they call the paramedics who transported defendant to the hospital. The police
never followed up by contacting the owner of the vehicle or the paramedics to obtain any
information, probably because defendant admitted orally that he was the driver.
¶ 39 The majority concludes “that Mason’s [(the state trooper’s)] testimony regarding the
circumstances of his investigation contained sufficient evidence, for purposes of the corpus delicti
rule, corroborating defendant’s admission that he was driving the Chrysler at the time of the
accident.” Supra ¶ 33. However, the circumstances of the investigation only show how the accident
occurred, that defendant was under the influence of alcohol, and his admission that he was the
driver. It shows no evidence, circumstantial or otherwise, that defendant was the driver of the
vehicle other than his admission that he was the driver. Based on the law as made and provided,
there was no corroboration and thus that admission alone was insufficient to prove the corpus
delicti of the offense. People v. Foster, 138 Ill. App. 3d 44, 46 (1985). Thus, I have no alternative
but to respectfully dissent.
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