                             No. 3-05-0809
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Filed August 10, 2006.
                                IN THE

                           APPELLATE COURT OF ILLINOIS

                                 THIRD DISTRICT

                                    A.D., 2006

THE PEOPLE OF THE                      )    Appeal from the Circuit Court
STATE OF ILLINOIS,                     )    for the 10th Judicial Circuit,
                                       )    Peoria County, Illinois.
     Plaintiff-Appellee,               )
                                       )
     v.                                    ) No. 03-DT-553
                                           )
SHIRLEY KUCAVIK,                                       )        The Honorable
                                                                    )     Brian
                                             Nemenoff,
     Defendant-Appellant.                                            )
                                                       Judge
                                                  Presiding.
_________________________________________________________________
_____________

     JUSTICE McDADE delivered the opinion of the court:
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_____________
     The State charged defendant, Shirley Kucavik, with driving

under the influence of alcohol.            Defendant filed a notice of

intent to assert the defense of necessity.              At trial defendant

stipulated that she drove a vehicle while intoxicated.                   The State

read defendant=s stipulation to the jury and rested its case-in-

chief.    Defendant testified on her own behalf.              At the close of

all evidence the circuit court of Peoria County refused to

instruct the jury as to the defense of necessity.                 The jury found

defendant guilty and the court convicted defendant, sentenced her
to 12 months= conditional discharge, and assessed fines.   For the

reasons that follow, we reverse defendant=s conviction and remand

for a new trial consistent with this opinion.




                            BACKGROUND

     At trial, defendant testified that on the night in question

she went to a bar with her boyfriend, Steven Davis, and his

friend, Ryan McMahan.   Defendant did not observe McMahan drinking

and believed he would be acting as the designated driver and

would drive her home at the end of the evening.   The trio took

defendant=s car because McMahan=s car was not running well.

Defendant and Davis became intoxicated.   When the three left the

bar, McMahan drove defendant=s vehicle.   Rather than driving her

home, McMahan drove to his home.   McMahan and Davis exited the

car, leaving defendant in the backseat.   Later, Davis exited

McMahan=s home and got behind the wheel of defendant=s vehicle

while she sat in the backseat.   Defendant protested because she

felt Davis was too drunk to drive, but Davis drove off.

Defendant began arguing with Davis because she thought they were

both too intoxicated to drive.   Davis became angry, pulled into

the parking lot of Peoria Heights High School, and began

squealing the tires and doing Adoughnuts.@

     According to defendant, Davis then drove the vehicle out of

the parking lot and returned to the road as they continued to

argue.   He stopped the vehicle in the middle of the road, got

out, and went to the passenger side of the car.   Defendant also
exited the vehicle and told Davis he could not leave the car

there.    He then told defendant, AYou ignorant bitch.   It=s your

car, you drive it.    And if you don=t drive it I=m gonna hurt you.@

 Defendant testified she was afraid because Davis abused her in

the past, had a tendency to become mean and pushy, and was
carrying a switchblade knife.    Defendant got behind the wheel,

drove two blocks, and parked on Atlantic Street, a side street

just off the main road.    She then saw a police vehicle=s lights

behind her.    The police officer asked defendant if she had been

fighting with Davis in the parking lot of Peoria Heights High

School.    Defendant said she had not.   She testified that she said

this because she was afraid of what Davis might do to her.

     Defendant testified she drove the vehicle because it was in

the middle of the road and she was afraid someone would hit it

and get hurt.    She was also afraid of Davis and what he might do

if he got arrested.    Defendant drove two blocks and parked on

Atlantic because she Awas trying to find a place [she] thought

would be safe for [her] to pull into so [she] could walk home.@

Finally, defendant testified she moved the car only because she

Athought it was the best thing to do at the time.@    The defense

rested its case.

     The State moved to exclude defendant=s proposed instruction

on the defense of necessity.    The trial court granted the State=s

motion over defendant=s objection.     In closing argument, the

State told the jury that defendant had stipulated to committing

the offense of driving under the influence, that the defense of

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necessity was no longer an issue in the case, and, therefore, the

law required the jury to return a guilty verdict.

     During deliberations, the jury posed the following question:

 ANecessity Defense--is there a law that says it is acceptable to

drive car [sic] under the influence of alcohol to avoid a greater

injury under the DUI laws?              Please clarify this law.@                 Over

defendant=s objection, the court returned the following answer:

AThe question of necessity is no longer part of this case.                               The

decision of whether to find that the Defendant is guilty or not

must be based upon the instructions given to you and the evidence

which pertains to those instructions.@                    The jury returned a

guilty verdict shortly after receiving the court=s response.

This appeal followed.

                                         ANALYSIS

     Defendant signed off on the following stipulation:

            "The State and the Defense both stipulate, or agree, that the

            Defendant committed the offense of driving under the influence of

            alcohol on the date in question, September 23, 2003.

            A person commits the offense of driving under the influence of

            alcohol when they drive a vehicle under the influence of alcohol.

            A person is under the influence of alcohol when, as a result of

            drinking any amount of alcohol, his/her mental or physical

            faculties are so impaired as to reduce his ability to think and act

            with ordinary care."


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        The State read this stipulation to the jury and rested its case. It presented no further

evidence. Defendant was the sole witness in her case and her testimony concerning the facts

surrounding her driving of the car stands undisputed. According to her testimony, defendant had

a choice: she could leave the car standing in the middle of the public street or she could move it

out of the lane of traffic. Although to do the latter would constitute the crime of driving under

the influence of alcohol, a jury could find that a person reasonably would have felt compelled to

move the car. Therefore, defendant made a sufficient showing to require the submission of the

necessity instruction to the jury. Whether she was a hapless victim or a joint creator of the

necessity and whether the distance she drove exceeded the need are factual determinations to be

made by a properly instructed jury.

        "The giving of jury instructions is a matter within the sound discretion of the trial court." People v.

Jones, 219 Ill. 2d 1, 31, 845 N.E.2d 598, 614 (2006). However, "[i]t is a matter of

law whether the defendant has met the evidentiary minimum entitling [her] to instructions on an affirmative

defense." People v. Everette, 141 Ill. 2d 147, 157, 565 N.E.2d 1295, 1299

(1990). "[A] defendant is entitled to instructions on those defenses which the evidence supports. This is

so even in instances where the evidence is >slight.=" Everette, 141 Ill. 2d at 156, 565 N.E.2d at

1298. The issue for this court in determining whether the trial court was required by law to give the jury

instruction is whether defendant presented even slight evidence to support the defense of necessity.

                     "The elements of the affirmative defense of necessity are that: (1) the

                 person claiming the defense was without blame in occasioning or developing

                 the situation, and (2) the person reasonably believed that his conduct was

                 necessary to avoid a greater public or private injury than that which might

                 reasonably have resulted from his conduct. [citation.] This defense is

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                 viewed as involving the choice between two admitted evils where other

                 optional courses of action are unavailable [citation], and the conduct chosen

                 must promote some higher value than the value of literal compliance with the

                 law [citation]." People v. Janik, 127 Ill. 2d 390, 399, 537

                 N.E.2d 756, 760 (1989).

        First, defendant presented some evidence that she was without blame in occasioning the situation

that allegedly forced her to drive while intoxicated. When Davis and McMahan exited the vehicle and

entered McMahan=s house, she waited in the backseat. That fact supports a reasonable inference that she

expected McMahan to return to the vehicle and drive her home. Davis=s entering the vehicle and driving

away supports a reasonable inference she did not have an opportunity to exit the vehicle before Davis began

driving. Moreover, the ensuing argument between defendant and Davis supports the reasonable conclusion

defendant was surprised by Davis=s driving away. Because Davis drove the vehicle, defendant had no

control over his stopping the vehicle in the middle of the road or his subsequent threat. The foregoing

evidence supports a finding defendant was without blame in occasioning the situation presented here.

        Defendant also presented some evidence that she acted reasonably to avoid a greater injury than that

which might have resulted from driving a short distance to park while intoxicated. The evidence was that

Davis stopped the car in the middle of the road and threatened to harm defendant if she did not move it.

Defendant then got behind the wheel, drove two blocks, and parked. The jury could find that defendant

reasonably believed that simply activating her flashing lights or pulling her car to the

side of the road was insufficient to avoid a greater injury than driving the car to a side

street. The record contains no evidence concerning the width of the road or the

availability of a shoulder. Regardless, once a defendant establishes the existence of even slight




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evidence to support her defense, the reasonableness of her beliefs under the circumstances becomes a

question for the jury.

        The court in People v. Cord, 258 Ill. App. 3d 188, 192, 630 N.E.2d 173,

177 (1994), noted that "[s]ome courts have read the second prong of the defense to justify only such

otherwise illegal conduct which constitutes the sole reasonable alternative to the act" and itself adopted

that position. (Emphasis added.) People v. Cord, 258 Ill. App. 3d 188, 192, 630

N.E.2d 173, 177 (1994). However, that conclusion is contrary to the plain

language of section 7-13 of the Criminal Code of 1961, which states that the defense is

available if the accused "reasonably believed such conduct was necessary to avoid a public or private

injury greater than the injury which might reasonably result from his own conduct." 720 ILCS 5/7-13

(West 2004). To require the defendant=s conduct to be the "sole" alternative to illegal

conduct would render the language in the statute referring to the accused=s reasonable

belief meaningless. "We must construe the statute so that each word, clause, and sentence is given a

reasonable meaning and not rendered superfluous, avoiding an interpretation that would render any portion of

the statute meaningless or void." Cassens Transport Co. v. Industrial Comm'n, 218 Ill. 2d 519,

524, 844 N.E.2d 414, 419 (2006).

        If the trial court is permitted to determine that another "reasonable alternative"

existed and therefore refuse to instruct the jury on the defense, then the accused=s

reasonable belief becomes irrelevant. Stated differently, section 7-13 creates both an

objective and subjective test for the reasonableness of the accused=s conduct under the

circumstances. If the jury chose not to believe defendant, or found that her subjective belief that her

conduct was necessary was unreasonable, then it would have rejected her defense. The existence of other

alternatives may lead a jury to find that, given her subjective belief and the circumstances she faced,

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defendant nonetheless did not act objectively reasonably. The trial court was required to leave these

determinations to the jury. We agree with the State that "the rule has an objective factor

since it requires a reasonable belief," but denying a defendant the opportunity to have

the jury decide the reasonableness of her conduct should the trial court find that another

reasonable alternative existed would take the objective factor and transforms it into the

determinative test for the availability of the defense.

        The evidence is not so clear and convincing as to permit the judge to find as a matter of law that

there is no affirmative defense. While a reasonable person could conclude that the evidence presented as to

the second prong of the necessity defense was insufficient, whether that is true is not the question before this

court. As to the actual question presented, whether defendant presented even slight evidence to support the

defense, we hold that the evidence presented and the reasonable inferences therefrom are such that she did.

The State is free to argue to the jury what it believes a reasonable person would have done under the

circumstances defendant faced. That it may have a different view of reasonable behavior does not negate

defendant=s right to the instruction, or defendant=s right to have the jury make the final determination.

                                            CONCLUSION

        Because defendant presented some evidence to support it, the trial court was required to give the

jury the instruction on the necessity defense. See Cord, 258 Ill. App. 3d at 192, 630

N.E.2d at 176 ("unless the evidence before the court is so clear and convincing as to permit the court

to find as a matter of law that there is no affirmative defense, the issue of whether a defendant should be

relieved of criminal liability by reason of his affirmative defense must be determined by the jury with proper

instruction as to the applicable law"). Accordingly, we reverse defendant=s conviction and remand for a new

trial. The trial court is directed to instruct the jury as to the defense of necessity in defendant=s second trial.

        Reversed and remanded with instructions.

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         SLATER, J., concurs.

         BARRY, J., dissents.



         JUSTICE BARRY, dissenting:

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         I disagree with the majority=s conclusion that the trial court abused its discretion when it found that the

affirmative defense of necessity was unavailable to the defendant. The issue of whether a defendant should be

relieved of criminal liability by reason of his or her affirmative defense must be determined by the jury with proper

instruction as to the applicable law, unless the evidence before the trial court is so clear and convincing as to

permit the court to find as a matter of law that there is no affirmative defense. People v. Hari, 218 Ill. 2d

275, 843 N.E. 2d 349, 362 (2006), citing People v. Jones, 175 Ill. 2d 126, 132,

676 N.E. 2d 646, 649 (1997).

         In the instant case, the trial court found that the evidence established, clearly and convincingly, that the

affirmative defense of necessity was not available. Particularly given that defendant drove her car for two blocks

prior to pulling over to the side of the road, I cannot find that the trial court abused its discretion. The necessity

defense is viewed as involving a choice between two admitted evils where other optional courses of action are

unavailable, and the conduct chosen must promote some higher value than the value of literal compliance with the

law. People v. Janik, 127 Ill. 2d 390, 399, 537 N.E. 2d 756, 760 (1989). Driving

one=s car while intoxicated for two blocks, for the mere purpose of getting that vehicle out of the way of traffic,

does not promote such a higher value as to excuse the illegal conduct.




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       Because I do not agree that the trial court=s decision was fanciful, arbitrary, or unreasonable to the

degree that no reasonable person would agree with it (see People v. Ortega, 209 Ill. 2d 354, 359,

808 N.E. 2d 496, 500-501 (2004)), I therefore respectfully dissent.




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