                                No. 2--06--0725   Filed: 6-5-08
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 05--DT--1422
                                       )
JOHN J. WEATHERSBY,                    ) Honorable
                                       ) Allen M. Anderson,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       Defendant, John J. Weathersby, appeals from his conviction of driving under the influence

of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2004)) and from his sentence of 18 months'

supervision and court-ordered restitution, fines, and costs. On appeal, defendant argues that: (1)

the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred by admitting

horizontal gaze nystagmus (HGN) testing into evidence without a Frye hearing; (3) the order of

restitution to the Kane County DUI Task Force was improper; and (4) he is entitled to $80 credit

toward his $200 fine. We affirm as modified in part and vacate in part.

                                              FACTS

       The following facts are taken from a bystander's report signed by both defense counsel and

the assistant State's Attorney. Montgomery police officer John Fritz testified that he saw defendant
No. 2--06--0725


driving on the afternoon of October 2, 2005, and confirmed via radio dispatch that defendant's

license had been suspended. There was a female passenger in defendant's front passenger seat.

Officer Fritz followed defendant for several blocks but did not see defendant violate any traffic laws.

Officer Fritz eventually activated his overhead lights, and defendant pulled into a driveway and

waited for Officer Fritz to approach. While speaking with defendant, Officer Fritz noticed that

defendant was "thick-tongued," his eyes were "glassy," and his breath smelled of alcohol. Officer

Fritz asked defendant if he had been drinking and defendant responded that he had had "a few."

       Officer Fritz testified that he saw a partially full bottle of malt liquor sitting next to defendant

on the front seat of defendant's car. The 22-ounce bottle was three-fourths empty and defendant

admitted that it was his. There were two other bottles of alcohol in the car. The female passenger

said that the two bottles belonged to her. Officer Fritz ordered defendant out of the car. Because

one of defendant's legs had been amputated, he used the car to support himself. Officer Fritz

testified that defendant followed all his instructions.

       Officer Fritz testified that he arrested defendant and took him to the Montgomery police

station. While defendant was alone in the booking room, he fell asleep on a wooden bench. Officer

Fritz testified that it is not uncommon for an arrestee to fall asleep on the booking room bench.

After 20 minutes, Officer Fritz awakened defendant and asked him to take a Breathalyzer test.

Defendant refused to do so. Officer Fritz testified that defendant's speech was still "thick-tongued."

Fritz believed that defendant was "unfit to drive" and "under the influence of alcohol."

       Officer Fritz testified that he received field sobriety training from the Illinois State Police

five years earlier. He explained that the HGN test is an indicator of alcoholic influence and that "6

clues" indicates a blood alcohol level of .08 or above. He performed the HGN test on defendant.




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Officer Fritz believed that defendant failed the test, because Officer Fritz saw "distinct nystagamos

[sic]" in both of defendant's eyes.

         Montgomery police sergeant Linda Arnold testified that she assisted Officer Fritz after he

pulled defendant's car over. Sergeant Arnold saw defendant and testified that he had "glassy,

bloodshot eyes and a smell of alcohol." Sergeant Arnold heard defendant say he had had "a few

beers." Sergeant Arnold did not see defendant drive, but she believed he was unfit to drive because

he was "under the influence of alcohol."

         Defendant presented no witnesses. A jury found defendant guilty of DUI. The trial court

sentenced defendant to 18 months' supervision, fined him $200, assessed costs of $300, and imposed

a $100 trauma center fee, a $150 DUI crime lab fee, and a $500 fee to be paid to the DUI prevention

fund. The trial court also ordered defendant to pay $100 restitution to the Kane County DUI Task

Force.

         Defendant filed this timely appeal.

                                               ANALYSIS

                                      I. Sufficiency of Evidence

         On appeal, defendant first contends that the State failed to prove him guilty beyond a

reasonable doubt of DUI. In support of that contention, defendant argues that Officer Fritz's

observations of defendant, that he had "thick-tongued speech" and "glassy" eyes, were ambiguous

and highly subjective. Defendant contends that the State failed to establish that Officer Fritz was

familiar with what defendant's speech ordinarily sounded like or what his eyes ordinarily looked

like. Defendant points out that he did not violate any traffic laws; he was cooperative; and the only

sobriety test performed on defendant was the HGN test, which was inadmissible and unduly

prejudicial.


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       Our review of this case requires us to apply the standard of whether any reasonable fact

finder could have found the essential elements of the crime beyond a reasonable doubt when

viewing the evidence in the light most favorable to the prosecution. People v. Collins, 106 Ill. 2d

237, 261 (1985). "In conducting this inquiry, the reviewing court must not retry the defendant."

People v. Cunningham, 212 Ill. 2d 274, 279 (2004). Rather, the reviewing court must examine the

record, keeping in mind that it was the trier of fact who saw and heard the witnesses. Cunningham,

212 Ill. 2d at 280. A reviewing court may not substitute its judgment for that of the trier of fact on

questions of the weight of the evidence, the credibility of the witnesses, or the resolution of

conflicting testimony. People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). Testimony may be found

insufficient only where it is clear from the evidence in the record that no reasonable person could

accept it. Cunningham, 212 Ill. 2d at 280.

       Section 11--501(a)(2) of the Illinois Vehicle Code provides that an individual "shall not drive

or be in actual physical control of any vehicle within this State" while such individual is "under the

influence of alcohol." 625 ILCS 5/11--501(a)(2) (West 2004). A defendant is guilty of DUI if the

State proves that he was under the influence of alcohol to a degree that rendered him incapable of

driving safely. People v. Gordon, 378 Ill. App. 3d 626, 631-32 (2007).

      The State may prove a defendant guilty of DUI based upon circumstantial evidence. People

v. Diaz, 377 Ill. App. 3d 339, 345 (2007). "Circumstantial evidence is proof of certain facts and

circumstances from which the fact finder may infer other connected facts which usually and

reasonably follow from the human experience and is not limited to facts that may reasonably have

alternative, innocent explanations." Diaz, 377 Ill. App. 3d at 345. The State must prove each

element of the charged offense beyond a reasonable doubt. Diaz, 377 Ill. App. 3d at 345.




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        The fact that a defendant committed no traffic violations and was cooperative does not

preclude a DUI conviction. For example, in People v Sturgess, 364 Ill. App. 3d 107 (2006), the

defendant's conviction of DUI was affirmed by the appellate court even though she did not violate

any traffic laws and was cooperative with the officer. The court noted that the evidence showed that

the defendant had a strong odor of alcohol, slurred speech, and bloodshot eyes and that she failed

a field sobriety test and refused to take a Breathalyzer test. Sturgess, 364 Ill. App. 3d at 110, 115-

16.

      After pulling defendant's vehicle over, Officer Fritz observed that defendant had glassy eyes,

thick-tongued speech, and a smell of alcohol on his breath. Similar evidence has been sufficient to

sustain DUI convictions in Illinois. See, e.g., Diaz, 377 Ill. App. 3d. at 345 (the defendant's DUI

conviction was affirmed where an officer testified that the defendant had bloodshot eyes, "mumbled"

speech, a "moderate" odor of alcohol, and a balance problem as he exited his vehicle and that he

failed to complete a one-leg-stand test); see also People v. Mathews, 304 Ill. App. 3d 514, 516

(1999) (the defendant's conviction of DUI was affirmed where an officer testified that the defendant

appeared intoxicated and had an odor of alcohol, poor speech, poor balance, and a poor manner of

walking). In addition, in this case, defendant refused to take a Breathalyzer test. Such a refusal is

circumstantial evidence of a defendant's consciousness of his own guilt. People v. Johnson, 218 Ill.

2d 125, 140 (2005). Defendant also had in his car a 22-ounce bottle of malt liquor that was three-

fourths empty, and defendant admitted to Officer Fritz that it was his. Defendant also admitted to

Officer Fritz that he had "had a few" drinks. Defendant offered nothing to contradict the State's

evidence.

        Defendant relies on People v. Barham, 337 Ill. App. 3d 1121 (2003), which reversed a

defendant's conviction of reckless homicide, noting that there was conflicting evidence about the


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amount of alcohol the defendant had consumed and that there was no evidence that he drove

erratically, acted inappropriately, or displayed any other typical characteristics of intoxication.

Barham, 337 Ill. App. 3d at 1131-32, 1136. However, defendant ignores that the appellate court also

noted that there was no evidence that the defendant had glassy eyes, had slurred speech, or otherwise

appeared intoxicated. Barham, 337 Ill. App. 3d at 1131. In contrast, in this case there was such

testimony by Officer Fritz and Sergeant Arnold. Therefore, Barham is factually distinguishable

from the case at bar and is not applicable to this case.

       Viewed in the light most favorable to the prosecution, the evidence in this case was not so

improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt. The uncontroverted

evidence presented against defendant was sufficient to convict him, without the findings of the HGN

test, which we will discuss next.

                                    II. Horizontal Gaze Nystagmus Test

                                               A. Frye Hearing

       Defendant further contends that reasonable doubt arises from Officer Fritz's testimony

regarding the HGN test administered to defendant, which we did not consider in making our

determination in the previous analysis. Defendant argues that the trial court erred by admitting the

HGN test as scientific evidence without first holding a Frye hearing to determine its admissibility.

See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Illinois, generally, a Frye hearing must

be held when a party wants to admit purported scientific evidence. Frye holds that scientific evidence

is admissible only if the methodology or scientific principle involved is sufficiently established and

has gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014.

       On September 27, 2007, the Supreme Court of Illinois addressed the issue of the general

acceptance of HGN testing. People v. McKown, 226 Ill. 2d 245 (2007). The court in McKown held

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that a Frye hearing must be held to determine whether the HGN test has been generally accepted as

a reliable indicator of alcohol impairment. McKown, 226 Ill. 2d at 275.

        In the instant case, we must follow the precedent of our supreme court and conclude that a

Frye hearing should have been held before Officer Fritz was permitted to testify regarding the result

of the HGN test. See McKown, 226 Ill. 2d at 275. Such a hearing was necessary to determine if the

HGN test had been generally accepted as a reliable indicator of alcohol impairment. See McKown,

226 Ill. 2d at 275.

                                                 B. Plain Error

        Defendant argues that the court erred when it admitted the result of the HGN test and that this

error warrants a new trial. The State contends that defendant waived this argument because

defendant failed to object to the admission of the evidence, failed to request a Frye hearing, and failed

to raise the issue in his posttrial motion. Defendant responds that we should address the issue

because it rises to the level of plain error. In the alternative, defendant argues that his trial counsel

was ineffective for not challenging the admissibility of the HGN testimony.

         Plain error is a limited and narrow exception to the general waiver rule, invoked only where:

(1) the evidence is closely balanced; or (2) the alleged error is so substantial that it deprives the

defendant of a fair trial. 134 Ill. 2d R. 615(a); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

Regarding the first prong, the defendant must prove both that the trial court committed an error and

that the error was prejudicial. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). An error is

prejudicial only if the evidence is so closely balanced that the error alone severely threatens to tip the

scales of justice against the defendant. Piatkowski, 225 Ill. 2d at 565. Therefore, if the evidence is

not closely balanced but, rather, is strongly weighted against the defendant, prejudicial error cannot

be established. See Piatkowski, 225 Ill. 2d at 565. Regarding the second prong, the defendant must

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prove that the trial court committed an error and that the error was so serious that it affected the

fairness of the trial and "challenged the integrity of the judicial process." Piatkowski, 225 Ill. 2d at

565. Because the right involved is so important, prejudice to the defendant is presumed, regardless

of the strength of the evidence. Herron, 215 Ill. 2d at 186-87.

       Here, defendant argues only the first prong of the plain-error test. We have already

determined that error occurred in the instant case. Specifically, the trial court erred by admitting the

HGN evidence without conducting a Frye hearing. See McKown, 226 Ill. 2d at 275.1

       Although there was error, the error was not prejudicial and it will not result in a remand in

this case, because the evidence was not closely balanced. In this case, the State presented evidence

that defendant had thick-tongued speech, glassy eyes, and a smell of alcohol on his breath. He

admitted to having had a few drinks, had an open 22-ounce bottle of malt liquor that was three-

fourths empty, and refused to take a Breathalyzer test. This evidence was not refuted and, thus, we

believe that the evidence was not closely balanced. The HGN evidence was merely cumulative; had

defendant objected to the evidence, and had it been excluded, the result would not have been

different. Therefore, because the error was not prejudicial, the error does not warrant a new trial.

                                            C. Effective Assistance

       Next, defendant argues that he was denied effective assistance of counsel because his trial

counsel failed to request a Frye hearing before admission of the HGN evidence. A defendant has the

constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970,




       1
           However, we note that, at the time of the trial, the presiding trial judge did not have the

benefit of the McKown opinion and our appellate court had divergent opinions on this issue.



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art. I, §8; Strickland v. Washington, 466 U.S. 668, 687-89, 80 L. Ed. 2d 674, 693-95, 104 S. Ct. 2052,

2064-65 (1984); People v. Gaines, 105 Ill. 2d 79, 86 (1984).

        In determining whether a defendant was denied effective assistance of counsel, we apply the

two-prong test set forth in Strickland and adopted by the Illinois Supreme Court in People v.

Albanese, 104 Ill. 2d 504 (1984). First, a defendant must show that his counsel's representation fell

below a reasonable standard. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Second, a defendant must establish that the deficient representation resulted in prejudice. Strickland,

466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Both prongs of the Strickland test must be

satisfied to establish ineffective assistance of counsel. Albanese, 104 Ill. 2d at 525-27. In

determining whether a defendant has received ineffective assistance of counsel, a reviewing court

may review either prong first, and the court need not consider both prongs of the standard if a

defendant fails to show one prong. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at

2069.

        In this case, defendant cannot establish the second prong of the Strickland test because he fails

to demonstrate prejudice. A defendant is prejudiced if there is a reasonable probability that the

outcome of the trial would have been different or that the result of the proceeding was unreliable or

fundamentally unfair. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People

v. Evans, 209 Ill. 2d 194, 220 (2004). Such a reasonable probability "is a probability sufficient to

undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct.

at 2068. Defendant did not suffer prejudice from the alleged error made by his counsel either by

failing to request a Frye hearing or by failing to object to the admission of the HGN test result. As

explained earlier in this opinion, the State produced enough evidence without the HGN test result to

convict defendant of DUI. A court may rely on the observations of a trained police officer in making


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a judgment about a defendant's level of intoxication. Gordon, 378 Ill. App. 3d at 638. The officers'

unrefuted testimony was more than sufficient to prove beyond a reasonable doubt that defendant was

guilty of DUI. Therefore, because the court had sufficient evidence to prove guilt beyond a

reasonable doubt without the HGN test result, defendant fails to demonstrate that the outcome of his

trial would have been different even if his counsel had not made the alleged error. See Gordon, 378

Ill. App. 3d at 640. Moreover, the record does not reflect that the result of the trial was unreliable

or fundamentally unfair. Therefore, applying the Strickland test, we hold that defendant was not

deprived of the effective assistance of counsel.

                                           III. Restitution

       Defendant argues that the trial court erred by ordering him to pay $100 restitution to the Kane

County DUI Task Force, because the Kane County DUI Task Force is not entitled to restitution under

section 5--5--6 of the Unified Code of Corrections (730 ILCS 5/5--5--6 (West 2004)). The State

concedes that this portion of the trial court's order was not authorized and should be vacated. We

agree, following People v. Velez, 336 Ill. App. 3d 261, 267 (2003) (a law enforcement agency is not

entitled to restitution for performing its basic function of investigating and solving crimes). In this

case, the State did not establish that defendant's offense proximately caused the Kane County DUI

Task Force any out-of-pocket expenses, losses, damages, or injuries. See 730 ILCS 5/5--5--6(a), (b)

(West 2004); People v. Danenberger, 364 Ill. App. 3d 936, 941 (2006). Accordingly, the trial court

lacked the authority to enter the restitution order, and we vacate that part of the judgment.

                                       IV. Credit Toward Fine

      Finally, defendant argues, and the State concedes, that he is entitled to a $5 credit for each of

the 9 days he spent in custody while awaiting release before trial and the 7 days while awaiting

sentencing; a total of 16 days. Section 110--14 of the Code of Criminal Procedure of 1963 provides


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that a defendant is entitled to a $5 credit for each day spent in custody. See 725 ILCS 5/110--14

(West 2004). We, therefore, modify the sentencing order to reflect an $80 credit toward the $200 fine

the trial court imposed on defendant.

        For these reasons, the judgment of the circuit court of Kane County is affirmed as modified

to reflect an $80 credit, and the restitution order is vacated.

        Affirmed as modified in part and vacated in part.

        BOWMAN and ZENOFF, JJ., concur.




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