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People v. Oelerich

Court of Appeals of Illinois, Second District

February 1, 2017

MARK D. OELERICH, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County. No. 12-CF-3502 Honorable James K. Booras, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.



         ¶ 1 After a jury trial, defendant, Mark D. Oelerich, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and aggravated driving under the influence of cannabis (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2012)). He was sentenced to concurrent terms of 24 years' imprisonment for first-degree murder and 14 years for aggravated DUI. On appeal, defendant contends that his conviction of murder should be reduced to reckless homicide (720 ILCS 5/9-3(a) (West 2012)) because the State failed to prove beyond a reasonable doubt the mens rea for murder. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The indictment charged that, on or about November 21, 2012, defendant committed first-degree murder in that he drove his vehicle at approximately twice the posted speed limit, intentionally crossed the center divider, crashed into a vehicle that was going in the opposite direction, knew that his act created a strong probability of death or great bodily harm to another, and caused the death of Aracely Villasenor. Defendant was also charged with three counts of aggravated DUI, all based on the allegation that he had driven with cannabis in his system, thereby killing Villasenor (625 ILCS 5/11-501(d)(1)(F) (West 2012)) and causing great bodily harm to two children, Isabel Romero and Jeremy Suarez (625 ILCS 5/11-501(d)(1)(C) (West 2012)).

         ¶ 4 We summarize the trial evidence. David Prus, a Round Lake police officer, testified as follows. On November 21, 2012, at approximately 9:15 a.m., he arrived at the scene of a traffic crash on Cedar Lake Road, which runs north-south with a lane going each way and, at the time, had a posted speed limit of 35 miles per hour. A white Cadillac was in the northbound lane, facing northeast; a dark Nissan Quest minivan was in the southbound lane. The Cadillac's airbags had been deployed, and it had very heavy front-end damage. Prus exited his squad car and walked toward the Cadillac. The air bags obscured his view of the interior, but he saw a hand appear between an airbag and the driver's-seat window. Prus tried to open the driver's door but could not. He told the driver to stay still. Prus then walked toward the Nissan; the front end was heavily damaged and was emitting smoke. The driver, Villasenor, was pinned to her seat by the steering wheel, and the dashboard had been pushed forward, trapping her. She did not respond to Prus's attempt to speak with her. An infant was in a car seat, and two older children sat in the rear. Prus took the three minors out; Villasenor was extricated later.

         ¶ 5 Prus testified further that he returned to the Cadillac and saw that the driver was gone. Walking to the rear of the car, Prus saw defendant walking south, away from the scene. Sergeant Robert Bell had arrived on the scene and ran after the man. Learning later that the driver of the Cadillac had been taken into custody, Prus notified the department's major-crash action team.

         ¶ 6 Bell testified as follows. He saw defendant walking away by himself. Defendant did not appear to be trying to run away or hide from Bell. Bell caught up to defendant and told him to stop. Defendant did not look at Bell but kept looking straight ahead and continued walking. Defendant had blood on or near his lip, was smoking a cigarette, and was not wearing shoes. Bell got in front of defendant and started walking backward, facing defendant and telling him that he needed to stop so that Bell could check on him and see that he was all right. Defendant told Bell, " 'No. I'm fine. I don't need to stop. I'm walking home.' " They continued walking. Defendant kept staring ahead but not looking at Bell. At one point he said, " 'My name is Robert Paulsen.' " He also said, " 'I am walking to Italy.' " Bell called for backup. He continued to walk backward in front of defendant, threatening to use force and telling him numerous times, " 'You are going to stop.' " Defendant responded, " 'No, I'm not.' "

         ¶ 7 Bell testified that he and his backup, officer Segreti, each took one of defendant's arms and tried to take him into custody. As Bell tried to put defendant's arm behind him, defendant began to pull away from the officers and move forward. The officers put him onto the ground. They tried to put his arms behind him and told him to stop resisting, but he kept swinging his arms and trying to stand up, and the officers kept trying to push him back down. Bell felt heavy resistance from defendant; it was difficult to keep him on the ground. At one point, Bell got onto defendant's back and struck defendant with his hands and knees, but this just increased defendant's resistance. Bell tried to put a handcuff onto defendant's left arm while Segreti held defendant's right arm; defendant did a "push up type maneuver, " sending Bell flying several feet backward and landing on his elbow.

         ¶ 8 Bell testified that, after he got up, he ran back to assist Segreti. They struggled with defendant some more, and Segreti then tased defendant twice. Defendant staggered from the middle of the road into a ditch on the side, and the fight continued. By then, more officers had arrived. Defendant continued to resist, swinging his arms and being tased once or twice more. It took seven officers to complete taking defendant into custody. Defendant's strength that evening had been "[s]uper human [sic]." He had displayed "unbelievable force." Defendant was handed off to officer Brandon Gullifor and driven in an ambulance to the hospital. Bell returned to Prus and briefed him on what had just happened.

         ¶ 9 Gullifor testified on direct examination as follows. He helped the other officers to subdue defendant. It took about two minutes. Inside the ambulance, defendant was handcuffed to a cot but kept flailing his legs and had to be further restrained. Initially, defendant identified himself as Mark Paulsen. Gullifor asked whether he had been driving the Cadillac; defendant said yes. Gullifor asked him whether there had been any passengers; defendant said no.

         ¶ 10 Gullifor testified that, at the hospital, the doctor treating defendant asked him whether he had taken anything or was under the influence of anything. Defendant responded that he had smoked "K2" earlier. Gullifor recognized "K2" as a name for synthetic cannabis. He did not smell alcohol or any unusual odors coming from defendant. Gullifor also spoke to defendant's parents at the hospital. He asked them whether defendant had any medical or psychological issues. Defendant's mother said no. Gullifor then asked that the doctors obtain a blood sample, which they did. Later that morning, when defendant had been taken to the police station and placed into a holding cell, defendant provided a urine sample.

         ¶ 11 Gullifor testified on cross-examination that he had received only limited training on identifying narcotics. He had seen people who were under the influence of K2; they acted much as defendant had behaved. Gullifor had had only "[v]ery limited" training on identifying mental illnesses; he had not been taught that mentally ill people can exhibit extraordinary strength.

         ¶ 12 Gullifor testified that, in the ambulance, defendant yelled and grunted at him. He also told Gullifor that his name was Robert Paulsen and that Robert Paulsen had died in the crash. At the hospital, when defendant told the emergency-room doctor that he had smoked K2 earlier, Gullifor took him to mean earlier in the evening. He never asked defendant how much earlier or how much K2 he had smoked. Defendant also told the doctor that he had been using cannabis and texting. Later on, though, he apologized to the doctor for having lied about texting and having lied about "everything." Defendant never told the doctor that he had used dimethyltryptamine (DMT), another "designer drug."

         ¶ 13 In the remainder of his testimony, Gullifor stated as follows. Eventually, defendant identified himself properly. The doctor asked him, " 'What happened tonight?' " Defendant answered that he had smoked marijuana and K2 earlier. He did not mention DMT.

         ¶ 14 Jennifer Bash of the Illinois State Police, qualified as an expert on forensic toxicology, testified as follows. After receiving the DUI kit for defendant, she tested the urine sample for the presence of drugs and recorded the results. She concluded to a reasonable degree of scientific certainty that metabolite of tetrahydrocannabinol (THC), the active ingredient in cannabis, was present in defendant's urine. She detected only THC metabolite in defendant's urine; she saw no evidence of polysubstance abuse. She did not measure the level of THC metabolite in the urine. DMT, a hallucinogen, has a potential detection time of "upwards of six hours." Bash had tested for it once or twice. K2 is a common name for synthetic cannabinoids, for which a handful of laboratories do test, Bash testified, but not her own. These compounds do not have exactly the same effects as cannabis; K2 users can become more agitated. Bash tested defendant's blood sample for alcohol only, but there is no blood test for THC metabolite. Per laboratory policy, the blood was not tested for any drugs not detected in the urine sample.

         ¶ 15 Joseph Manges, a Grayslake police detective whom the court qualified as an expert on accident reconstruction, testified as follows. On November 21, 2012, he led the Lake County major crash assistance team (MCAT) investigation of the accident scene. On arriving, he saw the Cadillac on the east side of the road and the Nissan Quest on the west side; both vehicles were heavily damaged in the front. Manges walked the scene, recording various views with a video camera. The video was played for the jury. The MCAT examined both vehicles, made various measurements, and recovered information from the Cadillac's OnStar system and its crash-data retrieval system (CDR)-the Nissan Quest lacked these features. The court admitted a printout obtained by subpoena and admitted the OnStar recording.

         ¶ 16 The OnStar recording was played for the jury. It lasted 47 seconds. The operator initially asked defendant what had just happened. Defendant replied, "Oh, um, I was driving because I wanted to have the great DMT trip of my entire life. And I cannot die. And that everything is good in life-everything is good. Life is *** the greatest thing I've ever had in my entire life." The operator again asked defendant what had happened. He replied, "I went head-on into a car." The operator asked how many people were hurt. Defendant replied, "No one's injured."

         ¶ 17 Manges testified that the CDR recorded events that had occurred 2.5 seconds before the crash. The printout described "event record one" as occurring 2.5 seconds to 0.5 seconds before the crash and showed that the brake-switch circuit had been off during that period. This implied that there had been no braking at all until 0.5 seconds before impact.

         ¶ 18 After being qualified as an expert in accident reconstruction, Roger Barrette testified as follows. On November 21, 2012, he arrived at the crash scene at about 11:15 p.m. Barrette supervised the measurements, photographed the scene, and inspected the two vehicles. The MCAT found several gouge marks showing where the maximum force in the collision had occurred. Barrette also received data from the MCAT, including information from the Cadillac's CDR, which had recorded approximately 2.5 seconds of precrash data and 0.5 seconds of postcrash data. At the time of impact, the two vehicles' "closing speed"-how fast they were approaching each other-was approximately 84 miles per hour. The Cadillac had been going between 65 and 71 miles per hour, the Nissan approximately 14 or 15 miles per hour. The posted speed limit was 35 miles per hour. The force of the Cadillac hitting the Nissan "went straight through the center mass" of the Nissan, pushing it straight back from the right portion of its lane to a resting position on the gravel shoulder about 50 feet from the point of impact. It was angled toward the right, indicating that the driver had steered it to the right within moments of impact. The Cadillac also came to rest about 50 feet from the point of impact, but it had rotated about 300 degrees to the east, meaning that it had originally been facing slightly to the northwest.

         ¶ 19 Barrette testified that he had concluded that there had been "no braking [of the Cadillac] leading up to the time of impact." The brake lights were off "all the way up to impact." Within a second before impact, the Cadillac's driver "steered rapidly and hard" to the left and into the ...

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