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                               Appellate Court                            Date: 2019.09.18
                                                                          13:14:56 -05'00'



                  People v. Castino, 2019 IL App (2d) 170298



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            MATTHEW R. CASTINO, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-17-0298



Filed              June 14, 2019



Decision Under     Appeal from the Circuit Court of Du Page County, No. 15-DT-2239;
Review             the Hon. Paul A. Marchese, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Thomas A. Lilien, Yasemin Eken, and Bryan G.
Appeal             Lesser, of State Appellate Defender’s Office, of Elgin, for appellant.

                   Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
                   and Jaime A. Evans, Assistant State’s Attorneys, of counsel), for the
                   People.



Panel              JUSTICE SCHOSTOK delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Birkett and Justice Hutchinson concurred in the
                   judgment and opinion.
                                              OPINION

¶1       Defendant, Matthew R. Castino, appeals his conviction of driving under the influence
     (DUI) for driving with heroin in his breath, blood, or urine (625 ILCS 5/11-501(a)(6) (West
     2014)). He contends that the evidence was insufficient to prove him guilty beyond a reasonable
     doubt when the arresting officer was not certified as a drug recognition expert (DRE), the court
     previously dismissed a count alleging impairment, and a video contradicted the officer’s
     testimony. We affirm.

¶2                                        I. BACKGROUND
¶3        Defendant was arrested on August 21, 2015, and charged with multiple counts, including
     the DUI charge at issue on appeal. In January 2017, a bench trial was held.
¶4        Evidence at trial showed that, on August 21, 2015, Hanover Park police officer Tim Allen
     and Detective Dan Cortese were patrolling in an unmarked car when Allen observed a woman
     exit a car at a gas station and throw out a metal object. The woman returned to the car, and it
     pulled out of the gas station. The car had expired plates, was driving approximately 10 miles
     per hour in a 40-mile-per-hour zone, and drifted between lanes. Based on those observations,
     the officers stopped the car.
¶5        Allen approached the car and spoke to defendant, who was sitting in the driver’s seat.
     According to Allen, defendant’s eyes were very red and his pupils very constricted. Defendant
     had fresh and old track marks on his arms and noticeable swelling in his arms and hands.
     Defendant’s nose was bleeding, there was a white powdery substance in his right nostril, and
     his shirt appeared to have a dry blood-like stain on the front.
¶6        Allen testified about his experience and specialized training that focused on gangs and
     drugs in the community. He had taken several drug classes, including one that covered heroin.
     Allen also took a drugged-driver certification class that covered heroin and the cues that a
     person exhibits when under the influence of a narcotic. However, Allen was not qualified as a
     DRE. Throughout his personal and professional life, Allen had observed individuals under the
     influence of narcotics over 100 times and had been involved with stops involving heroin
     approximately 15 times. He had also investigated individuals who had recently used drugs that
     left fresh track marks on their arms. Based on his training and experience, Allen opined that
     defendant’s track marks were both fresh and old and that defendant’s swollen hands and arms
     and constricted pupils indicated narcotics use. Allen testified that, based on his training and
     experience, heroin can be white and can be snorted, causing the nose to bleed.
¶7        During the stop, Allen noticed a hypodermic needle in the pocket of the driver’s-side door
     of the car. Defendant admitted that the needle was his. Allen testified that, based on his training
     and experience, such needles are commonly used to ingest narcotics and could create track
     marks. According to Allen, defendant also said that he was a heroin addict and had last used
     heroin a week ago. When Allen asked defendant about the appearance of defendant’s eyes and
     nose, defendant responded that he thought that it was from the day before or a few hours ago.
     When Allen asked about the appearance of defendant’s arms, defendant admitted that he had
     used a few hours ago, in the morning. Allen then shined his flashlight into defendant’s eyes
     and noticed that defendant’s pupils did not constrict. There was no video of Allen’s interactions
     with defendant while defendant was sitting in the car.


                                                  -2-
¶8         Allen next searched defendant outside of the car and found in defendant’s pockets a blue
       rubber band, a paper towel with a blood-like substance on it, a folded piece of paper, and a
       cotton swab. Allen testified that, based on his training and experience, the recovered items
       were consistent with a drug kit. A search of the car revealed numerous hypodermic needles
       scattered throughout. A search of the woman in the passenger seat revealed small plastic bags
       of a white powdery substance that field-tested positive for heroin. Allen could not recall the
       specific color that the test would show, but he testified that it changed color to show that the
       substance was heroin.
¶9         Allen next administered field sobriety tests to defendant, which were video recorded. The
       video shows that, before administering the tests, Allen checked that the device was recording
       and then asked defendant to tell him again when he last used heroin, stating that defendant had
       just said that it was a week ago and now did not know when it was. Allen told defendant that,
       looking at his eyes and arms, he knew that defendant had shot up within the last couple of
       hours. Defendant denied using heroin, stating that he was not on any drugs, had not had any
       heroin, and had not admitted to doing any drugs.
¶ 10       Allen administered the horizontal gaze nystagmus test, the lack-of-convergence test, the
       vertical gaze nystagmus test, the walk-and-turn test, the one-leg-stand test, and the Romberg
       test. During the tests, defendant’s eyes were still red, his pupils still very small, and they did
       not track back and forth smoothly. Defendant displayed a lack of convergence in one of his
       eyes and was not able to look directly upward to Allen’s finger. During the walk-and-turn test,
       defendant stepped off the line, raised his arms, and did not touch heel to toe. During the one-
       leg-stand test, defendant swayed, raised his arms, and miscounted. During the Romberg test,
       Allen observed eyelid trembling, defendant swayed back and forth, and he overestimated a 30-
       second interval by 3 seconds.
¶ 11       Allen opined that defendant was under the influence of heroin. Defense counsel objected
       on the basis that Allen was not qualified as a DRE. The trial court initially overruled the
       objection, stating that, while Allen’s training was not as extensive as that of a DRE, he could
       testify to his opinion. However, the trial court later reversed itself before issuing its finding of
       guilt, stating:
                “I want to stop at this point before I forget and indicate that I ruled that the officer could
                offer his opinion as to the impairment as to Heroin in this case. For the purposes of the
                record, I am versing [sic] myself on that. As I looked through more case law during the
                break and between witnesses, I don’t think that’s the correct ruling. So his opinion as
                to whether or not the defendant was under the influence of Heroin—just the opinion
                question, which is what was objected to—because he’s not a DRE, because he hasn’t
                had that extra training, I am going to strike it. He did testify as to other things that there
                was foundation to in his testimony, but specifically as to the opinion, which is what
                was objected to, that objection is sustained. The answer as to the officer’s opinion that
                he was under the influence of Heroin is going to be stricken, and I’m not going to
                consider it in my ruling.”
¶ 12       Defendant was taken to the police station, where he refused to provide blood and urine
       samples. Officer Mark Atkinson searched the garbage can at the gas station and found an iced-
       tea can that was torn in half. Inside was a syringe, a small plastic bag, and a Ziploc plastic bag
       in a paper towel. Based on his training and experience, Atkinson opined that the items were


                                                      -3-
       used to cook heroin before it was ingested. Atkinson also found a hypodermic needle, which
       would be commonly used to ingest heroin.
¶ 13       Cortese testified and corroborated Allen’s testimony. During the stop, Cortese noticed that
       defendant’s hands were puffy and his arms were very swollen with track marks everywhere.
       Based on his training and experience, Cortese believed that some of the track marks were fresh.
       Cortese was present when the bags containing a white powdery substance were recovered from
       the woman in the car. Like Allen, Cortese had attended specialty training, and he had been
       involved in 20 or 30 heroin-related stops in his professional life. Like Allen, Cortese could not
       recall the specific color the field test would show, but he testified that it showed that the
       substance taken from the woman was heroin.
¶ 14       After the close of the State’s case, the court granted defendant’s motion to dismiss a DUI
       charge based on impairment, finding that the State had not shown that defendant was impaired
       to a degree that rendered him incapable of driving safely. See id. § 11-501(a)(4). Defendant
       did not present any evidence, and the court found him guilty of the remaining charges. The
       court discussed the evidence, noting that defendant did not do poorly on some tests, including
       the Romberg test. However, the court further noted that the issue was use instead of
       impairment. The court noted the observations of powder and blood in defendant’s nose, track
       marks on his arms, and swollen hands. The court also noted defendant’s admission that he used
       heroin several hours earlier and the presence of drug paraphernalia. Ultimately, the court held
       that there was “a lot” of circumstantial evidence to prove defendant guilty beyond a reasonable
       doubt.
¶ 15       Defendant moved for a new trial, arguing that the evidence was insufficient because Allen
       was improperly allowed to testify about his opinions when he was not qualified as a DRE. He
       also argued that, in order to convict him based on circumstantial evidence, the State had to
       prove impairment, and the court specifically found that there was no impairment when it
       dismissed the other DUI count. The court denied the motion, stating that, while defendant’s
       performance on the field tests was not terrible, there was some evidence of impairment. The
       court sentenced defendant to 12 months’ supervision, and he appeals.

¶ 16                                           II. ANALYSIS
¶ 17       Defendant contends that the State failed to prove him guilty beyond a reasonable doubt
       when the State provided no expert testimony, it failed to prove substantial impairment, and
       Allen’s testimony was contradicted by the video.
¶ 18       To sustain defendant’s conviction of DUI, the State was required to prove that defendant
       was driving a vehicle with any amount of heroin in his breath, blood, or urine resulting from
       the unlawful use or consumption of it. Id. § 11-501(a)(6). On a challenge to the sufficiency of
       the evidence, we must determine whether, after viewing the evidence in the light most
       favorable to the State, any rational trier of fact could have found the essential elements of the
       offense proven beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48. The
       reviewing court will not retry the defendant or substitute its judgment for that of the trier of
       fact on issues pertaining to conflicts in testimony, the credibility of witnesses, or the weight of
       the evidence. Id. Additionally, the trier of fact is not required to disregard inferences that flow
       normally from the evidence or to seek out all possible explanations consistent with innocence
       and raise them to a level of reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 281 (2009).


                                                    -4-
¶ 19       Expert testimony is not required in every DUI drug case. People v. Gocmen, 2018 IL
       122388, ¶¶ 34, 37-38. Circumstantial evidence may be used to prove the presence of a
       substance in a defendant’s breath, blood, or urine. People v. Kathan, 2014 IL App (2d) 121335,
       ¶ 20. Circumstantial evidence is proof of facts and circumstances from which the trier of fact
       may infer other connected facts that reasonably and usually follow according to common
       experience. People v. McPeak, 399 Ill. App. 3d 799, 801 (2010). Likewise, a conviction of
       DUI may be supported solely by the credible testimony of the arresting officer. People v. Janik,
       127 Ill. 2d 390, 402 (1989). Opinion testimony of the arresting officer is not necessary,
       however. People v. Bitterman, 142 Ill. App. 3d 1062, 1065 (1986). Moreover, a defendant’s
       admissions can provide direct evidence to sustain a conviction. People v. Ciborowski, 2016 IL
       App (1st) 143352, ¶ 110. Although the State was not required to prove that a drug in
       defendant’s system impaired his ability to drive, impaired driving was relevant circumstantial
       evidence. Kathan, 2014 IL App (2d) 121335, ¶ 20.
¶ 20       The case law illustrates how circumstantial evidence may be sufficient to prove that a
       defendant had a drug in his breath, blood, or urine, even without the results of field sobriety
       tests. For example, in People v. Briseno, 343 Ill. App. 3d 953, 962 (2003), an officer’s
       observations that the defendant had slurred speech, dilated pupils, and slower-than-average
       motor skills were sufficient proof when coupled with the odor of cannabis on the defendant’s
       breath and the defendant’s admission that he had smoked cannabis. Thus, even if the trial court
       had improperly relied on field sobriety tests, the remaining evidence was sufficient to convict
       the defendant. Id.
¶ 21       In Kathan, we added that impairment was relevant circumstantial evidence that a drug
       existed in the defendant’s breath, blood, or urine without expert testimony to that fact. There,
       we concluded that the evidence was sufficient when the defendant admitted to taking two
       Xanax pills, one recently before driving, and showed signs of impairment, including failure of
       field sobriety tests. Kathan, 2014 IL App (2d) 121335, ¶ 21. In comparison, in McPeak, we
       found the evidence insufficient when the defendant admitted to smoking cannabis before he
       was stopped but did not show any signs of impairment and the only other evidence provided
       was that an officer smelled burnt cannabis “about [defendant’s] person.” McPeak, 399 Ill. App.
       3d at 802; see also People v. Allen, 375 Ill. App. 3d 810, 812, 816 (2007) (defendant’s
       admission to smoking cannabis the night before was insufficient when defendant did not
       exhibit signs of impairment and no paraphernalia or drug residue was found in his vehicle);
       People v. Workman, 312 Ill. App. 3d 305, 311 (2000) (when there is no competent evidence
       by a qualified expert and the defendant has not admitted to taking the drug and being under the
       influence, the lack of competent testimony may create reasonable doubt absent other
       sufficiently incriminating evidence).
¶ 22       Here, there was ample circumstantial evidence that defendant drove with heroin in his
       breath, blood, or urine. Defendant exhibited signs of recent drug use in that he had fresh track
       marks on his arms and swollen arms and hands. His eyes were red and his pupils were
       constricted. Indeed, he showed signs of having used drugs immediately before the stop in that
       he had white powder and blood in his nose. That inference was further supported by the
       evidence that the passenger threw out drug paraphernalia and had drugs on her person. A
       hypodermic needle was found in the pocket of the driver’s-side door, and defendant had drug
       paraphernalia on his person. Defendant admitted that he used heroin, including that he had
       done so earlier that morning. Defendant also exhibited signs of impairment when he drove


                                                  -5-
       abnormally slow and drifted between lanes. Allen also observed that defendant had difficulties
       during some of the field sobriety tests, such as by stepping off of the line and raising his arms
       during the walk-and-turn test and swaying, raising his arms, and miscounting during the one-
       leg-stand test. Thus, this case is not like McPeak or Allen, where there was a lack of
       circumstantial evidence to prove the presence of a drug in the defendant’s breath, blood, or
       urine when he was driving.
¶ 23       Defendant argues that proof of substantial impairment is required in order to convict based
       on circumstantial evidence and that the trial court specifically found that he was not impaired.
       While the trial court dismissed a count after finding that the State had not shown that defendant
       was impaired to a degree that rendered him incapable of safely driving, there nevertheless were
       signs of impairment. As previously noted, defendant drove abnormally slow and drifted
       between the lanes. He swayed, raised his arms, and stepped off of the line during field sobriety
       tests. The case law does not dictate that only a specific level of impairment may be considered
       as evidence of the presence of a drug. Rather, impairment is simply a relevant factor in the
       overall determination. See Kathan, 2014 IL App (2d) 121335, ¶ 20. It is up to the finder of fact
       to determine how to weigh it when reaching a determination of guilt.
¶ 24       Defendant also argues that the trial court wrongly considered his performance on certain
       field sobriety tests, in particular the Romberg test and the lack-of-convergence test, when Allen
       was not certified as a DRE. However, the trial court specifically stated that it was not
       considering Allen’s opinion based on those tests. Further, as in Briseno, the record shows
       sufficient evidence without consideration of the tests. Other opinions given by the officers were
       based on their experience instead of scientific, technical, or specialized knowledge that
       requires qualification as an expert. See generally Gocmen, 2018 IL 122388, ¶ 37.
¶ 25       Finally, defendant argues that the evidence was insufficient because the video contradicted
       Allen’s testimony that defendant admitted to using heroin on the morning of the arrest.
       Certainly, if the video truly contradicted crucial portions of the State’s case, there very well
       might be an issue regarding the sufficiency of the evidence. See, e.g., People v. Kotlinski, 2011
       IL App (2d) 101251, ¶ 41 (video contradicted the key testimony of the State’s key witnesses).
       But here, the video did not do so. Allen testified to statements that defendant made before the
       video was taken, while defendant was sitting in his car. The video was taken after defendant
       was outside of the car. Thus, the video did not contradict Allen’s testimony to what defendant
       said in the car. Although defendant himself, on the video, contradicted Allen’s testimony, this
       presented only a conflict in the evidence for the fact finder to resolve. See Janik, 127 Ill. 2d at
       402-03. The court was entitled to resolve it against defendant and find him guilty beyond a
       reasonable doubt.

¶ 26                                        III. CONCLUSION
¶ 27       For the reasons stated, the evidence was sufficient to prove defendant guilty of DUI beyond
       a reasonable doubt. Accordingly, the judgment of the circuit court of Du Page County is
       affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50
       as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill.
       2d 166, 178 (1978).

¶ 28      Affirmed.


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