                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Merrick, 2012 IL App (3d) 100551




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    BRUCE N. MERRICK, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0551


Rule 23 Order filed        March 1, 2012
Motion to publish
allowed                    April 18, 2012
Opinion filed              April 18, 2012


Held                       Defendant’s conviction for aggravated DUI was affirmed over his
(Note: This syllabus       contentions that there was no proof his alcohol consumption was the
constitutes no part of     proximate cause of the accident that resulted in the death of a friend, his
the opinion of the court   sentence was excessive, and the trial court erred in admitting three victim
but has been prepared      impact statements, since defendant conceded he was driving at the time
by the Reporter of         of the accident and that his blood alcohol content was above the legal
Decisions for the          limit, the sentence was within the statutory range, he had a prior Class 1
convenience of the         felony, and the trial properly considered the aggravating and mitigating
reader.)
                           factors, including the hardship to his family.


Decision Under             Appeal from the Circuit Court of Kankakee County, No. 05-CF-595; the
Review                     Hon. Susan Sumner-Tungate, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michelle A. Zalisko, of State Appellate Defender’s Office, of Mt.
Appeal                     Vernon, for appellant.

                           John J. Boyd, State’s Attorney, of Kankakee (Terry A. Mertel and Judith
                           Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                           Justices Lytton and Wright concurred in the judgment and opinion.




                                             OPINION

¶1           After a jury trial, the defendant, Bruce N. Merrick, was convicted of two counts of
        aggravated driving while under the influence of alcohol (DUI). 625 ILCS 5/11-501(a)(1),
        (a)(2), (d)(1)(F) (West 2004). The two counts merged, and the defendant was sentenced to
        8 years in the Department of Corrections (DOC), with the final 11 months of the sentence
        to be served at home with electronic home monitoring. See 730 ILCS 5/5-8A-3 (West 2004).
        On appeal, the defendant argues that: (1) the State failed to prove the defendant guilty beyond
        a reasonable doubt because there was no proof that the defendant’s alcohol consumption was
        the proximate cause of the automobile accident; (2) his sentence was excessive; and (3) the
        trial court abused its discretion in admitting and considering three victim impact statements
        during sentencing. We affirm.

¶2                                               FACTS
¶3          On July 17, 2005, the defendant was in a motor vehicle collision that resulted in the death
        of his friend, Mark Torstrick. At trial, the State argued that the defendant was driving under
        the influence of alcohol and that this act resulted in Torstrick’s death.
¶4          The State presented the testimony of William Carnahan, who worked for the Kankakee
        County sheriff’s office. Carnahan testified that when he first arrived at the scene of the
        accident, he began documenting the scene and investigating the cause of the crash. He
        checked the scene for skid marks, fluid, debris, gravel, sand, or other substances that could
        have possibly caused the crash. He did not see any foreign matter on the roadway. Carnahan
        also inspected the inside of the vehicle at approximately 3 a.m. and detected the smell of
        alcohol.
¶5          Kimberly White testified that she worked as a nurse at St. Mary’s Hospital on July 17,
        2005. She stated that when the defendant arrived at the hospital, he was classified as a “level
        one trauma” and qualified to have blood and drug testing done to make sure he had a “good

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       level of consciousness.” She testified that blood was drawn from the defendant at 1:55 a.m.,
       and the lab received it at 2:03 a.m. The defendant’s blood alcohol content (BAC) was 0.212.
       White also testified that the defendant was not tested for gamma-hydroxybutyric acid (GHB).
¶6         Coroner Bob Gessner testified from an autopsy report prepared by a medical examiner
       who had died the previous week. Gessner described the multiple injuries to Torstrick as a
       result of the accident and stated that the immediate cause of death was blunt neck and chest
       trauma.
¶7         The defendant testified that he had been in the military for 21 years and that Torstrick had
       been in the Marines. On July 16, 2005, he picked Torstrick up at approximately 1 p.m., and
       on the way to the defendant’s house, they stopped to buy some groceries, including some
       beer. Later on that afternoon, the defendant stated that he began cooking ribs, he drank “two-
       thirds of five beers” while cooking and put some beer on the ribs.
¶8         After Torstrick and the defendant’s son had an argument, Torstrick left the defendant’s
       house, and the defendant went to give Torstrick a ride home. When he found Torstrick, they
       decided to go to a strip club. Once at the strip club, the defendant drank two more beers. He
       and Torstrick also entered into an altercation with some men because the defendant
       commented that one of the strippers was “ugly.” The defendant took Torstrick into the
       bathroom to calm him down. When they returned, the defendant testified that he switched
       to drinking soda in case he needed to “pound somebody.” The defendant stated that the last
       memory he had was right after leaving the strip club and that, as far as he knew, he was the
       driver that night. He had no memory of the accident.
¶9         The defendant’s expert, Paul Bederka, testified that it was very unlikely the defendant
       had passed out from alcohol while driving home. The basis of his opinion was that the
       defendant was a “practiced drinker” who had built a tolerance to alcohol and was more
       functional with higher blood alcohol levels than other drinkers. Bederka believed that
       something else, or something in combination with alcohol, caused the defendant to pass out,
       and he suggested the drug GHB. While Bederka concluded that alcohol was not the major
       contributing factor of the accident, he admitted that it could have been a contributing factor.
¶ 10       In rebuttal, the State produced Illinois State Police forensic scientist John Wetstein.
       Wetstein testified that a 285-pound man would have to consume between 16 and 17 drinks
       in order to have a BAC level of 0.212.
¶ 11       The jury found the defendant guilty, and a sentencing hearing was held on April 29,
       2010. At the hearing, Torstrick’s two sisters and his daughter read victim impact statements
       to the court. The defendant also had a prior criminal record, including a 2002 conviction for
       delivering cocaine, and a prior DUI from 2005.
¶ 12       The defendant’s wife of 20 years, Yongae Merrick, testified regarding the defendant’s
       care since the accident. She stated that every day she has to dress him and apply medication
       to his legs. She stated that the defendant has a hard time getting out of bed and that he goes
       to therapy five days a week at a place approximately 30 minutes from home. The defendant
       had also broken his leg since the accident and nearly had to have his leg amputated. He also
       had to take medications three times a day.
¶ 13       Yongae testified that if the defendant was incarcerated, the family would lose some of

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       the defendant’s benefits and she would be forced to take the children to her native country
       of South Korea in order to stay with her sister. She also faced a deportation hearing on May
       6, 2010, as a result of pleading guilty to a drug conviction from many years prior.
¶ 14       The defendant, who was 50 years old at the time of sentencing, also testified. He stated
       that for a time after the accident he was paralyzed, but through surgery he was able to recover
       partial use of his legs. He had an artificial hip, and his leg was broken that previous year
       because the brace he had been using was unable to support his weight. He also had to have
       someone raise his legs to prevent them from swelling because blood clots cause fluid to stay
       in his legs.
¶ 15       The defendant further testified that he received treatment for post-traumatic stress
       disorder from his 21 years of service in the military. In addition, he had several doctors’
       appointments scheduled, including a test to determine the severity of his ulnar nerve damage
       and a gastrointestinal consult.
¶ 16       The defendant admitted that he had unresolved anger issues resulting from the death of
       his 17-year-old daughter. He admitted that, after her death, he drank “a lot,” but stated that
       he can no longer drink because of the potential interaction of the alcohol with his
       medications.
¶ 17       During cross-examination, the defendant acknowledged that in 2008 he punched an
       individual for parking in a handicapped spot without a handicap placard. He also admitted
       to an altercation with a police officer at the Veteran’s Administration (VA) facility where he
       was receiving treatment.
¶ 18       In imposing sentence, the trial court said that it had considered five or six presentence
       reports dating back from the defendant’s conviction. The court stated that, “as I’ve read
       through all this, it’s as if I were reading about two different people” and referred to the
       defendant as “[v]ery bright” and considered his great commendations from his time spent in
       the military. On the other hand, the court had to consider the loss of Torstrick. The court
       stated “I never knew [Torstrick], but I feel like I know a lot about him just from what his
       sisters and family had to say.”
¶ 19       In evaluating whether there was a likelihood of the crime being repeated, the trial court
       found that the defendant’s current condition did not necessarily prevent him from being able
       to drink and drive, and the court specifically referred to an incident where a handicapped
       person had managed to drive into a tree while under the influence of alcohol. The court
       further reflected that “anger management certainly is something that this defendant needs.”
¶ 20       The trial court also considered the defendant’s family at sentencing and acknowledged
       that the sentence impacted not only Yongae, but the defendant’s children. However, the court
       found “I can do very little to help [Yongae] because she has problems in addition to what are
       created here.”
¶ 21       Ultimately, the court sentenced the defendant to 8 years in the DOC with the last 11
       months to be served at home. The defendant filed a motion to reconsider sentence on May
       25, 2010. The motion argued that the sentence was excessive and that the court failed to
       consider factors in mitigation.
¶ 22       The trial court denied the motion to reconsider sentence. In considering the defendant’s

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       medical condition, the court stated “nothing has been presented to this Court that indicates
       that the department of correction[s] cannot provide adequate treatment and care for this
       particular individual.” While the defense attorney “seem[ed] to imply that the VA [was] the
       only place that [the defendant could] receive the kind of medical treatment” he needed, the
       court found that there was no evidence for such a conclusion. The court concluded that, when
       considering the defendant’s past criminal history, eight years was not excessive. The
       defendant appealed.

¶ 23                                          ANALYSIS
¶ 24                                I. Sufficiency of the Evidence
¶ 25       The defendant’s first argument on appeal is that the State failed to prove him guilty of
       aggravated DUI because there was insufficient proof that his alcohol consumption was the
       proximate cause of the motor vehicle accident. In making this argument, the defendant
       concedes that he was driving the vehicle and that his BAC was above 0.08.
¶ 26       When a defendant challenges the sufficiency of the evidence supporting his conviction,
       a reviewing court must determine whether, when viewing the evidence in the light most
       favorable to the State, any rational trier of fact could have found the essential elements of the
       crime beyond a reasonable doubt. People v. Collins, 214 Ill. 2d 206 (2005). In this case, the
       State had to prove beyond a reasonable doubt that the defendant was (1) in actual physical
       control of a vehicle, (2) with a BAC of 0.08 or more in violation of section 11-501(a)(1), and
       (3) the violation of section 11-501(a) was proximate cause of another person’s death. 625
       ILCS 5/11-501(d)(1)(F) (West 2004); People v. Martin, 2011 IL 109102.
¶ 27       The defendant’s argument is premised upon Bederka’s testimony that something other
       than alcohol must have caused the accident because the defendant was a practiced drinker
       who had a high tolerance for alcohol. However, our supreme court recently held in Martin
       that, in order to obtain a conviction for aggravated DUI, the State was not required to prove
       that actual impairment was the proximate cause of the victim’s death. Martin, 2011 IL
       109102. In Martin, the defendant was found with trace amounts of methamphetamine in his
       system after causing a motor vehicle accident that resulted in the death of two people. Id.
       Similar to the instant case, the defendant argued that there was no evidence of a causal link
       between the trace amount of methamphetamine and the car accident. Id. The court disagreed
       and found that under the DUI statute, proof of impairment was not necessary in two types of
       DUI cases: (1) when the defendant’s BAC was 0.08 or more; or (2) when there was any
       amount of cannabis, controlled substances, or methamphetamine in the defendant’s body. Id.
       ¶ 26. The court reasoned that these cases were “ ‘strict liability’ ” violations as opposed to
       violations that required “proof of impairment.” Id. Therefore, when an aggravated DUI
       charge is based on a violation of section 11-501(a)(1), as it was in this case, “section 11-
       501(d)(1)(F) requires a causal link only between the physical act of driving and another
       person’s death.” Id. In other words, because the defendant had a BAC of 0.08 or higher, the
       State only needed to prove that the defendant’s driving caused Torstrick’s death.
¶ 28       In this case, the defendant concedes that his driving caused the accident. Moreover, the
       evidence at trial, when viewed in the light most favorable to the prosecution, showed that

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       Torstrick died as a result of the accident in that the immediate cause of death was blunt neck
       and chest trauma. Therefore, we find that the State proved beyond a reasonable doubt that
       the defendant was guilty of aggravated DUI.

¶ 29                                     II. Excessive Sentence
¶ 30        The defendant’s next argument on appeal is that the trial court abused its discretion by
       imposing an eight-year term of imprisonment. He specifically contends that the trial court
       did not adequately consider his potential for rehabilitation, the impact that incarceration
       would have on his health, and the hardship to his dependents. We disagree.
¶ 31        The trial court’s sentencing decision is entitled to great deference because the court is in
       a better position than the reviewing court to determine appropriate sentences (People v.
       Stacey, 193 Ill. 2d 203 (2000)) and to balance the need to protect society with the
       rehabilitation of the defendant (People v. Spencer, 303 Ill. App. 3d 861 (1999)). The
       sentencing court has the opportunity to weigh the defendant’s credibility, his demeanor and
       general character, and his mentality, social environment, habits, and age. People v. Streit, 142
       Ill. 2d 13 (1991). Consequently, the trial court’s sentencing determination will not be
       reversed absent an abuse of discretion. Id. A sentence that falls within the statutory range is
       not an abuse of discretion unless it is greatly at variance with the spirit and purpose of the
       law or manifestly disproportionate to the nature of the offense. Stacey, 193 Ill. 2d 203.
¶ 32        In the instant case, the defendant was convicted of a Class 2 felony offense of aggravated
       DUI, punishable by a sentence of not less than 3 years nor more than 14 years. 625 ILCS
       5/11-501(d)(2) (West 2004). Additionally, the defendant had a prior Class 1 felony and was
       therefore ineligible for probation. 730 ILCS 5/5-5-3(c)(2)(F) (West 2004). The court in this
       case imposed a sentence of eight years’ imprisonment, which was well within the statutory
       range.
¶ 33        Contrary to the defendant’s assertion, the record reflects that the trial court adequately
       considered each of the mitigating points raised by the defendant in this appeal. Regarding the
       defendant’s potential for rehabilitation, although the court found the defendant to be “[v]ery
       bright,” it expressed concern about the defendant’s anger management issues and found that
       he needed treatment. This conclusion was supported by the defendant’s acknowledgment that
       he had punched an individual for parking in a handicapped spot and had an altercation with
       an officer at the VA facility. While the defendant argued below that he was unable to commit
       a similar offense due to his medical condition and use of prescription drugs, the court ruled
       that, while it was improbable that the defendant would be in a similar situation, it was not
       impossible.
¶ 34        The court also referred to the five or six presentence reports that had been prepared in
       advance of sentencing and stated that it had read all of them. The court was familiar with the
       defendant’s medical condition, but found no evidence that the defendant could not receive
       adequate treatment in the DOC. Moreover, the court acceded to the defendant’s request to
       place him on electronic monitoring for the last 11 months of his sentence, having considered
       his age and medical history.
¶ 35        Finally, the court specifically considered the hardship to the defendant’s family, but noted

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       that there was not much it could do because Yongae’s deportation proceedings were outside
       the purview of the court. Although the court did not specifically mention the reduction to the
       family’s income once the defendant was incarcerated, the defendant had presented evidence
       of financial hardship to his dependents during sentencing and the court stated it had
       considered all mitigating evidence. People v. Flores, 404 Ill. App. 3d 155 (2010) (holding
       that there is a presumption that the sentencing court considered mitigating evidence before
       it, and that presumption will not be overcome without explicit evidence from the record that
       the trial judge did not consider mitigating factors).
¶ 36        Overall, our review of the record reveals that the trial court properly considered the
       aggravating and mitigating factors when it fashioned the defendant’s sentence. With respect
       to the defendant’s specific arguments, we find the sentence in this case is not manifestly
       disproportionate to the nature of the offense. Thus, we do not believe that the court’s
       imposition of an eight-year term of imprisonment, which was in the middle of the possible
       sentencing range, indicates an abuse of discretion.

¶ 37                                III. Victim Impact Statements
¶ 38       The defendant’s final argument on appeal is that the trial court abused its discretion in
       admitting and considering victim impact statements from Torstrick’s sisters and daughter.
       The defendant acknowledges that the sentencing court is required by statute to allow one
       victim impact statement by the victim or family, and may, in its discretion, allow others. 725
       ILCS 120/6(a) (West 2004). However, the defendant argues that admitting three statements
       amounted to a due process violation because the statements overly emphasized the victim’s
       good conduct and loss to his family. See People v. Richardson, 196 Ill. 2d 225 (2001).
¶ 39       The record reflects that no due process violation occurred and that the defendant received
       a fair sentencing hearing. The trial court referred to the victim impact statements in one
       paragraph of an otherwise lengthy oral sentencing order. Moreover, the defendant put forth
       substantial evidence that the trial court carefully considered. Accordingly, we believe that
       the defendant was not deprived of due process at his sentencing hearing.

¶ 40                                    CONCLUSION
¶ 41       For the foregoing reasons, the judgment of the circuit court of Kankakee County is
       affirmed.

¶ 42      Affirmed.




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