APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
541 N.E.2d 700, 185 Ill. App. 3d 510, 133 Ill. Dec. 489 1989.IL.924
Appeal from the Circuit Court of Union County; the Hon. D.D. Bigler, Judge, presiding.
JUSTICE RARICK delivered the opinion of the court. HARRISON and GOLDENHERSH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RARICK
The defendant, Gary Hileman, was convicted of leaving the scene of an accident (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-402) by the circuit court of Union County sitting without a jury. Defendant was sentenced to 90 days' probation. As incidents of that probation, defendant was ordered to pay a $100 fine and restitution, which is to be determined by the probation department. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt and that the order of restitution is invalid.
At trial, Deborah Cunningham testified that at 10:30 p.m. on August 16, 1987, while driving a 1986 Ford Escort wagon on an unmarked blacktop road, she saw a rust-colored AMC Gremlin weaving on the road toward her from approximately 100 feet away. She pulled off of the road as far as she could and stopped, but the other car hit the left front fender of her car, then swerved away from her and kept going. She was stopped at the time of the accident. She heard a "loud hit and scrape" of the impact and felt "not a big jolt." She opined that the Gremlin was traveling 55 miles per hour. She identified defendant, who lived down the road from her, as the driver of the Gremlin, because her car lights flashed on him as he weaved toward her. She could only state that defendant had a growth of beard and was not wearing a suit at the time of the accident. She could not remember if he wore a hat or the kind of shirt, or otherwise identify defendant's clothing. The only other motor vehicle in the area was her father's, who was some distance behind her. After the accident, her car door was difficult to open because a dent, which was caused by the accident, pinned the door shut. From photographs of her car, Ms. Cunningham showed the court the damage caused by the accident. Ms. Cunningham admitted that although she told the arresting officer that the car that hit her vehicle was either a Hornet or Gremlin, her written statement to police reflects that it was a Hornet.
Ms. Cunningham's written statement was admitted into evidence. The statement stated, in part, that defendant was driving a rust-colored Hornet and that defendant "did not appear to realize he had hit [Ms. Cunningham]."
Sherman Mays, Ms. Cunningham's father, testified that on August 16, 1987, he was travelling 300 yards behind her when she was involved in an accident. He did not see the accident but did see defendant, who almost ran Mays off the road. Defendant was driving a brown Hornet, and Mays saw defendant's face when Mays' lights flashed on him. He opined that he observed defendant, whom he previously knew, between 5 and 10 seconds. The Hornet was travelling between 30 and 40 miles per hour.
Scott Harvel, Union County deputy sheriff, testified that he investigated the accident involving Ms. Cunningham. At approximately midnight on August 16, 1987, he went to defendant's residence. Defendant stated that he had not gone anywhere in the previous two or three hours. Harvel observed a brown AMC Gremlin, which had a dent to the driver's door and to the rear panel. The dent started at the driver's door and ended at the rear quarter panel. Mays observed fresh mud on the Gremlin but did not recall seeing paint which did not match the color of the Gremlin. After Harvel found the scrape, he started to question defendant about it, and defendant told him it was time to leave.
Defendant testified that on August 16, 1987, at approximately 10:30 p.m., he and his Gremlin were at home, and they had been at home since 11 a.m. that morning. Pictures of the Gremlin admitted into evidence showed no damage to the driver's door or the rear left quarter panel, and defendant denied that he had any repair work done in that area since Ms. Cunningham's accident. Defendant opined that Mays and Ms. Cunningham were not telling the truth, but he could give no reason why they would be untruthful.
In finding defendant guilty, the court stated:
"As to the testimony offered, and I think that everybody in Court heard it, Mrs. Cunningham testified that there was an accident. I don't think that there was any question that there was an accident. As to the paint transference she testified that the initial blow was on a rubber bumper. I can understand why there wouldn't been any paint from a glancing blow. There doesn't appear to be much damage to the Cunningham vehicle. However, this is not a civil case and I [ sic ] not asked to determine the amount of the damage. The only thing I am required to do is to determine and ascertain from the facts whether or not an accident occurred, and whether or not the defendant, Mr. Hileman, was driving the car that left the scene. The Court has heard two witnesses testify, Mrs. Cunningham, who made a specific I.D. There was no question in her mind that the defendant was driving the vehicle. The testimony of the witness who came along immediately after the accident, that he saw the car, and that he saw the defendant, Mr. Hileman, driving the car. The information charges leaving the scene of an accident, that the defendant knowingly failed to stop at the scene or to report such an accident, which resulted in vehicle damage. There appears to have been vehicle damage. I am not saying how much damage there was."
Initially, defendant contends that, in order to obtain a conviction under section 11 -- 402(a), the State must prove that he knowingly left the scene of an accident and that the State failed to prove that he knew that an accident occurred. Defendant's argument is based on the similarity in language of sections ...