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                              Appellate Court                            Date: 2017.07.06
                                                                         08:53:03 -05'00'




                   People v. Rudell, 2017 IL App (1st) 152772



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           SARA RUDELL, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-15-2772



Filed             April 25, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 14-217592; the
Review            Hon. Clarence Lewis Burch, Judge, presiding.



Judgment          Affirmed.


Counsel on        Jason R. Epstein, of Law Offices of Jason R. Epstein, of Chicago, for
Appeal            appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Jon Walters, and David J. Welch, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                  with opinion.
                  Justices Pierce and Mason concurred in the judgment and opinion.
                                              OPINION

¶1       Sara Rudell challenges her conviction for child endangerment after leaving her
     six-month-old baby alone in a car. On appeal, she argues (i) the insufficiency of the evidence
     undermines her conviction, (ii) her trial counsel should have been allowed to move to suppress
     her statements to police after trial testimony had begun, (iii) the trial court should have granted
     her a new trial based on newly discovered evidence, and (iv) cumulative error requires
     reversal.
¶2       We reject each of these claims and affirm. There was sufficient evidence to support
     Rudell’s conviction, based on the trial court’s evaluation of witness credibility. The trial court
     did not abuse its discretion in refusing to hear a midtrial suppression motion, considering the
     details supporting that motion should have been recognized before trial. Nor did the trial court
     abuse its discretion in denying the motion for a new trial because Rudell’s “newly discovered
     evidence” could have been discovered before trial, was not material, and was not sufficiently
     conclusive. And as we find no error, we reject her claim of cumulative error.

¶3                                          BACKGROUND
¶4       Rudell was charged with endangering the life of a child and public intoxication. She
     elected to waive a jury trial.
¶5       Chicago police officer Kevin Zia testified that on September 12, 2014, he was on patrol
     around 1 a.m. when a person flagged him down, telling him that a child had been left alone
     inside a car. Officer Zia went to the car (on the 1600 block of West Erie Street in Chicago) and
     found a roughly six-month-old baby in a baby seat in the rear of the car. The baby, who was
     crying, had on a onesie with no pants, socks, or shoes. The car was not running, and the rear
     window was open. Officer Zia contacted the fire department, and about three minutes passed
     between Officer Zia finding the baby and the baby being removed from the car.
¶6       Officer Zia then ran the car’s license plate number through the police database and found it
     registered to Sara Rudell at an address about two blocks away. Officer Zia went to that address
     and found Rudell sitting on the curb with an adult male. Zia smelled a strong odor of alcohol on
     Rudell’s breath. He asked Rudell if she knew where her child was. Rudell responded that she
     had taken the baby to a party that evening, had drunk alcohol at the party, and had driven back
     but could not remember how her car came to be parked on West Erie Street and forgot that her
     child was inside. After speaking with Rudell, Officer Zia placed her in custody.
¶7       On cross-examination, Zia testified that when he first saw Rudell sitting on the curb, he
     asked her if she was Sara Rudell because she was the primary suspect: Zia knew that the car
     was registered to her and that the baby was in the car, so Rudell was not free to leave.
¶8       Rudell’s attorney then asked for leave to file a motion to suppress Rudell’s statements to
     police because she had not been Mirandized at that point. The police reports (provided in
     discovery) summarized Rudell’s statements to police: she had gone to a friend’s house and
     gotten drunk; after the party, Rudell parked her car and walked home but had no memory of
     walking home and had forgotten that her baby was in the car. The report stated that Rudell
     “was then placed in custody and transported” and noted that Rudell’s breath smelled strongly
     of alcohol. Her attorney argued that the police reports, stating that Rudell had been placed in
     custody after being questioned by police, conflicted with Officer Zia’s testimony that Rudell


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       was not free to leave (and was therefore in custody) before police questioned her. The trial
       court denied leave to file this motion, stating that Rudell’s attorney should have realized from
       reading the report before trial that Rudell had not been Mirandized.
¶9          Zia further testified that Rudell appeared extremely intoxicated, a 10 on a scale of 1 to 10.
       Rudell had stated she drove the car home, but Zia admitted that this statement was not in his
       police report. And the report also did not recite that the man sitting on the curb with Rudell was
       Joseph Rothenbuehler, Rudell’s boyfriend, and Rothenbuehler told Zia that he had been inside
       the house and not out with Rudell.
¶ 10        Chicago police officer Calicdan, also on patrol that night, testified that when the police
       found Rudell, she was arguing with Rothenbuehler and crying. Rudell gave off a strong odor of
       alcohol. She told police that after drinking at a friend’s house, she drove home but could not
       remember where she parked. She said her baby was in the car and she had gone to get
       Rothenbuehler so he could help her find the car. On cross-examination, Officer Calicdan
       admitted the police reports did not include Rudell’s statement that she had sought out
       Rothenbuehler to help her.
¶ 11        At the conclusion of the State’s case, Rudell’s attorney moved for a directed verdict. The
       trial court inquired about the child endangerment statute, which provides, “a trier of fact may
       infer that a child 6 years of age or younger is unattended if that child is left in a motor vehicle
       for more than 10 minutes.” The trial court referred to this as a “permissive presumption”: “if
       we have an inference which you just admitted to, a child in a car under the age of six, an
       inference goes unrebutted, unrebutted becomes a presumption.” Rudell’s attorney argued that
       he was not contesting that a crime had occurred, only who had committed it. The trial court
       denied the motion for a directed verdict.
¶ 12        Jamie Griffith, a Cook County sheriff’s deputy, testified in Rudell’s defense that on that
       evening, Rudell and Rothenbuehler had come to Griffith’s home for 45 to 60 minutes with
       their baby and dog. They left around midnight. Rudell was extremely inebriated and could
       barely walk, so Griffith helped her to her car and put her in the passenger seat. Rothenbuehler
       was driving and said they were going home, a 5- to 10-minute ride.
¶ 13        Rothenbuehler, the baby’s father, testified that on that evening he and Rudell had been at
       Griffith’s home with their baby and dog. Rudell was intoxicated, so much so that it “was a little
       surprising to me.” Rudell did not drive the car home. It took about five minutes for them to get
       home, and when they did, Rudell got out of the car first. Rothenbuehler then took some
       groceries out of the car.
¶ 14        On cross-examination, Rothenbuehler testified that he and Rudell had been at a barbecue
       before going to Griffith’s house and Rothenbuehler drank three beers. He did not remember
       exactly how much time they spent at Griffith’s home but thought they left before midnight. He
       put the baby in the car while Griffith helped Rudell in. They went directly home and parked
       about a block from their home. Rothenbuehler and Rudell argued, and Rudell got out of the car
       and took the dog. Rothenbuehler took the groceries to the front porch and returned to the car
       because he realized that Rudell did not have the baby. Rothenbuehler started to panic and was
       about to call the police when the police arrived.
¶ 15        On redirect examination, Rothenbuehler testified that he had assumed that Rudell had
       taken the baby with her and when he took in the groceries, he saw Rudell lying on a hammock
       on the front porch and realized the baby was still in the car. Five to ten minutes elapsed
       between the time he left the car and the time he realized the baby was missing. He ran back to

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       the car, but the baby was gone, and the police were not there. When he spoke to the police, they
       told him to go home and go to bed.
¶ 16        On recross-examination, Rothenbuehler testified that he didn’t remember if the police had
       asked him if he drove the car. He denied telling the police that he had not been with Rudell that
       evening or saying that he had been at home while Rudell was out.
¶ 17        Officer Zia testified in rebuttal that he did ask Rothenbuehler if he had been with Rudell
       that night, but Rothenbuehler told him he had been inside the house. On cross-examination, he
       admitted that the police report did not contain Rothenbuehler’s statements.
¶ 18        The trial court found Rudell guilty of both charges and sentenced her to six months of
       supervision, parenting class, and drug and alcohol treatment. In discussing the sentence, the
       trial court then elaborated on its reasoning for finding Rudell guilty: “When it comes to a child
       and I’m not saying a mother is the sole responsibility but to me I remember mothers that was
       the strongest instinct in the world. To take a dog over a child I mean something’s wrong with
       that picture. I don’t care how old you are. You are going to take a pit bull and leave your child
       in the car? *** [A]s parents we can’t negate nor give anyone else responsibility for our child.
       The father should have looked out for the child to make sure the child went before the
       groceries. *** The mother should have made sure that the child went before the dog. Both of
       them are responsible. But under the facts of this case I don’t believe a word that the father
       said.”
¶ 19        Commenting further on Rothenbuehler’s credibility, the trial court said, “I did not believe
       the testimony. I found the testimony to be patently unbelievable. Incredible. All right? That’s
       the way—I believe that she drove the car, she got there. He was there. He wanted to know
       where his child was at. She didn’t even know where the car was at. They left the house at
       12:00, it’s five minutes away. What happened within an hour. One hour from 12 to 1? What’s
       going on between one hour? No one knows.”
¶ 20        Rudell moved for a new trial, arguing (i) the State had not proven her guilty beyond a
       reasonable doubt and (ii) her statements to police should have been suppressed. Rudell also
       provided statements from two potential new witnesses that Rothenbuehler had been with
       Rudell at the barbecue earlier that day and a video of the barbecue that showed Rothenbuehler
       present with Rudell. The trial court denied the motion for a new trial.
¶ 21        Though Rudell’s brief states that she is appealing her conviction for public intoxication,
       the brief contains no argument as to that conviction, and so we find it waived. Ill. S. Ct. R.
       341(h)(7) (eff. Jan. 1, 2016) (points not argued in appellant’s brief are waived).

¶ 22                                             ANALYSIS
¶ 23                        Evidence Was Sufficient to Support the Conviction
¶ 24       When challenging the sufficiency of the evidence, the relevant inquiry, after viewing the
       evidence in the light most favorable to the prosecution, involves whether any rational trier of
       fact could have found the essential elements of the crime beyond a reasonable doubt. People v.
       Campbell, 146 Ill. 2d 363, 374 (1992). As a reviewing court, we will not substitute our
       judgment for that of the trier of fact on questions going to the weight of the evidence or the
       credibility of the witnesses. Id. at 375. And we will not reverse a criminal conviction unless the
       evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of
       the defendant’s guilt. Id. We leave the credibility of witnesses for the trial court, and we will


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       not reverse a conviction based on contradictory evidence presented by witnesses. People v.
       Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).
¶ 25       A person endangers a child when he or she knowingly causes or permits the life or health of
       a child to be endangered or the child to be placed in circumstances that endanger the child’s life
       or health. 720 ILCS 5/12C-5(a) (West 2014). Further, “[a] trier of fact may infer that a child 6
       years of age or younger is unattended if that child is left in a motor vehicle for more than 10
       minutes.” 720 ILCS 5/12C-5(b) (West 2014).
¶ 26       Rudell begins by arguing that the evidence against her was insufficient, having been based
       solely on her drunken confession to police. This is incorrect: uncontested evidence (including
       from Rudell’s own witnesses) established that the baby had been left unattended in the car for
       upwards of an hour, though the exact time frame is imprecise. But given the amount of time it
       would have taken for the baby to be discovered and the fire department to arrive, the time the
       baby was left unattended was well past the 10-minute mark. On its own, this evidence was
       sufficient to establish the elements of the statute. The accuracy of Rudell’s statements to police
       (both police officers’ testimony and written reports) presented a matter of witness credibility,
       and cross-examination fully brought out inconsistencies between the testimony and reports.
       Ultimately, the question becomes whom the trial court believed—and the trial court found
       Rothenbuehler’s testimony incredible, explaining that the evidence showed Rudell had driven
       the baby home herself and then, in her intoxication, forgot the car’s location. Siguenza-Brito,
       235 Ill. 2d at 228 (witness credibility within province of trier of fact); see also People v.
       Wilkenson, 262 Ill. App. 3d 869, 875 (1994) (finding sufficient evidence of child
       endangerment despite inconsistencies between police testimony and arrest reports and despite
       possible alternative explanation for evidence).
¶ 27       Rudell also takes issue with the trial court’s interpretation of subsection (b), which states
       that a trier of fact “may infer” a child is unattended when left alone in a car for more than 10
       minutes. 720 ILCS 5/12C-5(b) (West 2014). The trial court characterized the “may infer”
       language as a “permissive presumption” or an “unrebutted” inference that “becomes a
       presumption.” Rudell argues that the trial court turned the “may infer” language into an
       unconstitutional mandatory presumption struck down by our supreme court in People v.
       Jordan, 218 Ill. 2d 255, 265-67 (2006). The earlier version of this same law stated that “there is
       a rebuttable presumption” that a person endangered a child by leaving that child unattended in
       a car for more than 10 minutes. 720 ILCS 5/12-21.6(a), (b) (West 2002). Jordan held this
       language to be an unconstitutional mandatory presumption conflicting with the presumption of
       innocence and shifting the burden of persuasion to the defendant. 218 Ill. 2d at 265-67. The
       legislature amended the statute with the “may infer” language.
¶ 28       The trial court’s statement accurately interprets the “may infer” language. As Jordan
       noted, a permissive presumption exists where the statute “allows, but does not require, the fact
       finder to infer the existence of the ultimate or presumed fact upon proof of the predicate fact,
       without placing any burden on defendant.” Id. at 265. The “may infer” language of subsection
       (b) does just that, so the trial court accurately recognized a presumption existed (though the
       statute no longer uses the word presumption). The constitutional concerns expressed in Jordan
       do not arise here: the trial court was not required to presume Rudell’s guilt based on the baby
       being unattended in the car for a period of time and had the ability to infer guilt based on that
       predicate fact. The mandatory nature of the Jordan presumption—not the presumption
       itself—violated the constitution.

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¶ 29      Finally, Rudell takes issue with the trial court’s assignment of culpability to her, rather than
       Rothenbuehler—for Rudell’s trial strategy had been to blame Rothenbuehler for leaving the
       baby in the car. Though we might wonder why the police apparently did not investigate
       Rothenbuehler’s possible responsibility or why no child endangerment charges were filed
       against him, neither police tactics nor a prosecutor’s charging decision have any relevance
       whatsoever with the sufficiency of the evidence. The trial court rebuked both parents, but only
       Rudell was on trial.

¶ 30                              Denial of Midtrial Suppression Hearing
¶ 31        Rudell next challenges the admissibility of her statements to police, alleging that she was
       highly intoxicated when she gave those statements and had not been advised of her Miranda
       rights. But the procedural posture of the claim interferes with our review. Rudell acknowledges
       that her attorney did not move to suppress these statements before trial but instead first
       requested leave to file the motion during Officer Zia’s testimony on cross-examination.
¶ 32        Motions to suppress statements should be filed before trial, “unless opportunity therefor
       did not exist or the defendant was not aware of the grounds for the motion.” 725 ILCS
       5/114-11(g) (West 2014). The trial court has discretion whether to allow the motion to be filed,
       and we will not reverse that decision unless the trial court abused its discretion. People v.
       Prince, 362 Ill. App. 3d 762, 775 (2005).
¶ 33        Rudell alleges that her attorney was not aware of the grounds for the motion before trial
       because he did not realize that such a motion would be viable until Officer Zia testified,
       inconsistently with the police reports, that Rudell was not free to leave (and was in custody,
       requiring Miranda warnings) before she was asked any questions by police. (The police
       reports state that police placed her in custody after she made her statements.) We find this
       unconvincing. Surely the statements Rudell gave to police would be viewed as important, and
       those statements were contained in the police report. See People v. Washington, 182 Ill. App.
       3d 168, 173 (1989) (where defendant’s statement contained in police report was tendered
       before trial, defendant deemed properly notified of possible grounds for motion to suppress).
       Rudell’s attorney was apparently aware of the facts on which a motion could have been
       filed—as the trial court pointed out, the police reports do not indicate that Rudell was
       Mirandized, either before or after speaking to police. Counsel also had access to both Rudell
       and Rothenbuehler, who presumably could have informed him whether Rudell had been
       Mirandized.
¶ 34        Further, there was an even more obvious ground for a motion to suppress: that Rudell was
       too intoxicated to knowingly waive her right against self-incrimination, regardless of when (or
       if) she was advised of her rights. See, e.g., People v. Johnson, 285 Ill. App. 3d 802, 812 (1996)
       (defendant’s statement will be suppressed on grounds of intoxication if defendant was so
       grossly intoxicated as to be incapacitated). Both Rothenbuehler and Griffith testified relative to
       Rudell’s extreme intoxication, so much so that she could hardly walk. Her degree of
       inebriation even surprised Rothenbuehler. The police reports provide further confirmation
       with three separate references to Rudell’s intoxication that night.
¶ 35        Given these facts, we cannot say the trial court abused its discretion in denying Rudell’s
       counsel an opportunity for a suppression hearing after trial had begun because defense counsel
       was aware of the potential grounds before trial. As the record was not developed in the trial
       court, we cannot review whether Rudell’s statements should have been suppressed. Further,

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       because the trial court did not err, this issue does not meet even the first prong of the “plain
       error” standard. See People v. Thompson, 238 Ill. 2d 598, 613 (2010) (to meet plain error
       standard, defendant must show a clear or obvious error).

¶ 36                                  Denial of Motion for New Trial
¶ 37       Next, Rudell argues that the trial court should have granted her motion for a new trial based
       on newly discovered evidence. The evidence was a video of Rudell, Rothenbuehler, and
       Griffith at Griffith’s home before Rudell and Rothenbuehler left with the baby. There were
       also affidavits from two witnesses stating that Rothenbuehler had been with Rudell and the
       baby at a barbecue earlier in the day. Rudell alleges that this new evidence would have
       supported Griffith’s testimony that Rothenbuehler was at Griffith’s home that evening and
       undercut any evidence that Rothenbuehler was at home all evening and not out with Rudell.
¶ 38       We review the denial of a motion for a new trial based on newly discovered evidence under
       an abuse of discretion standard. People v. Gabriel, 398 Ill. App. 3d 332, 350 (2010). New
       evidence warrants a new trial only when it (1) has been discovered since the trial, (2) could not
       have been discovered before trial with due diligence, (3) is material and not cumulative, and
       (4) is sufficiently conclusive that it would probably change the result on retrial. Id.
¶ 39       The trial court did not abuse its discretion. Rudell did not show that the video and affidavits
       could not have been obtained before trial through exercise of due diligence. Further, it is
       cumulative to evidence already presented: Griffith testified that Rothenbuehler and Rudell
       were together at his house, and Rothenbuehler testified that he had been at the barbecue with
       Rudell earlier. And it is certainly not conclusive. The question of where Rothenbuehler had
       been that night ultimately had no effect on the verdict, which was based on the trial court’s
       conclusion that an intoxicated Rudell had neglected to take the baby out of the car, whether or
       not she was with Rothenbuehler.
¶ 40       Finding no error, we reject Rudell’s claim of cumulative error.

¶ 41      Affirmed.




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