People v. Whitley

2023 IL App (4th) 200082-U

• Court: Appellate Court of Illinois
• Decided: January 27, 2023
• Docket: 4-20-0082
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2023 IL App (4th) 200082-U FILED Supreme Court Rule 23 and is January 27, 2023 not precedent except in the NO. 4-20-0082 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Coles County CHRISTOPHER K. WHITLEY, ) No. 15CF236 Defendant-Appellant. ) ) Honorable ) James R. Glenn, ) Judge Presiding.

PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justice Harris concurred in the judgment. Justice Turner specially concurred.

ORDER

¶1 Held: (1) The appellate court affirmed, finding the State’s evidence was sufficient to prove defendant guilty of aggravated driving under the influence.

(2) Defendant failed to establish plain error where the trial court allowed an expert to testify defendant was impaired by alcohol based on an arresting officer’s report and video when the expert was not present and did not conduct the horizontal gaze nystagmus test.

¶2 In April 2019, a jury convicted defendant, Christopher K. Whitley, of aggravated

driving under the influence (DUI) (625 ILCS 5/11-501(d)(2)(C) (West 2014)). On appeal,

defendant contends (1) the trial court failed to prove him guilty beyond a reasonable doubt and

(2) the trial court erred in allowing the State’s expert to opine defendant was under the influence

of alcohol based on the expert’s review of an arresting officer’s report and video of the field sobriety tests when the officer did not personally conduct the horizontal gaze nystagmus (HGN)

test.

¶3 We determine the evidence was sufficient to convict defendant beyond a

reasonable doubt. We further conclude defendant forfeited review of the issue concerning the

expert’s testimony and failed to show plain error in admission of the testimony. Accordingly, we

affirm.

¶4 I. BACKGROUND

¶5 On June 15, 2015, the State charged defendant with aggravated DUI in connection

with a May 17, 2015, traffic stop. In April 2019, a jury trial was held.

¶6 During opening statements, defense counsel told the jury it would hear evidence

about field sobriety tests, including the HGN test. Counsel told the jury “if you don’t test almost

perfectly, if the tests are not administered almost perfectly, the results are compromised. And if

the results are compromised, then reliability and accuracy of the test is basically out the

window.” Counsel also stated “[w]e’ll see if this test, this one standardized field sobriety test was

administered correctly. We expect to have a witness to testify that it was not administered

completely correctly.”

¶7 At trial, Mattoon Police Captain Raymond Hall Jr., testified, on May 17, 2015, he

was on patrol in an unmarked squad car. Shortly before 12:56 a.m., Hall saw a truck driven by

defendant accelerate rapidly at an intersection. Hall followed the truck eastbound and did not see

defendant commit any traffic violations. However, after the truck stopped at a stop sign, it

crossed into another intersection, sped up rapidly, accelerated, and “kind of moved to the left.”

Hall saw a car coming toward the cross street from the south slow down. Traffic from that

direction did not have a stop sign. Hall turned on his emergency lights and stopped the truck.

-2- ¶8 Hall identified himself and asked defendant for his driver’s license and insurance.

Hall testified defendant attempted to shake his hand and mumbled, “Hi, Ray.” Defendant had no

trouble handing over the documents. When Hall asked defendant if he knew the reason for the

stop, defendant said he thought it was due to the oncoming car failing to stop at the stop sign.

Hall responded there was no stop sign at the intersection, and defendant replied, “[O]h, I missed

that.” During the conversation, Hall observed defendant had bloodshot and glassy eyes and an

odor of alcohol coming from his breath. Based on his observations, Hall called Officer Michael

Johnson to investigate a possible DUI.

¶9 Hall testified his squad car’s dash camera recorded both the traffic stop and the

DUI investigation. The State played a video clip of the traffic stop for the jury. The video

showed defendant’s vehicle accelerate through the intersection and swerve to avoid the

oncoming car. Because of loud music coming from defendant’s truck, some of the conversation

between Hall and defendant was difficult to hear.

¶ 10 On cross-examination, Hall stated he was unaware defendant had oral surgery

about four or five days before the incident. He agreed any gauze in defendant’s mouth could trap

alcohol. He did not recall defendant stumbling getting out of the truck or leaning against it to

brace himself when he exited it for field sobriety tests.

¶ 11 Johnson testified about the field sobriety tests administered to defendant. In 2015,

Johnson was an officer assigned as a patrolman to the Mattoon Police Department’s DUI

enforcement unit. He had investigated over 60 DUIs over the course of his career. Before

defendant’s arrest, he had investigated 30 DUIs and made 12 arrests. He testified he previously

received a National Highway Traffic Safety Association (NHTSA) certification in field sobriety

testing from the University of Illinois. He took a refresher course on standardized field sobriety

-3- tests between March and April 2014. As part of the refresher course, he administered the HGN

field sobriety test to five subjects who had consumed alcohol to determine if the subjects were

impaired and unable to operate a vehicle safely.

¶ 12 On May17, 2015, at around 1 a.m., Johnson responded to Hall’s call. When he

arrived, he saw Hall’s squad car and defendant’s truck. Johnson approached the truck and spoke

with defendant. Johnson testified he could smell the odor of alcohol from about two to three feet

away and observed defendant had glassy and bloodshot eyes. Johnson identified himself and

asked defendant if he had consumed any alcohol. Defendant responded he had a “couple beers”

at a wedding reception at the VFW. Johnson stated defendant’s speech was slurred.

¶ 13 Johnson testified field sobriety tests are classified as standardized and

non-standardized tests. The common non-standardized tests, also known as divided-attention

tests, are the alphabet test, the backwards-counting test, the touching-fingers test, and the

finger-to-nose test. The tests help aid an officer’s investigation of an individual’s ability to drive.

The three standardized tests are the HGN test, the walk-and-turn test, and the one-leg-stand test.

¶ 14 Johnson first asked defendant to recite 13 letters of the alphabet from the letter D

to the letter Q. Johnson testified he administered the test as he was trained and per NHTSA

standards. Johnson determined defendant failed the alphabet test because he recited from the

letter A to I, then skipped all the way to Q, said the letter J, and then stopped. His speech

continued to be slurred. On cross-examination, Johnson stated the NHTSA manual did not

require an officer to use a word associated with the letter when instructing a subject on the

alphabet test. A copy of the manual in the record describes the alphabet test under a section

labeled “Additional Techniques” and states “[f]or example, you might say to a driver, ‘Recite the

alphabet beginning with the letter E as in Edward and stopping with the letter P as in Paul.’ ”

-4- ¶ 15 Johnson next asked defendant to count backwards from 69 to 42 in accordance

with NHTSA standards. Defendant failed the counting test because he said several numbers

twice, went backward and forward a “little bit in the middle,” and did not go all way down to 42.

Johnson acknowledged nerves and the environment, such as defendant’s passenger interrupting

or trying to correct him, could have led to mistakes. Johnson did not ask defendant if he had

attention-deficit disorder (ADD) or another disability that affected his speech.

¶ 16 Johnson stated the odor of alcohol, bloodshot and glassy eyes, slurred speech, and

defendant’s inability to complete the counting and alphabet tests were indicators of impairment.

Based on defendant’s performance on the divided-attention tests, Johnson determined further

investigation was necessary.

¶ 17 Johnson next administered the HGN test, a standardized test, which is designed to

detect involuntary jerking of the eye by moving a stimulus, such as a finger, stylus, or flashlight,

in front of the eyes. Johnson explained he did not perform the walk-and-turn or one-leg-stand

tests because defendant had a back issue from a prior car accident that affected his ability to walk

or stand. Johnson asked defendant to step out of his truck. While stepping out of the truck,

defendant told Johnson he lived only a block away, when he actually lived at least seven blocks

away. Because defendant was facing Hall’s squad car, Johnson asked Hall to turn off his front

lights. Defendant stood between the squad car and the truck, while Johnson stood four feet away

from defendant. From that distance, Johnson could still smell the odor of alcohol and observed

defendant’s speech was slurred. Johnson made sure the surrounding area was clear of

distractions. He said he was supposed to avoid movement behind him when administering the

test. He could not recall anything about traffic but said he did not restrict traffic.

-5- ¶ 18 Johnson first did preliminary testing to determine if defendant had any underlying

medical conditions that would prevent proper testing. After ruling out underlying medical

conditions, Johnson performed the first test, the lack of smooth pursuit. Johnson explained he

moved his finger as a stimulus two seconds to a side, four seconds back to the other side, and

then two seconds back to center, repeating the cycle two times. Johnson did not use a stopwatch

or count to calculate the four seconds it took to move his fingers. He held his fingers

approximately 12 inches from the center of defendant’s face to start. Both of defendant’s eyes

showed a lack of smooth pursuit, which was like a wiper skipping over a car’s windshield, and

Johnson determined there were two indicators of impairment, one for each eye.

¶ 19 Johnson next tested for distinct and sustained nystagmus at the maximum

deviation, which detects if the eye involuntary jerks while trying to focus on the stimulus at the

maximum distance. Johnson moved his fingers as far as the eye could look to one side and held

them for four seconds to observe whether the eye movement was distinct and sustained. Johnson

then moved his fingers to the other side and held it for four seconds. He then repeated the test.

While conducting the test, Johnson stated he held the stimulus 12 inches from the center point

but clarified the 12 inches was “not from the outside points.” He said, “I don’t know how far it

would have been out there.” He stated he conducted the test in accordance with NHTSA

standards. Johnson detected one clue of impairment per eye, which was verified on the second

pass. On cross-examination, the following colloquy occurred:

“Q. [W]hen you’re administering the test, you’re going to

the side correct—on one of the tests, at least, you go to the side

with the stylus?

A. On every test I go to the side.

-6- Q. Yeah, okay, and you’re saying that you adjusted each

time to come in to keep it 12 inches?

A. Absolutely not, no. Twelve is where the center point

where you start.

Q. So there are times that you admit that the stylus or the

tip of the light is more than 12 to 15 inches away from his eyes,

correct?

A. Yes, when I’m out to the side, I mean, it would be 12

inches from here (indicating), and then however far that would be,

I’m sure with some math you could figure it out.”

A copy of the NHTSA manual in the record instructs to “[p]osition the stimulus approximately

12-15 inches *** in front of the subject’s nose, and slightly above eye level.” It does not provide

a distance from the center when moving the stimulus to the side.

¶ 20 Johnson next conducted the last part of the HGN test by checking for the onset of

nystagmus before a 45-degree angle. Johnson asked defendant to follow the stimulus with his

eyes from the center point until reaching 45 degrees, which was approximately before shoulder

length. Johnson detected one indicator of impairment in each eye when he administered the test.

Johnson testified, based on the totality of the circumstances, he believed defendant was impaired

due to the use of alcohol and thus placed defendant under arrest for DUI.

¶ 21 The State played the dash camera video showing Johnson’s DUI investigation and

defendant’s arrest. While viewing the video, Johnson noted it depicted defendant swaying back

and forth and leaning on the truck’s tailgate. He noted there was not a lot of traffic but could not

recall if cars were constantly passing behind him. The video content is generally consistent with

-7- Johnson’s testimony. It shows defendant exit the truck without obvious difficulty but shows him

swaying side to side during the HGN testing. The video does not show the presence of traffic.

¶ 22 At the police station, defendant refused to give a breath sample. A booking video

showed Johnson selecting a second mouthpiece for the breath test before defendant refused to

take the test. Johnson stated he did so because the first one was broken despite being sealed.

Defendant did not mention the broken mouthpiece when he refused the test. Johnson did not ask

defendant if he had stitches in his mouth. Johnson did not recall if defendant’s jaw was swollen

and did not know defendant had his wisdom teeth extracted five days before the incident. He

acknowledged medication may cause bloodshot eyes but did not ask defendant if he was taking

anything.

¶ 23 The State called officer Anthony Shovan, the Illinois State Police breath alcohol

testing section instructor, as an expert witness. After questioning Shovan about his training and

qualifications to testify about NHTSA standards and the NHTSA manual, the State sought to

qualify him as an expert in “field sobrieties and DUI investigation.” When asked if there were

any objections, defense counsel stated “yes,” without further elaboration. When the trial court

asked counsel if he would like “to be heard further on that,” he stated “no.”

¶ 24 Shovan testified the three standardized field sobriety tests are the HGN, the

walk-and-turn, and the one-leg-stand. He also testified about non-standardized divided-attention

tests, including the alphabet and counting tests. Shovan explained there are three different phases

of a DUI investigation. Phase one is “vehicle in motion,” where the officer observes signs of

impairment such as improper lane usage, wide turns, or misuse of traffic signs.

¶ 25 When Shovan began to describe phase two, the following colloquy occurred:

“Q. What is phase two?

-8- A. Phase two is personal contact or interview questioning

stage where we have seen them do whatever they’ve done, we have

enough information to warrant a stop.

[Defense Counsel]: Objection, Judge. It’s inappropriate.

THE COURT: Do you need to be heard?

[Defense Counsel]: Yeah.

(Sidebar held on the record out of the presence and hearing

of the jury.)

[Defense Counsel]: I would think it’s inappropriate to say

what we do and then with the—this is basically what given for

probable cause that that’s for a jury to decide. That’s for Your

Honor to decide. This witness can’t give whether the officer had

probable cause or not. This is not within his area of testifying. He’s

only testifying about field sobriety. I don’t think it’s appropriate,

basically improperly bolsters—

[State’s Attorney]: We asked for him to be qualified as an

expert in field sobriety and DUI investigation. He’s going to testify

that the officer is taught to observe the totality of the circumstances

from beginning to end. And he’s telling what he teaches in these

field sobriety classes that you start here and end here. He’s also

testified that’s what’s in the materials to teach, which is the

defense expert is going to say it doesn’t say that.

[Defense Counsel]: I think the evidence he might have—

-9- [State’s Attorney]: You can’t—

THE COURT: Just a moment.

[Defense Counsel]: I think it’s improper bolstering.

THE COURT: I don’t find it to be improper bolstering. The

objection is overruled.”

¶ 26 Shovan testified phase two is “personal contact,” when the officer talks to the

driver to see if they detect an odor of alcohol or see containers with alcohol or prescription drugs.

An officer would also look at the driver’s appearance to detect bloodshot and glassy eyes, slurred

speech, thick tongue, or soiled clothing. However, an odor of alcohol by itself would not

establish impairment. Shovan agreed individual characteristics could be caused by things other

than alcohol impairment such as allergies, a speech impediment, or being awoken from sleep.

Phase three is the prearrest screening phase, during which the officer would have the driver

perform field sobriety tests.

¶ 27 Shovan testified about the HGN test and its procedures, stating the HGN test

consists of three different tests: (1) lack of smooth pursuit, (2) distinct and sustained nystagmus

at maximum deviation, and (3) onset of nystagmus before a 45-degree angle. Each test checks

for a clue of impairment in each eye, for a total of six possible clues. Shovan admitted there were

possible causes of nystagmus other than alcohol impairment. The following colloquy then

occurred:

“Q. Trooper Shovan, did you review any materials from

this case?

A. Yes. I reviewed a report, a field report and a video.

- 10 - Q. And based upon your review, and based upon your

experience as a field sobriety instructor, did the officer in that

video perform the HGN test properly?

A. From what I have seen of the video, he did the HGN test

correctly.

Q. Now, were you able to see the results of those—that

test?

A. From the in-car video camera, I was able to see the

person standing there. I wasn’t able to see the eyes of the

individual, and I was able to see from the back of the officer and

was able to see his hand movements as it went across his body.

Q. And based upon that, you you’re saying—

A. Yes.

Q. —you believe he performed the test correctly?

Based upon your review of the materials and your training

and experience, were you able to form an expert opinion as to

whether or not the Defendant was impaired by alcohol?

A. Based off of the report and the video, I would say yes.

Q. And is that opinion to a reasonable degree of certainty in

your field?

A. Yes.”

Defense counsel did not object.

- 11 - ¶ 28 When further asked on cross-examination about the basis for his opinion

concerning the HGN test, Shovan stated: “I’m basing my opinion off of watching the video to

see how the officer conducted the test and then his findings that he wrote in the report.” The

following colloquy further occurred:

“Q. Okay. But if—if you’re relying on his subjective

interpretation of his findings, correct?

A. His opinion, if that’s what you’re getting at.

Q. Yes.

A. Yes, sir.

Q. Because there’s nothing objective that you can go back

and replay and say, yeah, I see that, correct?

A. Visibly seeing the eyes moving, no. The test on the way

he conducted it, yes.

Q. And as we sit here today, all you can rely on is what the

officer is saying he saw as it pertains to that test?

Q. Okay. And there’s no way to scientifically verify that,

would you agree with that?

A. Of what?

Q. Of what he said he saw?

A. If I could know what he saw?

Q. Yes?

A. No, I could not.”

- 12 - ¶ 29 Defense counsel further questioned Shovan about the testing as follows:

“Q. [A]s the teacher of this program through NHTSA, you

would agree with me that if the tests are not done right, they are

not to be considered valid?

A. Correct. They are to be done as instructed, and in the

way that—

Q. Okay. And if the officer deviates from the instructions,

then we should disregard the results, correct?

A. Depends on the instructions. If they don’t ask a certain

question in the walk and turn, or don’t tell them not to count to

nine, then yes, that portion of the test would be omitted, but not the

whole test.

Q. Okay. And you have Exhibits 1, and I believe 2 in front

of you. How far is the instrument, the flashlight pen for HGN, how

far away is that supposed to be held from the Defendant’s face?

A. Twelve to fifteen inches.

Q. Okay. And so if the officer at issue in this case has

testified earlier that it was 16 to 18 inches away from his face, it

would have been done improperly, correct?

A. NHTSA’s guidelines tells you to go approximately 12 to

15 inches is their guidelines.

- 13 - Q. And if this officer says, and has said under oath, that he

did it 16 to 18 inches away, it would have been done incorrectly,

A. The way he held the stimulus to the individual’s face to

start, yes.

Q. And so we should disregard the results because the test

is done wrong, correct?

A. If the individual kept the stimulus away the entire time

at a different distance, then it would not have been done as, as

NHTSA guidelines suggest.

Q. And NHTSA says for these test to be results, because

there’s all kinds of PHD’s [sic] that wrote every chapter in those

books, then if the tests aren’t done right, then the results—

[State’s Attorney]: Objection, Your Honor. He’s badgering

the witness.

THE COURT: Overruled.

Q. Would you agree with that?

A. If the entire test was conducted at the 16 inches and he

did not move forward or backwards during that, which as people

do it, they tend to move, that’s why they gave you a range, but, yes

12 to 15 inches is what it states in the manual.

Q. And 16 to 18 would be an invalid test, correct?

- 14 - A. That would be outside of the scope that NHTSA

suggests that you do.”

¶ 30 Shovan disagreed the NHTSA training manual required an officer, when

conducting the alphabet test, to say the letter and a word associated with the letter. Shovan

believed the officer had done the alphabet test correctly even if he only used the letters. As to the

counting test, Shovan stated there is no definite starting or ending point; only a sequence of 15 or

more numbers had to be used. Shovan also acknowledged there are 38 possible causes for

nystagmus, including lights from passing cars.

¶ 31 Dr. Ronald Henson, an expert in field sobriety tests and DUI investigations,

testified for defendant. Henson testified the odor of alcohol indicates someone drank alcohol, but

not how much or if the person was intoxicated. He also initially stated glassy and bloodshot eyes

and slurred speech were not definite indicators of impairment. However, on cross-examination,

Henson conceded bloodshot eyes are an indicator of alcohol impairment. Henson also testified

oral surgery could affect speech.

¶ 32 Henson testified the reliability of the HGN test is compromised if the officer held

the stimulus outside of the 12-to-15-inch range or if the officer failed to hold the stimulus for a

minimum of four seconds at the maximum deviation. He also testified flashing and rotating

lights or lights from passing traffic could create an optokinetic nystagmus, an involuntary eye

movement caused by sharply contrasting moving images, which would also give a false positive.

For example, optokinetic nystagmus could be produced if a car’s lights were on or reflected off

the houses and defendant was facing them. Henson reviewed the DUI questionnaire pertaining to

defendant and noted it was blank other than a notation when Miranda warnings (see Miranda v.

- 15 - Arizona, 384 U.S. 436 (1966)) had been given. The questionnaire did not require an officer to

ask if the person tested had been recently seen by a doctor or dentist.

¶ 33 Henson opined the investigation and pre-exit tests were not conducted correctly.

However, he stated he did not have enough information to give an opinion about the HGN test

and agreed nothing he saw indicated the test had been done incorrectly. In his opinion, it could

not be determined whether defendant was impaired due to alcohol. After Henson’s testimony, the

court instructed the jury the HGN test results “are not used to correlate the test results with any

particular blood alcohol level or range or level of intoxication.”

¶ 34 Defendant testified that, on May 16, 2015, he worked until 5:30 p.m. At around 6

p.m., he met his stepbrother, Jarrod Hudson, and friend, Jaime Johnson, at the VFW, where he

drank two beers. Defendant offered a ride home to Hudson, Jaime, and Penny Day, Jaime’s

fiancée. Day did not want to leave, and defendant offered to come back later to give her a ride

home. Defendant left the VFW around 6:30 or 7 p.m. and said he did not stop to have drinks

before or after dropping off Hudson and Jaime. At around 12 or 12:30 a.m., defendant went to

the VFW to pick up Day. He testified he thought he was capable of safely operating a vehicle

and denied drinking alcohol after picking up Day.

¶ 35 As he approached the intersection before the traffic stop, defendant saw a car

proceeding through the intersection, coming from the side. Because the car was coming at him,

he gave his car a “a little gas” and got out of the way. Defendant pulled over as soon as Hall

activated his lights. Defendant said he and Day told Hall they each lived a block away and

added, “a block away from where we were going is what I was trying to get through.” Defendant

denied mumbling or fumbling when retrieving his driver’s license and insurance card. He also

assumed his jaw looked swollen at the time of the stop because he had oral surgery four days

- 16 - earlier. Defendant said Day kept talking while Johnson asked him to do the divided-attention

tests. He acknowledged he did not recite the alphabet as instructed by Johnson and missed a few

numbers when counting backwards. He said he did not have any trouble getting out of the truck.

¶ 36 Defendant testified he stood four or five feet in front of Hall’s squad car and said,

even though the front lights of Hall’s car were turned off, the car’s back strobe lights were on,

which caused him trouble during the HGN test because he could not see what was going on. He

agreed, however, the video did not show the back strobe lights reflecting off the car, the houses,

or the street in the back.

¶ 37 At the police station, defendant told Johnson he was supposed to go to Effingham

but decided not to because he had a couple of beers. Defendant said he refused the breath test

because he did not trust the machine. Defendant walked home after posting bond.

¶ 38 Defendant testified he still had sutures in the mouth at the time of the May 17,

2015, traffic stop. He said Johnson did not search his mouth for foreign objects and said he was

still spitting blood at that time because of his oral surgery. Defense exhibits included a photo

taken on May 12, 2015, after defendant had his wisdom teeth extracted, and the bill for the

extraction. Defendant identified defense exhibit No. 8 as a screenshot from the booking video

showing his right cheek, which was swollen. Defendant added he had been diagnosed with ADD

at the age of 12 and had back and neck issues.

¶ 39 The defense recalled Detective Johnson to testify. Johnson testified the rear

flashing lights on Hall’s squad car were left on for safety purposes. Hudson testified and

corroborated defendant’s version of the events at the VFW and stated he would not have

accepted the ride from defendant if defendant had been impaired.

- 17 - ¶ 40 The parties stipulated Dr. Brandon Combs, a chiropractic physician, treated

defendant for cervical spine and thoracic spine issues from 2012 until April 2013, when he

reached maximum medical recovery. Physician Assistant Michael Heise testified as an expert in

primary health care and stated he diagnosed defendant in October 2018 with ADD. Defendant

had also been diagnosed with ADD when he was 12. Defendant was not taking medication for

ADD on May 17, 2015, and Heise stated he could not say with any certainty “ADD was present

in [defendant]” on that date. However, Heise stated a person with ADD who is not taking

medication will have worsening symptoms.

¶ 41 In closing arguments, the parties generally focused on the circumstantial evidence

of impairment and whether the field sobriety tests were conducted properly. During

deliberations, the jury sent the court two notes. In the first note, the jury requested to see the

videos of the field sobriety tests and booking. Over defense counsel’s objection, the court

allowed the jury to view the videos in the courtroom. In the second note, the jury asked for

clarification of a jury instruction, writing: “we need more clarification of *** [‘]impaired to

reduce his ability to think and act with ordinary care.[’] ” The court instructed the jury they were

“currently in possession of all criminal jury instructions appropriate to the facts of this case.”

¶ 42 The jury found defendant guilty of DUI. After the jury was excused, the court

found him guilty of aggravated DUI based on his previous convictions.

¶ 43 Defendant filed a motion for a new trial, asserting: (1) a sufficiency of the

evidence challenge, (2) a claim of juror misconduct during deliberations, and (3) a claim a

sleeping juror deprived him of a fair trial. The trial court granted the motion based on allegations

from a juror, J.S., who stated that, at the start of deliberations, another juror said he grew up with

defendant, heard he used his money to get out of trouble, and “ ‘[it was] finally right that he gets

- 18 - what he deserves.’ ” J.S. said it influenced his decision in the case. However, the State

subsequently moved to reinstate the verdict based on newly discovered evidence the testimony of

J.S. was the result of subornation of perjury by defendant and defense counsel. After a hearing,

the court reinstated the verdict, finding J.S.’s testimony was either perjured or inaccurate.

¶ 44 New posttrial counsel filed a motion for a new trial in which he alleged in part the

trial court erred in allowing the HGN test because Johnson’s testimony about the distance of the

stimulus from the center showed the test was performed incorrectly. He also alleged permitting

Shovan to testify defendant was intoxicated improperly bolstered Johnson’s testimony because

expert testimony was unnecessary. He stated Shovan’s “expert testimony, as it related to the

question of whether or not the field sobriety tests, or processes of the investigation [were]

properly handled was acceptable.” However, he alleged Shovan’s opinion “to the state of

intoxication of [defendant] was a lay opinion and the use of the video and the police reports to

formulate that opinion was improper.” The court denied the motion and sentenced defendant to

three years’ incarceration. This appeal followed.

¶ 45 II. ANALYSIS

¶ 46 A. Sufficiency of the Evidence

¶ 47 Defendant first argues the evidence was insufficient to convict him because the

State failed to prove beyond a reasonable doubt he was under the influence of alcohol.

¶ 48 “ ‘When reviewing a challenge to the sufficiency of the evidence in a criminal

case, the relevant inquiry is whether, when 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.’ ” People v. Ngo, 388 Ill. App. 3d 1048, 1052, 904 N.E.2d 98, 102

(2008) (quoting People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331 (2006)).

- 19 - The trier of fact has the responsibility to determine the credibility of witnesses and the weight

given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences

from that evidence. People v. Jackson, 232 Ill. 2d 246, 280-81, 903 N.E.2d 388, 406 (2009). “[A]

reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable,

improbable[,] or unsatisfactory as to create a reasonable doubt of the defendant’s guilt.” People

v. Rowell, 229 Ill. 2d 82, 98, 890 N.E.2d 487, 496-97 (2008) (citing People v. McDonald, 168 Ill.

2d 420, 444, 660 N.E.2d 832, 842 (1995)).

¶ 49 Section 11-501(a)(2) of the Illinois Vehicle Code provides “[a] person shall not

drive or be in actual physical control of any vehicle within this State while *** under the

influence of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2014). To prove a defendant guilty of

DUI, the State must prove the “driver was under the influence of a drug or alcohol to a degree

that rendered him incapable of driving safely.” People v. Gordon, 378 Ill. App. 3d 626, 631-32,

881 N.E.2d 563, 567 (2007). The Illinois pattern jury instruction used in this case stated “[a]

person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his

mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary

care.” Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 2000).

¶ 50 Circumstantial evidence can prove a defendant guilty of DUI. People v. Hostetter,

384 Ill. App. 3d 700, 712, 893 N.E.2d 313, 323 (2008). “Circumstantial evidence is proof of

certain facts and circumstances from which the fact finder may infer other connected facts which

usually and reasonably follow from the human experience and is not limited to facts that may

reasonably have alternative, innocent explanations.” People v. Diaz, 377 Ill. App. 3d 339, 345,

878 N.E.2d 1211, 1216-17 (2007). To obtain a DUI conviction, the State need not present

chemical evidence from a Breathalyzer or a blood test. Instead, “the credible testimony of the

- 20 - arresting officer may be sufficient to prove the offense.” Diaz, 377 Ill. App. 3d at 345. Such

testimony renders scientific proof unnecessary. Gordon, 378 Ill. App. 3d at 632. A defendant’s

refusal to submit to a breath test after his arrest constitutes circumstantial evidence of his

consciousness of guilt. Diaz, 377 Ill. App. 3d at 345; see also People v. Garriott, 253 Ill. App. 3d

1048, 1052, 625 N.E.2d 780, 784 (1993) (holding the jury may infer the driver refused to submit

to a breath test because he knew it would confirm he was under the influence).

¶ 51 Here, there was ample evidence defendant was under the influence of alcohol

such that he could not drive safely or think and act with ordinary care. Defendant sped up and

swerved to avoid a vehicle because he “missed” the oncoming vehicle did not have a stop sign.

Defendant “mumbled,” his speech was slurred, his eyes were bloodshot and glassy, and he had

the odor of alcohol on his breath. He also admitted consuming alcohol. When Johnson conducted

the field sobriety tests, defendant was unable to properly complete the alphabet and counting

tests. Viewing the video of the tests, the jury could easily conclude defendant performed poorly

on them. During the HGN test, defendant swayed and showed six signs of nystagmus. Thus,

Johnson opined defendant was intoxicated. Defendant then refused breath testing, which the jury

could consider as circumstantial evidence of consciousness of guilt.

¶ 52 Defendant presents a litany of reasons to explain his performance on the tests and

the officers’ observations. For example, he argues his recent oral surgery explained his slurred

speech and gauze in his mouth trapped the odor of alcohol. He said Day distracted him during

the divided-attention tests and reflections of light affected the HGN test. He suggested back

issues or ADD could further explain his actions, and he did not trust the breath machine because

of a broken mouthpiece. However, he did not provide the officers with those explanations at the

time of his stop and arrest.

- 21 - ¶ 53 The jury heard testimony from both the State’s and defendant’s witnesses, as well

as defendant’s own testimony. Video evidence was also presented and viewed by the jury. It is

the jury’s function “to assess the credibility of witnesses, weigh the evidence presented, resolve

conflicts in the evidence, and draw reasonable inferences from the evidence.” People v. Moss,

205 Ill. 2d 139, 164, 792 N.E.2d 1217, 1232 (2001). Here, it was reasonable for the jury to

determine defendant was under the influence of alcohol.

¶ 54 Defendant also argues the testing was completed incorrectly. However, the record

does not conclusively support defendant’s claim. Johnson explained the testing in detail,

including an explanation of his starting point for the HGN test at the required distance. He

explained the distance would differ as the stimulus was moved out to the side of the subject’s

face. The NHTSA manual merely states the 12-to-15-inch distance is the starting point. Indeed,

even defendant’s expert could not say the HGN test was performed incorrectly. Johnson also

disagreed there was any error in how he conducted the alphabet test. The NHTSA manual

provides an example of using a word associated with the letters. It does not definitively require

the officer to do so. Shovan also testified the tests were performed correctly.

¶ 55 Further, even in the absence of the HGN test results, given the credible testimony

from two police officers, along with defendant’s refusal to take a Breathalyzer test, scientific

proof of intoxication was unnecessary to sustain defendant’s conviction for driving under the

influence of alcohol. See People v. Morris, 2014 IL App (1st) 130152, ¶ 22, 16 N.E.3d 269

(citing Gordon, 378 Ill. App. 3d at 632). Accordingly, viewing the evidence in the light most

favorable to the State, we cannot say the evidence in this case was so unreasonable, improbable,

or unsatisfactory it created a reasonable doubt of defendant’s guilt.

¶ 56 B. Expert Testimony

- 22 - ¶ 57 Defendant next contends the trial court erred by allowing Shovan to testify

defendant was under the influence of alcohol without laying a proper foundation when Shovan

was not present at the scene and did not administer the HGN test. He further argues allowing the

testimony improperly bolstered Johnson’s credibility. The State argues defendant forfeited the

issue.

¶ 58 “Generally, ‘[t]o preserve an issue for appeal, the defendant must have raised the

issue in a motion in limine or an objection at trial and also in a posttrial motion.’ ” People v.

Korzenewski, 2012 IL App (4th) 101026, ¶ 7, 970 N.E.2d 90 (quoting People v. Brown, 319 Ill.

App. 3d 89, 96, 745 N.E.2d 173, 181 (2001)). “The failure to properly preserve an issue for

review results in forfeiture.” Korzenewski, 2012 IL App (4th) 101026, ¶ 7. “To challenge the

foundation for admission of a test, a defendant must make a ‘timely and specific objection to the

foundation requirements.’ ” Korzenewski, 2012 IL App (4th) 101026, ¶ 7 (quoting People v.

Rigsby, 383 Ill. App. 3d 818, 823, 890 N.E.2d 1146, 1150 (2008)). “ ‘[A]n objection requirement

is especially important in cases of an improper foundation because errors in laying a foundation

are easily cured.’ ” Korzenewski, 2012 IL App (4th) 101026, ¶ 7 (quoting Rigsby, 383 Ill. App.

3d at 823). “A party cannot sit by and permit evidence to be introduced without objection and

upon appeal urge an objection which might have been obviated if made at the trial.” People v.

Trefonas, 9 Ill. 2d 92, 98, 136 N.E.2d 817, 820 (1956). “Further, ‘a defendant forfeits any issues

as to the impropriety of evidence if he procures, invites, or acquiesces in the admission of that

evidence.’ ” Korzenewski, 2012 IL App (4th) 101026, ¶ 7 (quoting People v. Durgan, 346 Ill.

App. 3d 1121, 1131, 806 N.E.2d 1233, 1241 (2004)).

¶ 59 Defendant concedes he did not specify the basis of his objection when Shovan

was qualified as an expert. Indeed, the trial court specifically asked defendant if he would like to

- 23 - provide the details of the basis for his objection, and defendant declined. However, defendant

argues the reason for his objection was clear from the record. We disagree.

¶ 60 The record shows when defense counsel generically objected, it was broadly to

Shovan’s qualification as an expert. When he later objected based on an argument of

“bolstering,” it was in the context of probable cause for the stop. There was no objection at all to

Shovan’s opinion defendant was intoxicated. Thus, the issue is forfeited. However, defendant

also argues plain error applies.

“ ‘[T]he plain-error doctrine bypasses normal forfeiture principles

and allows a reviewing court to consider unpreserved error when

either (1) the evidence is close, regardless of the seriousness of the

error, or (2) the error is serious, regardless of the closeness of the

evidence. In the first instance, the defendant must prove

‘prejudicial error.’ That is, the defendant must show both that there

was plain error and that the evidence was so closely balanced that

the error alone severely threatened to tip the scales of justice

against him. The State, of course, can respond by arguing that the

evidence was not closely balanced, but rather strongly weighted

against the defendant. In the second instance, the defendant must

prove there was plain error and that the error was so serious that it

affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process.’ ” People v. Stevens, 2018 IL App

(4th) 160138, ¶ 71, 115 N.E.3d 1207 (2018) (quoting People v.

Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 79-80 (2005)).

- 24 - ¶ 61 Our supreme court has twice addressed the propriety of testimony regarding the

results of HGN testing in DUI cases. In People v. McKown, 226 Ill. 2d 245, 254, 875 N.E.2d

1029, 1034 (2007) (McKown I), the court considered whether it was error to admit HGN test

results as scientific evidence without holding a hearing pursuant to Frye v. United States, 293 F.

1013 (D.C. Cir. 1923), “to determine whether the HGN test had been generally accepted as a

reliable indicator of alcohol impairment by the relevant scientific community.” Under the

standard set forth in Frye, “ ‘scientific evidence is admissible at trial only if the methodology or

scientific principle upon which the opinion is based is “sufficiently established to have gained

general acceptance in the particular field in which it belongs.” ’ ” McKown I, 226 Ill. 2d at 254

(quoting In re Commitment of Simons, 213 Ill. 2d 523, 529-30, 821 N.E.2d 1184, 1188-89

(2004), quoting Frye, 293 F. at 1014).

¶ 62 The supreme court determined HGN testing is scientific and subject to the Frye

requirements. McKown I, 226 Ill. 2d at 256-57. A Frye hearing was thus required “to determine

if the HGN test has been generally accepted as a reliable indicator of alcohol impairment.”

McKown I, 226 Ill. 2d at 275. The supreme court remanded the cause to the trial court. McKown

I, 226 Ill. 2d at 276.

¶ 63 The supreme court retained jurisdiction over the case and addressed the HGN

testing again after the trial court conducted the requisite hearing and concluded HGN testing

satisfied Frye. People v. McKown, 236 Ill. 2d 278, 293-94, 924 N.E.2d 941, 949-50 (2010)

(McKown II ). There, the supreme court held, “HGN testing is generally accepted in the relevant

scientific fields and that evidence of HGN test results is admissible for the purpose of proving

that a defendant may have consumed alcohol and may, as a result, be impaired.” McKown II, 236

Ill. 2d at 303. To be admissible, the test must be performed according to the protocol established

- 25 - by the [NHTSA] by a properly trained officer. McKown II, 236 Ill. 2d at 306. To establish a

proper foundation, the evidence must show the witness has been “properly trained and that he

performed the test in accordance with proper procedures.” McKown II, 236 Ill. 2d at 306.

¶ 64 Here, under McKown II, Shovan was not qualified to testify defendant was

impaired by alcohol based solely on the HGN test, nor could he testify to the results of the HGN

test when he did not personally perform it. Thus, his statement defendant was impaired by

alcohol “[b]ased off of the report and the video” is troublesome to the extent it suggests Shovan

relied on an HGN test he did not perform or incorrectly testified the HGN test alone was

admissible to show actual impairment rather than proving defendant “may” have consumed

alcohol and “may” be impaired as a result. See McKown II, 236 Ill. 2d at 303.

¶ 65 However, Shovan could testify as to whether the tests were performed correctly.

In that regard, we first note, the record is not conclusive Shovan improperly opined defendant

was impaired based on the HGN test, as suggested by defendant. Instead, Shovan stated his

opinion was based on “the report and the video.” Shovan did not state he relied specifically on

the HGN test. Further, we do not consider that statement in a vacuum. The record as a whole

makes it clear Shovan was very candid he could not verify what Johnson saw when he performed

the HGN test. Indeed, defense counsel thoroughly explored that issue on cross-examination. In

the context of the full record, it is clear Shovan’s opinion was based on a general review of the

materials and not his perceived results of an HGN test he admittedly did not perform himself or

see the results as it was performed. See Korzenewski, 2012 IL App (4th) 101026 (2012), ¶ 22

(finding no error occurred when an officer testified he did not know how much alcohol the

defendant consumed and acknowledged the HGN test, on its own, was not conclusive evidence

of intoxication.) Thus, ultimately, we do not find error.

- 26 - ¶ 66 Defendant also suggests Shovan’s testimony improperly bolstered Johnson’s

credibility. When expert testimony comments on the credibility of other witnesses, it may be

found to invade the province of the jury to make credibility determinations. See People v.

Howard, 305 Ill. App. 3d 300, 308-309, 712 N.E.2d 380, 385 (1999). The issue commonly arises

when the veracity of witnesses is at issue. See, e.g., People v. Barajas, 322 Ill. App. 3d 541, 555,

749 N.E.2d 1047, 1058 (2001) (describing two cases).

¶ 67 Here, Shovan’s testimony did not comment on the credibility of other witnesses in

the sense he did not testify other witnesses were lying or fabricated evidence. Instead, his

testimony was offered to show the testing was properly performed, a question defendant himself

placed at issue from the very beginning of the case and upon which he presented his own expert.

The State was entitled to address it. See generally People v. Cavazos, 2022 IL App (2d)

120444-B, ¶ 78 (distinguishing Howard). Thus, Shovan’s testimony was not improper

“bolstering” of Johnson’s credibility.

¶ 68 Finally, we observe, even if we were to find error, it would not rise to the level of

plain error. Defendant contends first-prong plain error applies, arguing the evidence was closely

balanced. To prove first-prong error applies, defendant must prove prejudicial error. That is, the

defendant must show both there was plain error and the evidence was so closely balanced the

error alone severely threatened to tip the scales of justice against him. Stevens, 2018 IL App (4th)

160138, ¶ 71.

¶ 69 “ ‘In determining whether the evidence adduced at trial was close, a reviewing

court must evaluate the totality of the evidence and conduct a qualitative, commonsense

assessment of it within the context of the case.’ ” Stevens, 2018 IL App (4th) 160138, ¶ 71

(quoting People v. Sebby, 2017 IL 119445, ¶ 53, 89 N.E.3d 675). “ ‘A reviewing court’s inquiry

- 27 - involves an assessment of the evidence on the elements of the charged offense or offenses, along

with any evidence regarding the witnesses’ credibility.’ ” Stevens, 2018 IL App (4th) 160138,

¶ 71 (quoting Sebby, 2017 IL 119445, ¶ 53). The issue does not involve the sufficiency of close

evidence but rather the closeness of sufficient evidence. Stevens, 2018 IL App (4th) 160138, ¶ 71

(quoting Sebby, 2017 IL 119445, ¶ 60).

¶ 70 Under the first prong of plain-error analysis, “ ‘[w]hat makes an error prejudicial

is the fact that it occurred in a close case where its impact on the result was potentially

dispositive.’ ” Stevens, 2018 IL App (4th) 160138, ¶ 71 (quoting Sebby, 2017 IL 119445, ¶ 68).

The question of whether an error is trivial, or de minimis, is not the inquiry. Stevens, 2018 IL

App (4th) 160138, ¶ 71. However, when error occurred that “could not have changed the

outcome of the case—it could not have ‘tip[ped] the scales of justice against the defendant,’ ” it

is not considered prejudicial. People v. Wills, 2017 IL App (2d) 150240, ¶ 53, 92 N.E.3d 1057

(quoting People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410 (2007)).

¶ 71 For example, in Sebby, our supreme court determined the evidence was closely

balanced where the testimony from the State’s witnesses was largely consistent, but so was the

testimony of the defendant and his witnesses. Sebby, 2017 IL 119445, ¶ 61. The supreme court

stated the outcome of the case turned on how the fact finder resolved a “ ‘contest of

credibility.’ Sebby, 2017 IL 119445, ¶ 63 (quoting People v. Naylor, 229 Ill. 2d 584, 606-07,

893 N.E.2d 653, 667 (2008)). The supreme court concluded the evidence was closely balanced

because neither party presented extrinsic evidence to corroborate or contradict either version and

because both versions were credible. Sebby, 2017 IL 119445, ¶ 63.

¶ 72 In contrast, in People v. Davidson, 160 Ill. App. 3d 99, 119, 514 N.E.2d 17, 31

(1987), the court rejected a claim of plain error where the evidence admitted in error was

- 28 - cumulative of other evidence in the record. See also In re M.S., 2018 IL App (1st) 172659, ¶ 28,

103 N.E.3d 973; Wills, 2017 IL App (2d) 150240, ¶ 58, 92 N.E.3d 1057 (stating no plain error

where evidence at issue is cumulative of other evidence properly admitted). In that sense,

plain-error analysis requires the same kind of inquiry as does harmless-error review, the

difference being, in a harmless-error analysis, the State bears the burden of persuasion with

respect to prejudice, while under a plain-error analysis, the defendant bears the burden. People v.

Magallanes, 409 Ill. App. 3d 720, 727, 948 N.E.2d 742, 749-50 (2011).

¶ 73 A reviewing court may determine an error is harmless when “the improperly

admitted evidence is merely cumulative or duplicates properly admitted evidence.” In re

Rolandis G., 232 Ill. 2d 13, 43, 902 N.E.2d 600, 617 (2008).

¶ 74 Here, even if Shovan’s testimony regarding defendant’s appearance of

intoxication was considered improper, it was cumulative to Johnson’s testimony such that the

closeness of the evidence did not threaten to tip the scales of justice against defendant. As we

previously noted, the evidence without consideration of the HGN test at all was sufficient to

convict defendant. The testimony of Hall and Johnson, defendant’s appearance and his

performance of the field sobriety tests aside from the HGN test, which the jury was able to see in

the video, and his refusal to take the breath test were sufficient to find him guilty beyond a

reasonable doubt. Even considering defendant’s numerous offered explanations to discount the

State’s testimony, most of which he did not mention to the investigating officers, he has not

shown the evidence was so closely balanced that any error in allowing Shovan’s testimony about

his observations from the tests and report threatened to tip the scales of justice against him. Thus,

even if error occurred, it did not constitute plain error. “[A]bsent reversible error, there can be no

plain error.” People v. Smith, 2016 IL 119659, ¶ 39, 76 N.E.3d 1251.

- 29 - ¶ 75 III. CONCLUSION

¶ 76 For the reasons stated, we affirm defendant’s conviction and sentence for

aggravated DUI.

¶ 77 Affirmed.

¶ 78 JUSTICE TURNER, specially concurring:

¶ 79 While I concur in affirming the trial court’s judgment, I write separately because

it was unquestionable error for Shovan, the State’s expert witness, to opine on whether defendant

was impaired. Shovan based his opinion, in part, on his review of a video depicting the manner

in which a police officer administered the HGN test to defendant. Notably, Shovan was unable to

observe defendant’s eyes in the video recording. I further note Shovan rendered his opinion only

after considering hearsay from an officer’s police report. Accordingly, the opinion offered by

Shovan was inappropriate and would not have been properly admitted if an objection had been

made. Nonetheless, I concur because the error, though clear and obvious, did not rise to the level

of first-prong plain error. See supra ¶ 68.

- 30 -