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                               Appellate Court                            Date: 2018.02.26
                                                                          08:07:50 -06'00'




                   People v. Mumaugh, 2018 IL App (3d) 140961



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            BRANDON MUMAUGH, Defendant-Appellant.



District & No.     Third District
                   Docket No. 3-14-0961



Filed              January 5, 2018
Rehearing denied   January 5, 2018



Decision Under     Appeal from the Circuit Court of La Salle County, No. 13-CF-372; the
Review             Hon. H. Chris Ryan, Judge, presiding.



Judgment           Reversed.


Counsel on         Michael J. Pelletier, Peter A. Carusona, and Dimitrios G. Golfis, of
Appeal             State Appellate Defender’s Office, of Ottawa, for appellant.

                   Karen K. Donnelly, State’s Attorney, of Ottawa (Patrick Delfino,
                   Lawrence M. Bauer, and Jasmine D. Morton, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              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, 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 and
     her friend, 13-year-old Courtney Brown, 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 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.

         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.

                                                   -2-
       I kept telling her she shouldn’t walk on the road.” Mumaugh and Courtney found Jennifer
       lying facedown 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 miles per hour. 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 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
       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.

                                                  -3-
¶ 14        Mumaugh told Officer Baudino and Detective Gordon that he was driving south on
       Highway 15 at about 50 miles per hour 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 La Salle County State’s
       Attorney’s Office, was dispatched to the accident scene. Based on his observations, Diss
       concluded that the crash occurred around the centerline 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 centerline 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 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
       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 0.2 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 tetrahydrocannabinol (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
       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.


                                                  -4-
¶ 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%.
¶ 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. Second, 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; 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 within 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, 270-71 (1994) (ruling that the
       statute “creates an absolute bar against driving a motor vehicle following the illegal ingestion
       of any cannabis or controlled substance” “without regard to physical impairment”). In fact, our
       supreme court has held that the statute presumes impairment. Martin, 2011 IL 109102, ¶ 23
       (“[T]he legal fiction of presumed impairment that we adopted in the context of driving with a

           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 milliliter of whole blood or 10
       nanograms or more of delta-9-THC per milliliter of other bodily substance within two hours of driving.
       See 625 ILCS 5/11-501(a)(6), 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.

                                                     -5-
       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).
¶ 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 Way, 2017 IL 120023, ¶ 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 (internal quotation
       marks omitted)). 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.
¶ 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


          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.

                                                    -6-
       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 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. Id. at 146-47. Toxicology reports administered after
       the accident indicated that the pedestrian had a blood alcohol level of 0.298. Id. at 149. Our
       appellate court held that the evidence established that the proximate cause of the accident was
       the pedestrian’s own conduct because the pedestrian had violated the law and “was not in an
       area where defendant should have known or expected a pedestrian to be.” Id. at 153.
¶ 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

           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.

                                                     -7-
       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 miles per
       hour travels more than 73 feet in one second. The State did not present evidence establishing
       that a nonimpaired 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 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 centerline of Highway 15, (2) Mumaugh’s
       vehicle was traveling south on Highway 15 at approximately 50 miles per hour, and
       (3) Jennifer was walking south on the same road near the centerline 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 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

                                                    -8-
       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.
¶ 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 (nonnegligently), 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 [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 257-58. 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) 130810, ¶ 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) 140604, ¶ 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.
¶ 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.

           6
            See Martin, 2011 IL 109102 (the defendant drove his vehicle across the centerline); People v.
       Merrick, 2012 IL App (3d) 100551 (the defendant’s blood alcohol content was 0.212 and the defendant
       conceded the element of causation); People v. Swift, 2016 IL 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 blood alcohol content was 0.109 to 0.119 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, 392 Ill. App. 3d 127 (2009)
       (the defendant was impaired and was street racing).

                                                     -9-
       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 a sudden unforeseeable 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. (Internal quotation marks
       omitted.) Id. ¶ 29 (defendant’s car had “crossed the centerline” and “collided head-on” with
       the victim’s vehicle (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) 110865, ¶ 16 (ruling that an appellate court “must avoid the adjudication of
       constitutional questions when a case can be decided on other grounds”).

¶ 40                                        CONCLUSION
¶ 41      For the foregoing reasons, the judgment of the circuit court of La Salle County is reversed.

¶ 42      Reversed.




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