Appeal from the Circuit Court of Du Page County. No. 02-CF-994. Honorable Michael J. Burke, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice O'malley
Following a jury trial, defendant, Steven M. Cantlin, was convicted of driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2002)). Defendant appeals, contending that (1) the trial court improperly allowed the State to introduce evidence of an open bottle of vodka found in defendant's car; (2) he was deprived of due process because the State destroyed the bottle before trial; and (3) he was not proved guilty beyond a reasonable doubt because the arresting officer testified, not from his personal recollection, but solely from reading his report. We affirm.
The evidence at trial revealed the following. State trooper Brian Suits testified that on December 12, 2001, he was patrolling Interstate 88. Shortly after midnight, he saw defendant's car briefly cross the lane marking about five times. He pulled defendant over. Suits noticed that defendant had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred speech. Suits had defendant perform field sobriety tests which, in Suits's opinion, defendant failed. Suits therefore arrested defendant for driving under the influence of alcohol. At the police station, defendant refused a breathalyzer test.
Sergeant Robert Meeder testified that he conducted an inventory search of defendant's car. Under a blanket behind the passenger's seat, he found a bottle of Gordon's vodka with the seal broken. Based on his personal and professional experience, he concluded that the bottle in fact contained vodka. He later disposed of the bottle. Due to the amount of open alcohol containers that the State police confiscate, policy calls for such containers to be destroyed rather than preserved as evidence.
After the State rested, defendant moved for a directed verdict. The trial court denied the motion. Scott Buxten then testified that he was with defendant that evening. Defendant drank three beers during that time but did not appear to be impaired. Defendant also testified that he had three drinks that evening but was not feeling any effects from them. He testified that the bottle of vodka in the backseat was from a camping trip two weeks earlier. He had not drunk from the bottle shortly before his arrest.
The jury found defendant guilty. The trial court sentenced him to 24 months' probation including 120 days of periodic imprisonment. After the court denied defendant's posttrial motion, he timely appealed.
Defendant raises two issues related to the vodka bottle found in his backseat. He first contends that the trial court improperly admitted evidence of the bottle because it was improper "other crimes" evidence. He asserts that the bottle established that he committed another crime, illegal transportation of alcohol (625 ILCS 5/11-202(a) (West 2002)), and was offered merely to establish his propensity to commit alcohol-related crimes.
Generally, evidence that a defendant committed other crimes is inadmissible merely to establish a defendant's propensity to commit crimes. People v. Manning, 182 Ill. 2d 193, 213 (1998). Other-crimes evidence may be admissible for other purposes, such as proving modus operandi, identity, motive, or intent. People v. Donoho, 204 Ill. 2d 159, 170 (2003). The admission or exclusion of evidence is within the trial court's discretion and its decision will not be overturned absent an abuse of that discretion. People v. Peeples, 155 Ill. 2d 422, 456 (1993).
We agree with the State that the evidence was introduced, not to prove that defendant previously committed some unrelated crime, but as circumstantial evidence that he committed the crime for which he was on trial. Evidence is relevant if it tends to make the existence of any fact of consequence in the action more or less probable than it would be without the evidence. People v. Hope, 168 Ill. 2d 1, 23 (1995). To convict defendant of driving under the influence of alcohol, the State had to prove that defendant was intoxicated and, therefore, had recently been drinking. See People v. Rhoden, 253 Ill. App. 3d 805, 809 (1993). Evidence that an open alcohol container was found in a defendant's car is circumstantial evidence that the defendant had been drinking. See People v. Moore, 279 Ill. App. 3d 152, 159-60 (1996); People v. Kappas, 120 Ill. App. 3d 123, 128 (1983). Accordingly, evidence that an open bottle of vodka was found in the passenger compartment of defendant's car was relevant to prove that he recently had been drinking. Moreover, evidence that is admissible to prove that a defendant committed the crime for which he is on trial need not be excluded merely because it tends to prove that the defendant contemporaneously committed some other crime with which he is not charged. People v. Ostrand, 35 Ill. 2d 520, 530 (1966), overruled in part on other grounds, People v. Bracey, 51 Ill. 2d 514, 519 (1972).
Defendant also contends that he was denied due process because the State did not preserve the vodka bottle. In People v. Newberry, 166 Ill. 2d 310 (1995), the supreme court clarified the circumstances under which the State is obligated to preserve evidence in a criminal prosecution. There, the defendant was charged with possessing a controlled substance. The State inadvertently destroyed the substance before trial and after the defendant had specifically requested that it be preserved. The supreme court held that the defendant's due process rights were violated because he was deprived of the opportunity to have the substance independently tested. Newberry, 166 Ill. 2d at 315.
In reaching this conclusion, the court distinguished Arizona v. Youngblood, 488 U.S. 51, 102 L.Ed. 2d 281, 109 S.Ct. 333 (1988), where the defendant was not deprived of due process because "no more could be said of the evidence 'than that it could have been subjected to tests, the results of which might have exonerated the defendant.' " Newberry, 166 Ill. 2d at 314-15, quoting Youngblood, 488 U.S. at 57, 102 L.Ed. 2d at 289, 109 S.Ct. at 337. Further, the court observed that "police do not have 'an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.' " Newberry, 166 Ill. 2d at 315, quoting Youngblood, 488 U.S. at 58, 102 L.Ed. 2d at 289, 109 S.Ct. at 337. Where the evidence is only " 'potentially useful,' " failing to preserve it does not violate due process unless the police acted in bad faith. Newberry, 166 Ill. 2d at 315, quoting Youngblood, 488 U.S. at 58, 102 L.Ed. 2d at 289, 109 S.Ct. at 337.
Here, there can be no question that the police acted in good faith. The unrebutted testimony was that the evidence was destroyed pursuant to a policy that, because of the volume of open alcohol seized by the State police, small amounts of open alcohol were not retained in evidence.
Moreover, it is not clear that the evidence was even "potentially useful." Defendant was not charged with an open-alcohol violation. Thus, even if the substance had been tested and found not to be alcohol, it would not have exonerated defendant. It would, at most, have neutralized one piece of circumstantial evidence against him. Therefore, the ...