Rehearing denied November 28, 2016
from the Circuit Court of La Salle County, No. 12-CF-608; the
Hon. Cynthia M. Raccuglia, Judge, presiding.
Michael J. Pelletier and Ann Fick, of State Appellate
Defender's Office, of Elgin, for appellant.
Towne, State's Attorney, of Ottawa (Jasmine Morton, of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Justices Holdridge and Wright concurred in the
judgment and opinion.
1 Defendant, Loren Swift, appeals from his conviction for
aggravated driving under the influence (DUI). He argues first
that the trial court should have dismissed the case where the
indictment was deficient. Further, defendant contends that
the State failed to prove the element of proximate cause
beyond a reasonable doubt. We affirm.
3 On January 2, 2013, the State charged defendant with two
counts of aggravated DUI (625 ILCS 5/11-501(a)(6), (d)(1)(C)
(West 2012)). The State would later drop one of those
charges. The indictment on the remaining count read as
"On or about, August 17, 2012, in LaSalle County,
Illinois, *** defendant[ ] committed the offense of:
aggravated driving under the influence of alcohol (Class 4
In that the said defendant drove a Chevy Trailblazer north on
County Highway 15 at a time when there was any amount of
drug, substance or compound in the defendant's blood,
breath, or urine resulting from the unlawful use or
consumption of cannabis, and in committing the violation the
defendant was involved in a motor vehicle accident that
resulted in great bodily harm to Robert Miller."
4 The trial court arraigned defendant on February 1, 2013. On
that date, the State tendered the then two-count indictment
to the defense. Defense counsel stated: "We'll
acknowledge receipt of the two count indictment, waive
reading of that and recitation of penalties and enter a plea
of not guilty and demand trial by jury, please."
5 Over the ensuing months, defendant filed a number of
pretrial motions. In one of those motions, defendant moved to
dismiss the charges against him on the grounds that the
statute under which he was charged had been amended to carve
out an exception for the lawful medical use of cannabis.
Defendant argued that his equal protection and due process
rights would be violated if the new standard did not apply to
him. At a hearing on the matter, defense counsel declared
that he had "read the whole act five times." The
trial court denied the motion.
6 Defendant's jury trial commenced on March 10, 2014. The
State's first witness was Dr. Richard Anderson, a trauma
surgeon at St. Francis Hospital in Peoria. Anderson testified
that defendant was brought to the hospital on August 17,
2012, and a urinalysis was conducted as a standard part of
trauma procedures. He testified that the urinalysis
toxicology showed the presence of cannabinoids in
defendant's system. He explained that cannabinoids are
derivatives of marijuana and that their presence in a urine
sample is indicative of prior marijuana use.
7 After Anderson was dismissed, defense counsel moved to
dismiss the indictment, arguing that it was defective on its
face. Counsel argued that while the statute referenced a
statutory subsection that required proximate cause, the
actual indictment did not contain that element. Counsel
characterized that as a fatal flaw, arguing that the case
should be dismissed. The State argued that the phrase
"resulted in great bodily harm, " as used in the
indictment, had the same meaning as proximate cause. The
State also referenced a discussion the parties had held
regarding jury instructions that took place the previous day
in the court's chambers. Citing that discussion, the
State suggested defense counsel's argument was not made
in good faith.
8 The trial court denied defendant's motion and directed
the State to amend the indictment. The court commented:
"[I]t's just a matter of words because resulted in
does, indeed, mean the cause." Accordingly, the court
found that amending the indictment to include the proximate
cause element was technical rather than substantive and thus
did not require the State to go back to the grand jury. The
court also found that amending the indictment to include the
proximate cause element would cause no surprise to defendant.
9 The State's next witness was Miller, the victim in the
case. Miller testified that on the date in question he was
driving his pickup truck with a trailer attached. After
loading farm equipment onto his trailer, Miller proceeded
north on County Highway 15 toward the town of Kernan. Miller
described that stretch of Highway 15 as "gently rolling,
[with a] roller coaster-type effect." Miller testified
that Highway 15 is a two-lane road with a three-foot
10 As Miller turned onto Highway 15, he noticed in his mirror
that a piece of the equipment on his trailer had come loose.
Concerned that the equipment might fall off the trailer when
the truck crossed railroad tracks, Miller decided to pull
over. Citing his experience as a truck driver, Miller
testified that he knew the best place to pull over would be
the top of a hill. He explained that the top of a hill is
ideal both to increase the visibility of his truck and to
"get a truck moving again" upon restarting. Miller
testified that he found an appropriate spot "on top of a
little rise, " and that he "pulled off the road as
far as I safely could." Miller explained that to the
right of the three-foot shoulder was a ditch with a steep
drop-off. He testified that the wheels on his truck and
trailer were as close to that drop-off as possible and were
then "about halfway off the pavement."
11 Upon stopping, Miller checked his driver's side mirror
and saw the running lights of a vehicle cresting a hill
behind him. He activated his emergency flashers and checked
his mirror once again. This time, Miller saw nothing behind
him. He alighted from his truck and walked back to the
trailer. He grabbed the loose piece of iron, then noticed
that another piece of iron had come loose as well. Miller
took the first piece of iron to the bed of his truck and
turned back toward the trailer to retrieve the second loose
piece. As he returned to the trailer, he noticed a vehicle
traveling toward him. Miller testified: "I noticed a
vehicle coming from the south at a rate of speed that I
thought was faster than should have been traveling knowing
that *** I was there. Knowing that I was *** partially
obstructing the road." Miller testified that the vehicle
he saw was a TrailBlazer.
12 Miller saw the TrailBlazer hit his trailer. He testified
that he did not hear the squealing of tires indicative of
braking before the impact. Miller recalled spinning, as well
as seeing a vehicle in the air. His next recollection was of
lying in the middle of the road. His shoulder was on the
center line with his head facing south. Miller testified that
he was just under the TrailBlazer's driver's door.
Miller spoke to the driver of the TrailBlazer as they waited
for help to arrive. Miller identified defendant as the
13 Miller was taken by ambulance to a hospital in Streator,
then later via helicopter to St. Francis Hospital in Peoria.
Miller testified that he sustained a number of injuries,
including a broken femur, a broken disc in his lumbar spine,
and three breaks in his pelvis. His injuries required eight
or nine surgeries, including, in Miller's words,
"five serious surgeries."
14 On cross-examination, Miller testified that he was aware
of a large parking lot off Highway 15, approximately 25 to 50
yards north of where the accident took place. That parking
lot was adjacent to Harv's Auto Body Repair. He explained
that he chose not to pull in there because backing out onto
Highway 15 with his trailer would have been difficult and
unsafe. It was for this same reason that Miller chose not to
pull off onto a smaller street.
15 Lawrence Majerus of the La Salle County sheriff's
office testified that he responded to the scene of the
accident. Majerus briefly spoke to defendant on the scene and
again later at the hospital. Defendant told Majerus that he
had been glancing at a cornfield, and when he brought his
eyes back to the road he saw the truck and trailer, and was
unable to stop or swerve. Majerus described the relevant
stretch of Highway 15 as follows: "There are dips in the
road but they're not to the point where you come up over
a rise and you're on top of somebody." Majerus
confirmed that the accident occurred at the top of one of