                                          2017 IL App (3d) 140961

                                  Opinion filed January 5, 2018
       _____________________________________________________________________________

                                                   IN THE

                                     APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2018

       THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
       ILLINOIS,                                       )       of the 13th Judicial Circuit,
                                                       )       LaSalle County, Illinois,
              Plaintiff-Appellee,                      )
                                                       )       Appeal No. 3-14-0961
              v. 	                                     )       Circuit No. 13-CF-372

                                                       )

       BRANDON MUMAUGH,                                )       Honorable

                                                       )       H. Chris Ryan,
              Defendant-Appellant.                     )       Judge, Presiding.
       _____________________________________________________________________________

             JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
             Justices McDade and O'Brien concurred in the judgment and opinion.
       _____________________________________________________________________________

                                                 OPINION

¶1            After a stipulated bench trial, the defendant, Brandon Mumaugh (Mumaugh), was

       convicted of aggravated driving under the influence of a drug (aggravated DUI) in violation of

       sections 11-501(a)(6) and 11-501(d)(1)(C) of the Illinois Vehicle Code (Code) (625 ILCS 5/11­

       501(a)(6), (d)(1)(C) (West 2012)) and sentenced to two years’ imprisonment. The defendant

       appeals his conviction.

¶ 2	                                               FACTS
¶3          The trial court conducted a bench trial on October 17, 2014. The parties presented all

     evidence by stipulation. The following facts are taken from the parties’ stipulated evidence.

¶4          Mumaugh was 43 years old at the time of trial. He lived in Marseilles, and had been a

     professional truck driver for 27 years. On June 21, 2012, at approximately 10:30 p.m.,

     Mumaugh left work in Ottawa and began driving his GMC Blazer east on I-80 toward

     Marseilles. He exited the Interstate at the Marseilles exit and proceeded south on Highway 15

     toward the Marseilles city limits. It was a very dark night with no moonlight.

¶5          At the same time Mumaugh was driving home that night, 12-year-old Jennifer Dennis

     (Jennifer) and her friend, 13-year-old Courtney Brown (Courtney), were walking on the east side

     of Highway 15, at the edge of the northbound lane. Jennifer and Courtney had sneaked out of

     Courtney’s house to go the Dollar Store for soda. Finding the store closed, they continued north

     on Highway 15 in Marseilles toward a gas station, which was also closed. The girls then walked

     south along Highway 15 on their way back to Courtney’s house.

¶6          At 10:34 p.m., Maggie Thomas, a 911 dispatcher, received a call from Milan

     Najdanovich. Najdanovich told Thomas, “I’m on my way into town, and you got two little girls,

     they’ve got to be 12 or 14 years old, walking on Marseilles blacktop walking in between Hicks

     Gas and the Shell station.” Najdanovich said that “they’ve got no reflectors on, no nuttin’

     Honey, they’re goin’ to get hit.” He added, “[t]hey’re wearing dark clothes. I’m really afraid

     somebody’s gonna hit ‘em or something.’” Within 58 seconds of Najdanovich’s 911 call, a

     squad car was dispatched to the scene.

¶7          As Courtney and Jennifer walked, Courtney’s flip flop broke, and she bent down to fix it.

     Mumaugh was driving south on highway 15 at 50 miles per hour when he saw the white legs of a




                                                     2

       young girl (Courtney), in the northbound lane. Courtney was about 75 feet away. 1 Within a split

       second, another young girl, Jennifer, appeared out of nowhere in the southbound lane,

       immediately in front of Mumaugh’s vehicle. Jennifer was wearing black clothes and had her

       back to Mumaugh. Mumaugh immediately swerved his vehicle to the right to avoid striking

       Jennifer, but Jennifer was right in front of his vehicle. The left side of his vehicle struck

       Jennifer. Courtney heard a crash as she was bending over. Mumaugh’s vehicle veered off into a

       ditch on the west side of the highway. Mumaugh immediately exited his vehicle to give aid to

       Jennifer. 2 He encountered Courtney, who said to him, “I kept telling her to get out of the road. I

       kept telling her she shouldn’t walk on the road.” Mumaugh and Courtney found Jennifer lying

       face down on the east side of the highway. Her breathing was very labored. Courtney called

       911. The 911 dispatcher received the call about eight minutes after the Marseilles squad car was

       dispatched.

¶8               Highway 15 is a paved, two-lane road. At the time of the accident, the posted speed limit

       was 55 m.p.h. At the location of the accident, there were no lights illuminating the highway.

       The area is rural, and the highway is surrounded by open fields and bordered by gravel

       shoulders.

¶ 9	             At the time of the accident, Mark Judd was driving north on Highway 15 north of

       Marseilles when a Marseilles police squad car passed him with its emergency lights activated.

       The squad car stopped approximately one mile ahead. The officer exited his vehicle and directed

       Judd to stop. Judd pulled over and exited his vehicle. The officer, Brian Faber, saw Mumaugh

       standing over Jennifer, with Courtney standing nearby. Mumaugh told Officer Faber that

                 1
                     The parties stipulated that a vehicle traveling 50 miles per hour will travel 73.34 feet in one
       second.
                 2
                     Mumaugh had been an emergency medical technician (EMT) for approximately 10 years in the
       1990s.
                                                                 3

       Jennifer was walking down the middle of the road, that Mumaugh did not see her, and that he hit

       her with his car. Judd, a former EMT, walked to where Jennifer was lying to see if there was

       anything he could do to help her. Judd asked Officer Faber to help him assist Jennifer. Officer

       Faber did not respond. Judd asked Mumaugh to help him turn Jennifer over to make sure she

       was breathing. Mumaugh assisted Judd.

¶ 10          Detective Todd Gordon and Officers Ronald Baudino and Thomas Rogel of the

       Marseilles Police department subsequently arrived on the scene. A Marseilles ambulance also

       arrived, rendered aid, and took Jennifer to an area where she could be airlifted to a hospital.

       Judd then spoke to Courtney, who was sitting in Judd’s vehicle. Judd asked her what happened.

       Courtney told Judd that Jennifer was walking in the middle of the road, kicking a rock. Courtney

       also told others at the scene that Jennifer was walking in the middle of the road and provided a

       written statement to that effect.

¶ 11          Officer Baudino asked Mumaugh if he had been drinking. Mumaugh responded that he

       had not and offered to take field sobriety tests. After administering field sobriety tests, Officer

       Baudino told Mumaugh that he was “good” and that he saw no signs of impairment. Mumaugh

       agreed to be taken by ambulance to OSF Hospital to give blood and urine samples.

¶ 12          Detective Gordon and Officers Faber and Baudino did not detect any odor of cannabis on

       Mumaugh’s breath or clothing. At no time did they observe anything that would lead them to

       believe that Mumaugh was under the influence of drugs. Mumaugh did not show any signs of

       impairment in his actions or senses. Mumaugh told the officers that he had “smoked weed” five

       days earlier (on June 16, 2012), but had not smoked any marijuana on the day of the accident.

¶ 13          While at the accident scene, Mumaugh realized that he had a “hitter” pipe in his vehicle

       and he knew that the police would probably search the vehicle. To avoid being arrested for


                                                         4

       possession of the pipe, Mumaugh removed the pipe from the vehicle and discarded it on the side

       of the road. Mumaugh claimed he did not use the pipe to smoke cannabis at any time that day.

       He did not have any cannabis on his person or in his vehicle. Officer Rogel saw the hitter pipe (a

       type of pipe commonly used to smoke cannabis) on the ground next to the ambulance that took

       Mumaugh to the hospital. The pipe was not warm to the touch, and there was nothing Officer

       Rogel observed that would lead him to believe that the pipe had been used recently. Officer

       Rogel secured the pipe as evidence. Marseilles police officers thoroughly searched Mumaugh’s

       vehicle. They found no items of contraband or illegal substances.

¶ 14          Mumaugh told Officer Baudino and Detective Gordon that he was driving south on

       Highway 15 at about 50 m.p.h. when he saw white legs walking on the side of the road. He then

       noticed a person in his lane. He swerved to the right and went into the ditch to avoid hitting the

       person, but he struck her with his car.

¶ 15          Adam Diss, a certified accident reconstructionist for the LaSalle County State’s

       Attorney’s Office, was dispatched to the accident scene. Based on his observations, Diss

       concluded that the crash occurred around the center line of Highway 15. Mumaugh’s vehicle

       was traveling south on Highway 15 at approximately 50 miles per hour. Jennifer was walking

       south on the same road near the center line when she was struck from behind by Mumaugh’s

       vehicle. There was damage to the left front fender and the left upper edge of the windshield of

       Mumaugh’s vehicle. The headlights were working properly. There was a large amount of

       change (which Jennifer had had on her person at the time of impact) scattered across the

       northbound lane and some into the southbound lane of Highway 15.

¶ 16          On October 10, 2012, Detective Gordon interviewed Mumaugh and asked him about the

       hitter pipe that was found on the side of the road at the accident scene. Mumaugh denied that it


                                                        5

       was his pipe. Detective Gordon collected a buccal swab from Mumaugh that day. A swab of the

       mouth area of the hitter pipe contained a mixture of DNA profiles from at least two people. A

       major DNA profile that was identified matched Mumaugh’s DNA profile. Additional forensic

       testing detected .2 grams of cannabis collected from the hitter pipe. A chemical analysis

       performed at the Illinois State Police Joliet Forensic Science Laboratory detected an

       undetermined quantity of THC metabolite in Mumaugh’s urine.

¶ 17          Jennifer sustained serious injuries as a result of the accident, including an injury to her

       brain. She was in a coma for several months and suffered permanent disabilities.

¶ 18          During the trial, the prosecutor argued that all he needed to prove was that Mumaugh was

       driving with cannabis in his system and that an accident occurred during which someone suffered

       great bodily harm. The prosecutor maintained that the time of day, the speed of Mumaugh’s

       vehicle, and the fact that Jennifer was walking in the middle of the road were irrelevant. Defense

       counsel argued, inter alia, that Mumaugh’s driving with THC in his system was not the

       proximate cause of Jennifer’s injury. The prosecutor responded that Mumaugh’s driving was a

       proximate cause of the accident because: (1) had Mumaugh not been driving, there would have

       been no accident; and (2) it was “somewhat foreseeable” that the defendant could be involved in

       a motor vehicle accident while driving because accidents “occur all the time.”

¶ 19          The trial court found Mumaugh guilty of aggravated DUI. The court noted that the

       evidence was to a large degree undisputed. The court found that Mumaugh was operating a

       motor vehicle on the highway at a time when cannabis was in his system and that an accident

       occurred between Mumaugh’s vehicle and a pedestrian that caused great bodily harm.

       Addressing the issue of proximate causation, the court stated that, in People v. Martin, 2011 IL

       109102, the Illinois Supreme Court “seem[ed] to say it doesn’t matter” and “seemed to not


                                                        6

       concern itself too much with that.” The trial court opined that “impairment doesn’t seem to be

       part of the offense here and intent doesn’t seem to be part. [sic]”

¶ 20          Mumaugh filed a motion to reconsider and for judgment notwithstanding the verdict. He

       argued, inter alia, that the court’s reliance on Martin was misplaced and that the State had failed

       to prove proximate causation.

¶ 21          The trial court denied Mumaugh’s posttrial motions and sentenced him to two years’

       imprisonment and one year of mandatory supervised release. The court stayed the sentence until

       the conclusion of appellate proceedings. Mumaugh filed his notice of appeal that same day. The

       next day, the trial court amended the judgment order to provide that Mumaugh’s sentence would

       be served at 85 percent.

¶ 22          This appeal followed.

¶ 23                                               ANALYSIS

¶ 24          On appeal, Mumaugh argues that his conviction should be reversed for two reasons.

       First, Mumaugh contends that the 2012 version of the aggravated DUI statute under which he

       was convicted, a strict liability statute which allows for conviction upon proof of any amount of

       marijuana in the defendant’s blood without proof of impairment, violates substantive due process

       and is unconstitutional because it needlessly criminalizes innocent conduct, and is therefore not

       rationally related to the statute’s purpose of keeping drug-impaired drivers off the road; and, (2)

       the State failed to present evidence sufficient to prove that the defendant’s driving was the

       proximate cause of the victim’s injuries, a required element of the offense of aggravated DUI

       (see 625 ILCS 5/11-501(d)(1)(C) (West 2012)). An appellate court “must avoid the adjudication

       of constitutional questions when a case can be decided on other grounds.” Marconi v. City of

       Joliet, 2013 IL App (3d) 110865, ¶ 16; see also People v. White, 2011 IL 109689, ¶¶ 144-48;


                                                         7

       Innovative Modular Solutions v. Hazel Crest School District 152.5, 2012 IL 112052, ¶ 38;

       People v. Jackson, 2013 IL 113986, ¶ 14 (“courts will address constitutional issues only as a last

       resort, relying whenever possible on nonconstitutional grounds to decide cases”). Accordingly,

       we will address Mumaugh’s proximate causation argument first.

¶ 25           At the time of the accident at issue in this case, Section 11-501(a)(6) of the Code

       provided, in pertinent part, that “[a] person shall not drive *** any vehicle in this State while ***

       there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine

       resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act.”

       (Emphasis added.) 625 ILCS 5/11-501(a)(6) (West 2012). 3 Section 11-501(a)(6) is a strict

       liability provision. A person may be convicted of violating this provision (which is a

       misdemeanor offense) if he is found to have any concentration of THC in his blood or urine,

       regardless of whether the level of THC was sufficient to impair the defendant’s driving. Martin,

       2011 IL 109102; see also People v. Fate, 159 Ill. 2d 267, 260-71 (1994) (ruling that the statute

       “creates an absolute bar to driving after ingesting a controlled substance *** without regard to

       physical impairment”). In fact, our supreme court has held that the statute presumes impairment.

       Martin, 2011 IL 109102, ¶ 23 (“The legal fiction of presumed impairment that we adopted in the

       context of driving with a blood-alcohol content over 0.10 applies with equal force in the context

       of drug driving.”); see also Fate, 159 Ill. 2d at 270; People v. Ziltz, 98 Ill. 2d 38 (1983).



               3
                 Public Act 99-697, effective July 29, 2016, amended section 11-501(a)(6). The amended statute
       no longer criminalizes driving with any amount of a drug, substance, or compound in the person’s breath,
       blood, or urine resulting from the unlawful use or consumption of cannabis. It now criminalizes having a
       concentration of THC of 5 nanograms or more of delta-9-[THC] per millileter of whole blood or 10
       nanograms or more of delta-9-[THC] per millileter of other bodily substance within two hours of driving.
       See 625 ILCS 5/11-501(a)(6), 5/11-501.2(a) (West 2016). However, in this case, we shall apply and
       construe the prior version of the statute which was in effect at the time of the accident.



                                                          8

¶ 26           A person convicted of violating section 11-501(a)(6) is guilty of aggravated DUI if “the

       person in committing a violation of subsection (a) was involved in a motor vehicle accident that

       resulted in great bodily harm or permanent disability or disfigurement to another, when the

       violation was a proximate cause of the injuries.” 625 ILCS 5/11-501(d)(1)(C) (West 2012)); see

       also Martin, 2011 IL 109102, ¶ 14 (“Section 11–501 sets forth the elements of a misdemeanor

       offense, then provides sentencing enhancements based upon the presence of other factors.”);

       People v. Quigley, 183 Ill.2d 1, 10 (1998) (“[A]ggravated DUI occurs when an individual

       commits some form of misdemeanor DUI, in violation of paragraph (a), and other circumstances

       are present. The legislature added aggravating factors that change[ ] the misdemeanor DUI to a

       Class 4 felony.”); see also People v. Way, 2017 IL 120023, ¶ 21. 4

¶ 27           To obtain a conviction for aggravated DUI, the State is not required to prove that the

       marijuana or other drug in the defendant’s system (or any impairment caused by such drug) was

       the proximate cause of the victim’s injuries; rather, it must merely prove beyond a reasonable

       doubt that the defendant’s driving was a proximate cause of his or her injuries. Martin, 2011 IL

       109102, ¶¶ 20-28; see also id. ¶ 25 (ruling that, when an aggravated DUI charge is based on a

       violation of a strict liability DUI provision that does not require proof of impairment, the

       aggravated DUI provision “requires a causal link only between the physical act of driving and”

       another person’s injury or death). However, proximate cause must be proven by the State in

       such cases; it is not simply presumed along with the presumption of impairment under section

       5/11-501(a)(6). See Martin, 2011 IL 109102, ¶¶ 25, 28.



               4
                 Our supreme court has clarified that (1) “aggravated DUI is simply misdemeanor DUI with an
       aggravating factor, which turns the offense into a felony" (Martin, 2011 IL 109102, ¶ 24); and (2) “[t]he
       essential and underlying criminal act, however, remains the same: driving while under the influence. The
       physical injury caused to others by driving while under the influence produces the felony.” (id., quoting
       Quigley, 183 Ill. 2d at 10). See also Way, 2017 IL 120023, ¶ 21.
                                                           9

¶ 28          Proximate causation consists of two elements: cause in fact and legal cause. People v.

       Hudson, 222 Ill. 2d 392, 401 (2006); First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252,

       257-58 (1999). Cause in fact exists when a defendant's conduct is a material element and a

       substantial factor in bringing about the injury. Galman, 188 Ill. 2d at 258; Lee v. Chicago Transit

       Authority, 152 Ill. 2d 432, 455 (1992). A defendant's conduct is a material element and a

       substantial factor in bringing about an injury if, absent that conduct, the injury would not have

       occurred. Galman, 188 Ill. 2d at 258; Lee, 152 Ill. 2d at 455. “Legal cause,” by contrast, is

       essentially a question of foreseeability. Galman, 188 Ill. 2d at 258; Lee, 152 Ill. 2d at 456. The

       relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely

       result of his or her conduct. Galman, 188 Ill. 2d at 258; Lee, 152 Ill. 2d at 456.

¶ 29          In proximate cause disputes, Illinois courts draw a distinction between a condition and a

       cause. Galman, 188 Ill. 2d at 257. “[I]f the negligence charged does nothing more than furnish a

       condition by which the injury is made possible, and that condition causes an injury by the

       subsequent, independent act of a third person, the creation of the condition is not the proximate

       cause of the injury.” Id. “The test that should be applied in all proximate cause cases is whether

       the first wrongdoer reasonably might have anticipated the intervening efficient cause as a natural

       and probable result of the first party's own negligence.” Id.

¶ 30          Applying these principles in Galman, our supreme court held that the defendant’s illegal

       parking of a tanker truck near an intersection was not the proximate cause of a pedestrian’s fatal

       injuries where, instead of crossing the street at the crosswalk (where the view of oncoming traffic

       was unobstructed), the pedestrian attempted to jaywalk across the street in the middle of the

       block, immediately in front of the parked tanker truck, where she could not have seen the

       oncoming traffic. Id. at 254-55, 259-62. The Court found that the parked tanker truck was a


                                                        10 

       cause in fact of the pedestrian’s injuries because, had the truck not been parked illegally at that

       location, the pedestrian’s injuries almost certainly would not have occurred, as her view of the

       roadway would have been unobstructed. However, the court found that the truck was not the

       legal cause of the pedestrian’s injuries, because the injury was not the type that a reasonable

       person would foresee as a likely result of his or her conduct. The court explained that the

       dispositive question was “whether it was reasonably foreseeable that violating a ‘no parking’

       sign at mid-block would likely result in a pedestrian’s ignoring a marked crosswalk at the corner,

       walking to mid-block, and attempting to cross a designated truck route blindly and in clear

       violation of the law.” Id. at 261. The court concluded, “[c]learly, it would not.” The court

       found that the pedestrian’s decision to jaywalk, “while undeniably tragic and regrettable, was

       entirely of her own making.” Id. The court emphasized that the driver of the tanker truck

       “neither caused [the pedestrian] to make that decision, nor reasonably could have anticipated that

       decision as a likely consequence of [his] conduct.” Id.

¶ 31          In Reuter v. Korb, 248 Ill. App. 3d 142 (1993), our appellate court reached a similar

       conclusion on facts markedly similar to those presented in this case. In Reuter, the defendant

       was driving south in a dark, rural area at approximately 11:25 p.m. when a pedestrian wearing

       dark clothing suddenly appeared in the center of the defendant’s lane. Less than one second

       later, the defendant’s vehicle struck the pedestrian. The defendant was traveling at the posted

       speed limit (45 miles per hour) at the time. Approximately five minutes before the accident, a

       motorist had reported to a police officer that he had to swerve to avoid hitting a pedestrian

       walking in the roadway in the same street. Toxicology reports administered after the accident

       indicated that the pedestrian had a blood alcohol level of .298. Our appellate court held that the

       evidence established that the proximate cause of the accident was the pedestrian’s own conduct


                                                        11 

       because the pedestrian had violated the law and “was not in an area where the [defendant] should

       have known or expected a pedestrian to be.”

¶ 32           Likewise, in this case, the State failed to prove beyond a reasonable doubt that

       Mumaugh’s driving was a proximate cause of Jennifer’s injuries. There was no evidence that

       Mumaugh committed any traffic violation or any negligent act at the time of the accident. He

       passed all field sobriety tests administered at the scene, and the officers who interacted with him

       did not smell cannabis on his breath or clothes and found no evidence of impairment. 5 He was

       driving five miles per hour below the posted speed limit at the time of the accident, and there is

       no evidence that he was distracted or that he veered outside of the southbound lane of traffic at

       any point (other than during his attempt to avoid striking Jennifer, who was walking near the

       middle of the road and, according to Mumaugh, suddenly appeared directly in front of him in the

       southbound lane). Mumaugh’s headlights were working properly, and there was no evidence

       that he could have avoided hitting Jennifer, who appeared immediately in front of his car a split

       second before he hit her. The parties stipulated that a car moving at 50 m.p.h. travels more than

       73 feet in one second. The State did not present evidence establishing that a non-impaired driver

       traveling at that speed could have avoided hitting a pedestrian suddenly appearing directly in

       front of his vehicle. In sum, there is no evidence that Mumaugh did anything as far as his

       driving was concerned that could have foreseeably caused the accident.

¶ 33           Moreover, like the pedestrians in Galman and Reuter, Jennifer performed an

       unforeseeable act that subjected her to extreme danger. Minutes before the accident, Milan

       Najdanovich drove past Courtney and Jennifer on the highway and called 911 to report that two
               5
                The State notes that Mumaugh was carrying a "hitter" pipe in his car at the time of the accident.
       However, the pipe was not warm at the time the police found it on the accident scene, the police found
       nothing to suggest that it had been used recently, and nothing in the defendant’s car or on his person
       suggesting that he had been smoking marijuana shortly before the accident. Plus, as noted above, there
       was no evidence that the defendant was impaired at the time.
                                                           12 

       little girls were walking on the blacktop road “wearing dark clothes” with no reflectors on.

       Najdanovich said “Honey, they’re goin’ to get hit *** I’m really afraid somebody’s gonna hit

       ‘em or something.” Immediately after the accident, Courtney told Mumaugh that Jennifer was

       walking “on the road,” and that she kept telling her to get off the road. When Judd asked

       Courtney what had happened, Courtney told him that Jennifer was “walking in the middle of the

       road, kicking a rock.” She also told others at the accident scene that Jennifer was walking in the

       middle of the road. Immediately after the accident, Mumaugh told Officer Faber that Jennifer

       was walking in the middle of the road when he struck her. Moreover, after investigating the

       accident scene, Diss, the prosecution’s certified accident reconstructionist, concluded that: (1)

       the crash occurred around the center line of Highway 15; (2) Mumaugh’s vehicle was traveling

       south on Highway 15 at approximately 50 m.p.h.; and (3) Jennifer was walking south on the

       same road near the center line when she was struck from behind by Mumaugh’s vehicle.

¶ 34          In a stipulated pretrial statement, Courtney stated that, if she were called to testify, she

       would testify that Jennifer was “near the fog line” at the time of the accident, “not in the road.”

       This statement cannot establish proximate cause, however, for several reasons. First, it flatly

       contradicts multiple statements that Courtney made to several witnesses immediately after the

       accident, when her memory of the events in question was presumably clearer and she had no

       motivation to lie. It also contradicts Courtney’s own prior written statement and all the other

       evidence, including the conclusion of the State’s accident reconstructionist and Mumaugh’s

       statements to police immediately after the accident. Indeed, Courtney’s stipulated pretrial

       statement represents the only evidence suggesting that Jennifer might not have been walking near

       the center of the road (or in the southbound traffic lane) at the time of the accident. However,

       Courtney’s stipulated pretrial statement is not definitive because she did not clearly state that


                                                        13 

       Jennifer was not within the traffic lane at the time of the accident. Instead, she stated that

       Jennifer was “near the fog line” and not “in the road.” She did not state that Jennifer was not “on

       the road.” Thus, Courtney’s pretrial statement could merely mean that, at the time of the

       accident, Jennifer was walking near the fog line within the roadway, which would still put her in

       danger of being hit by southbound traffic.

¶ 35          The State does not attempt to distinguish Galman or Reuter in its brief on appeal. Instead,

       the State relies upon several cases wherein our supreme court or our appellate court upheld

       convictions for aggravated DUI and found that the defendant’s driving was a proximate cause of

       the victim’s injuries or death. However, in each of these cases, there was evidence suggesting

       that the defendant driver did something illegal or improper that could have foreseeably caused

       the accident. 6 The State correctly notes that, in order to be guilty of aggravated DUI, the

       defendant need only be a proximate cause of the accident, not the sole proximate cause, and that

       unexpected hazards appearing in the roadway do not negate the defendant’s responsibility as a

       matter of law. However, in this case, there was no evidence suggesting that the defendant’s

       driving was even a contributing proximate cause of Jennifer’s injuries (other than, perhaps,

       Courtney’s pretrial statement which is problematic and inconclusive for the reasons stated

       above). All the other evidence suggests that Jennifer’s conduct was the sole proximate cause of

       her injuries.




               6
                 See Martin, 2011 IL 109102 (the defendant drove his vehicle across the center line); People v.
       Merrick, 2012 Il App (3d) 100551 (the defendant’s BAC was .212 and the defendant conceded the
       element of causation); People v. Swift, 2016 Ill App (3d) 140604 (the defendant had taken his eyes off the
       road at the time of the accident); People v. Cook, 2011 Il App (4th) 090875 (the defendant’s BAC was
       .109 to .119 at the time of the accident, which could have allowed the jury to infer that the defendant
       could have been more alert); People v. Ikerman, 2012 Il App (5th) 110299 (the defendant was drunk and
       speeding); People v. Merritt, 343 Ill. App. 3d 442 (2003) (the defendant was intoxicated and speeding);
       People v, Johnson, 393 Ill. App. 3d 127 (2009) (the defendant was impaired and was street racing).
                                                          14 

¶ 36          In sum, it is simply not foreseeable that a pedestrian would be walking in the middle of a

       dark, unlit, rural road at 10:30 p.m. on a moonless night wearing dark clothing and no reflectors.

       Nor would a reasonable person foresee that the accident in the case was the “likely result” of his

       conduct when he was driving normally (non-negligently), below the posted speed limit with

       functioning headlights, and within his proper lane of traffic. Contrary to the State’s argument,

       the fact that “accidents occur all the time” does not render this particular accident foreseeable.

       The dispositive question is whether the defendant reasonably might have anticipated the accident

       as a “natural and probable result of the [his] own negligence,” i.e., whether Jennifer’s injury was

       “of a type that a reasonable person would see as a likely result of his or her conduct.” Galman,

       188 Ill. 2d at 257, 258. That is clearly not the case here, because there is no evidence that

       Mumaugh's driving was improper in any way, and, at the time of the accident, Jennifer was not

       in an area where the defendant should have known or expected a pedestrian to be. See Reuter,

       248 Ill. App. 3d 142.

¶ 37          We will reverse a conviction on the basis of insufficient evidence only where, viewing

       the evidence and all reasonable inferences therefrom in the light most favorable to the State, the

       evidence is so insubstantial that no rational trier of fact could find each element of the charged

       offense beyond a reasonable doubt. People v. Smith, 185 Ill.2d 532, 541 (1999); People v.

       Collins, 106 Ill. 2d 237, 261 (1985); People v. Ford, 2015 IL App (3d) 13081043, ¶ 17. This is

       such a case. Proximate cause is an element of the offense of aggravated DUI. 625 ILCS 5/11­

       501(d)(1)(C) (West 2012)); Martin, 2011 IL 109102, ¶¶ 25, 28; People v. Swift, 2016 IL App

       (3d) 14060467, ¶ 30. Based on the stipulated evidence in this case, no rational trier of fact could

       find that element proven beyond a reasonable doubt. Thus, even applying the deferential Collins

       standard, the defendant’s conviction must be reversed.


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¶ 38          After oral arguments in this case, we granted Mumaugh leave to submit our supreme

       court's recent decision in Way as additional authority in support of his argument on appeal. The

       State contends that Way undermines the defendant's argument because it establishes that the

       defendant bears the burden of proving that the victim's conduct was the sole proximate cause of

       her injuries. In Way, our supreme court held (inter alia) that the trial court erred in finding that a

       defendant charged with aggravated DUI was barred, as a matter of law, from "raising as an

       affirmative defense" that the traffic accident at issue was caused "solely and exclusively by an

       unforeseen medical condition that rendered her incapable of controlling her vehicle." Way, 2017

       IL 120023, ¶ 31. However, Way is distinguishable from this case in one important respect. In

       Way, it was undisputed that the State had "sufficient evidence to show that [the defendant] was at

       fault" in the accident. Id. ¶ 29. (The defendant's car had "crossed the centerline" and "collided

       head-on" with the victim's vehicle. Id. (internal quotation marks omitted)). Thus, in Way, the

       State discharged its burden of proving that the defendant's driving was a proximate cause of the

       victim's injuries. In this case, by contrast, the State has not met its initial burden of proving that

       the defendant's driving was a proximate cause of the accident. In any event, even assuming

       arguendo that Mumaugh bore the burden of proving that Jennifer's conduct was the sole

       proximate cause of her injuries, Mumaugh has discharged that burden.

¶ 39          Because we reverse the defendant’s conviction on the issue of proximate causation, we

       do not address the defendant’s alternative constitutional argument. See, e.g., Marconi, 2013 IL

       App (3d) 110865989, ¶ 16 (ruling that an appellate court “must avoid the adjudication of

       constitutional questions when a case can be decided on other grounds”).

¶ 40                                              CONCLUSION




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¶ 41          For the foregoing reasons, the judgment of the circuit court of LaSalle County is

       reversed.

¶ 42          Reversed.




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