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October 31, 1997


Appeal from the Circuit Court of Ogle County. Nos. 95--TR--4430, 95--TR--4431. Honorable John B. Roe, Judge, Presiding.

Released for Publication December 4, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Geiger, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Defendant, Gregory Holmes, appeals his convictions of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 1994)) and improper lane usage (625 ILCS 5/11--709(a) (West 1994)). Defendant argues that his convictions must be reversed and the cause remanded for a new trial because the trial court erred in refusing to (1) permit defendant to offer evidence that venue was improper; and (2) instruct the jury regarding the State's burden of proving venue.

In order to resolve the issues raised in this appeal, we must determine whether Public Act 89--288 (act), effective August 11, 1995 (amending 720 ILCS 5/1--6(a) (West 1996) and adding 725 ILCS 5/114--1(d--5) (West 1996)) should apply retroactively to relieve the State of the burden of proving venue during the trials of crimes that were committed before the effective date of the act, but were tried afterwards. After reviewing previous cases, the act, and its legislative history, we conclude that the act has no retroactive effect.

At trial, Dirk Heide testified that, on June 24, 1995, he was near the intersection of Kishwaukee and Meridian Roads at the border of Ogle and Winnebago Counties. While there, he saw a car, with at least one flat tire, off the right side of the road. When he approached the car, he saw defendant standing beside the car. After talking with defendant for a short time, Heide went to a nearby house and phoned the police.

David Smyth, defendant's friend, testified that defendant had been at Smyth's home sometime around 9:30 or 10 during the evening in question. Smyth also testified that, although defendant did not smell of alcohol, Smyth could tell that defendant had consumed a few drinks. Smyth added that he had called defendant's wife and asked if defendant could stay with him for the night.

Officer Rodney Smith, a deputy with the Ogle County sheriff's department, testified that, on the night in question, he received a call at about 11:30 p.m. regarding an accident at Kishwaukee and Meridian Roads. Officer Smith testified that defendant had bloodshot eyes and slurred speech, staggered when he walked, and failed the field sobriety tests Officer Smith administered. Officer Smith arrested defendant for driving under the influence of alcohol.

Defendant presented no evidence, but sought, instead, to establish through cross-examination that the crime, if any, occurred in Winnebago County rather than Ogle County. Defendant first attempted to raise this subject while cross-examining Greg Kunce, a deputy with the Ogle County sheriff's department and a volunteer fire fighter. The prosecutor objected when defendant's attorney began to question Kunce about the boundary between Ogle and Winnebago Counties. The trial court sustained the objection and indicated that it would entertain argument about the question during a recess. After hearing argument and considering the question during the lunch recess, the trial court reaffirmed its ruling that it would not permit defendant to present evidence regarding whether the car was in Ogle County or Winnebago County. In so holding, the court explained:

"This new revision relating to venue [Public Act 89--288] *** does apply to this case, and *** venue isn't an element that the State has to prove in this case because I believe that this new section applies to this case and I believe that it applies to this case because I believe that the section is procedural rather than substantive and therefore has a retrospective application. Defendant's not losing any substantive right, its just setting forth a different procedure for raising an issue relative to venue *** ."

After the court issued its ruling, the defense attorney explained, in an offer of proof, that he had planned to elicit testimony from Kunce that defendant's car was found in Winnebago County. Defendant's attorney further explained that he was going to pursue a similar line of questioning with Officer Smith, who had previously testified that the car had been found in Winnebago County and that no one had seen it being driven in Ogle County. The court acknowledged defense counsel's offer and reiterated that it was not going to permit the evidence.

Thereafter, employing similar reasoning, the trial court rejected defendant's proposed instructions dealing with venue (see Illinois Pattern Jury Instructions, Criminal, Nos. 2.07, 2.08 (3d ed. 1992) (hereinafter IPI Criminal 3d)). The jury found defendant guilty of both driving under the influence and improper lane usage. The trial court denied defendant's motion for a new trial, sentenced him to one year of probation, and imposed a $500 fine. Defendant filed a timely notice of appeal.

On appeal, defendant argues that the trial court erred in prohibiting him from challenging the State's ability to prove venue. Defendant contends that Public Act 89--288 does not apply in this action and that, under the law as it existed at the time of the offense, the State was required to prove, as ...

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