## Illinois Official Reports

Appellate Court

People v. Petty

, 20 20 IL App ( 3d ) 180011

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

- Appellee, v. SCOTT A. PETTY, Defendant

- Appellant.

District & No. Third District

No. 3

- 18

- 0011

Rehearing denied
Opinion f iled March 12, 2020

March 12, 2020

Decision Under

Review Appeal from the Circuit Court of Stark County, No. 16

- CF

- 5; the Hon. Thomas A. Keith, Judge, presiding.

Judgment Conviction vacated.

Counsel on
Appeal Jack A. Schwartz, of Jack A. Schwartz, P.C., of Rock Island, for appellant.

James D. Owens, State’s Attorney, of Toulon (Patrick Delfino, Thomas D. Arado, and Richard T. Leonard, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.- 2

- Panel JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice Lytton concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.

OPINION

¶ 1 The State charged Scott A. Petty with, inter alia , one count of aggravated driving a vehicle

while under the influence of methamphetamine, in violation of sections 11

- 501(a)(6) and 11

- 501(d)(1)(F) of the Illinois Vehicle Code (625 ILCS 5/11

- 501(a)(6), (d)(1)(F) (West 2014)). Following a stipulated bench trial, the trial court found Petty guilty of the offense charged and

sent enced him to nine years in prison. Petty now appeals, arguing (1) the trial court erred in failing to suppress the State’s evidence, (2) the State’s evidence was insufficient to sustain his conviction, and (3) section 11

- 501(a) is unconstitutional. We ente red an order reversing and vacating Petty’s conviction. The State filed a petition for rehearing. We modify our decision on denial of the State’s petition and file it as a published opinion.

¶ 2 FACTS
¶ 3 On November 9, 2015, Stark County sheriff’s deputy Du stin Schaill responded to a reported car crash on Illinois Route 40 at approximately 630 feet north of 800 N. Bradford, Penn Township. Schaill arrived on site at about 5:13 p.m. He observed a Bradford Rescue unit removing Petty from his van in the southbou nd lane facing east. The front of Petty’s van was heavily damaged and seemed to have collided with another car. Petty did not appear to be coherent. Officer Todd Marquez of the Bradford Police Department also responded to the crash

and assisted with traffi c control.
¶ 4 The other car was in the northbound ditch and had significant damage from what appeared to be a frontal collision. The Bradford Rescue unit removed the driver, Gina Masters, from the

crash site and air

- lifted her to OSF Saint Francis Medical Ce nter (Saint Francis) in Peoria. Petty was transported via ambulance to the same location. While Schaill was in transit, he learned that Masters had died en route to Saint Francis. At the crash site, Officer Marquez observed drug paraphernalia and a substan ce he believed to be cannabis inside Petty’s van. Marquez informed Schaill of his observations and collected the items.

¶ 5 Petty arrived at Saint Francis at about 6:43 p.m. At about 6:50 p.m., Dr. Jennifer E. Schmidt ordered that a urine sample be drawn fro m Petty. After Deputy Schaill arrived at Saint Francis, he placed Petty under arrest for driving under the influence and read him the motorist’s implied consent warning at about 9:02 p.m., and at about 9:25 p.m. he independently signed a separate request f or a urine draw. At the time, Petty was semiconscious, severely injured, and incoherent. A single urine sample was collected from Petty at 4 a.m.
¶ 6 The State filed four criminal charges against Petty on March 10, 2016. Count I alleged a Class 2 felony offe nse in violation of sections 11

- 501(a)(6), 11

- 501(d)(1)(F), and 11

- 501(d)(2)(G) of the Vehicle Code (625 ILCS 5/11

- 501(a)(6), (d)(1)(F), (d)(2)(G) (West 2014)). It stated that Petty, “while under the influence of methamphetamine as listed in the Methamphet amine Control and Community Protection Act, drove [his van], causing [it] to strike the vehicle driven by Gina M. Masters, thereby causing the death of Gina M. Masters,- 3

- and [Petty’s] driving in violation of Section 11

- 501(a)(6) was a proximate cause of the death

of Gina M. Masters.”

¶ 7 Petty filed two separate motions to suppress the urine draw and test results. In the first motion, he alleged that the urine draw was performed without first obtaining his consent. Specifically, he argued that the urine draw wa s not part of his medical treatment and was conducted without probable cause. The trial court denied the motion, ruling that the Illinois implied consent statute (625 ILCS 5/11

- 501.1 (West 2014)) creates an exception to the warrant requirement of the fourt h amendment.
¶ 8 In his second motion, Petty argued that the trial court should suppress all the findings of the urine analysis obtained from his sample. He contended that, although the tests were performed for medical use only and not for legal purposes, the medical facility turned over the results without his consent and without a warrant. The trial court denied Petty’s second motion on September 13, 2017, ruling that the hospital records would come in under the business records exception to the hearsay rule

. ¶ 9 On October 6, 2017, Petty executed a “waiver of jury and a plea of not guilty” form. A week later, the parties tendered the following facts in stipulation: that Schaill and Marquez would testify to their observations at the crash site and on the date o f the accident; that Medical Examiner J. Scott Denton would testify that he performed an examination of Masters on November 11, 2015, and determined that she died “from multiple blunt injuries due to a motor vehicle collision”; that Dr. Schmidt would testi fy that she ordered an analysis of Petty’s urine from which amphetamine and benzodiazepines were detected; and that forensic scientist Joni C. Little would testify that she analyzed 0.2 grams of the white powder found in Petty’s car and detected the presen ce of methamphetamine. Petty and counsel for the parties signed the written stipulation form.
¶ 10 In the stipulations, Petty reserved the right to raise “evidentiary objections to the admissibility of [the] test results as previously argued in [his] pretrial motions.” He stated that he would present testimony from Ronald Henson regarding “the weight to be given to the test

results.”
¶ 11 The parties then proceeded to a stipulated bench trial. At the bench trial, Petty stipulated to the facts previously tendered. Counsel for the defense explained that Petty was stipulating only that the evidence would be as tendered. Ronald Henson never testified, and no additional testimony was presented.
¶ 12 The trial court ruled as followed:

“I find that there is a factual basis t o support a finding of beyond a reasonable doubt that the defendant is guilty of Count One as charged for the aggravated driving of a vehicle under the influence. His stipulation is accepted, and it is ordered and directed that the defendant is found guilt y of Count One of the indictment.”
¶ 13 The court subsequently sentenced Petty to nine years in prison. On November 14, 2017, Petty timely filed a motion for a new trial arguing, inter alia , that the evidence was insufficient

to sustain his conviction. The tri al court denied his motion.
¶ 14 This appeal now follows.- 4

- ¶ 15 ANALYSIS
¶ 16 I. Sufficiency of the Evidence of Methamphetamine Consumption
¶ 17 On appeal, Petty contends that the State failed to show that he consumed methamphetamine as defined in the Methamphetam ine Control and Community Protection Act. The parties only stipulated to the presence of two substances in his urine: amphetamine and benzodiazepine. Petty argues that the evidence is insufficient to sustain the charge because the State presented

no eviden ce that those compounds resulted from his consumption of methamphetamine. We agree with Petty and vacate his conviction.
¶ 18 In reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Holliday , 2019 IL App (3d) 160315, ¶ 10. A conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. Id. In reviewing the evidence presented, this court should “allow all reasonable inferences from that evidence to be drawn in favor of the [State].” People v. Ma rtin

, 2011 IL 109102, ¶ 15. However, this court “should not make random speculation in favor of the [State].” People v. Dye , 2015 IL App (4th) 130799, ¶ 12. Where review of the evidence turns on a “statutory interpretation, our review is de novo .” Martin

, 2011 IL 109102, ¶ 20.
¶ 19 Petty was charged with the offense of aggravated driving of a vehicle while under the influence of methamphetamine, in violation of sections 11

- 501(a)(6) and 11

- 501(d)(1)(F) of

the Vehicle Code. 625 ILCS 5/11

- 501(a)(6), (d)(1)(F) (W est 2014). Subsection (a)(6) provides:
“A person shall not drive or be in actual physical control of 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 u nlawful use or consumption of *** methamphetamine as listed in the Methamphetamine Control and Community

Protection Act.” 625 ILCS 5/11

- 501(a)(6) (West 2014).
¶ 20 The State first contends that “methamphetamine is an amphetamine, hence the name ‘methamphetami ne.’ ” The State thus argues that a reasonable inference could be drawn that the amphetamine and benzodiazepine found in Petty’s blood were salts, optical isomers, or salts of an optical isomer or analog thereof, from “which the methamphetamine had been

me tabolized.” We disagree.
¶ 21 In reviewing the sufficiency of the evidence, this court “should draw only reasonable inferences in favor of the [State]; we should not make random speculations in favor of the prosecution.” (Emphasis omitted.) Dye , 2015 IL App (4th) 130799, ¶ 12. Whether the metabolization of methamphetamine into amphetamine, benzodiazepine, or both has occurred entails a level of chemical knowledge not ordinarily possessed by the average person. Thus, a determination by the trier of fact that the presence of either chemical compound results from the consumption of methamphetamine requires competent testimony from a person having such specialized knowledge. To sustain Petty’s conviction absent such testimony would be

tantamount to m aking a random speculation regarding the metabolization of methamphetamine

in favor of the State.
¶ 22 The State’s contention also fails because the applicable statute specifically precludes it. The Methamphetamine Control and Community Protection Act defines methamphetamine as “the chemical methamphetamine *** or any salt, optical isomer, salt of optical i somer, or- 5

- analog thereof, with the exception of *** any other scheduled substance with a separate listing under the Illinois Controlled Substances Act.” (Emphasis added.) 720 ILCS 646/10 (West 2014). Amphetamine is listed as a controlled substance under se ction 206(d)(1) of the Illinois Controlled Substances Act, whereas methamphetamine and “its salts, isomers, and salts of its isomers” are listed under section 206(d)(2). See 720 ILCS 570/206(d)(1), (2) (West 2014). So even if one could appropriately infer that amphetamine is a “salt” or “isomer” of methamphetamine simply because of its name, the plain language of both the Illinois Controlled Substances Act and the Methamphetamine Control and Community Protection Act excludes amphetamine as a predicate for a section 11

- 501(a)(6) violation based on consuming methamphetamine. 625 ILCS 5/11

- 501(a)(6) (West 2014).
¶ 23 Finally, the State contends that Petty failed to argue in the trial court that the presence of amphetamine and benzodiazepine is insufficient to estab lish consumption of methamphetamine and has, therefore, “forfeited the argument on appeal.” The State also contends that this court can sustain the decision of the trial court on any grounds supported in the record, regardless of whether the trial court re lied on the grounds and regardless of whether the trial court’s reasoning was correct. The State seems to conclude from these contentions that the presence of methamphetamine in a white powder collected from Petty’s van supports an

inference that he unlawf ully consumed methamphetamine. We again disagree.
¶ 24 First, this court has previously found that a “challenge to the sufficiency of the evidence is not subject to the waiver rule and can be raised by a defendant for the first time on direct appeal, even if not properly preserved.” People v. Muhammad , 398 Ill. App. 3d 1013, 1018 (2010). Thus, Petty’s challenge to the sufficiency of the evidence on appeal is not limited to his theory before the trial court. And second, as previously noted, our duty is to draw reasonable inferences from the evidence, not to “make random speculations in favor of the [State].” Dye , 2015 IL App (4th) 130799, ¶ 12. There is nothing in the stipulated facts showing that Petty consumed methamphetamine, regardless of whether the evidenc e showed that Officer Marquez collected methamphetamine from his car.

¶ 25 II. Sufficiency of the Evidence of a Lesser

- Included Offense
¶ 26 In its petition for rehearing, the State argues for the first time that we should “consider the

issue of whether defend ant was proven guilty beyond a reasonable doubt of the included offense of aggravated driving under the influence (DUI) of amphetamine.” For the reasons that follow, we cannot grant that request.
¶ 27 Section 2

- 9(a) of the Criminal Code defines a lesser

- inclu ded offense as one that “ ‘[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.’ ” People

v. Kennebrew , 2013 IL 113998 , ¶ 28 (quoting 720 ILCS 5/2

- 9 (West 2008)). “[A] defendant may be convicted of an uncharged offense if it is a lesser

- included offense of a crime expressly charged in the charging instrument and the evidence adduced at trial rationally supports a

convicti on on the lesser

- included offense and an acquittal on the greater offense.” People v.

Clark , 2016 IL 118845, ¶ 30 (citing Kennebrew , 2013 IL 113998, ¶ 27). In reducing a conviction on appeal, we apply the “ ‘charging instrument approach’ ” to determine “wh ether an uncharged offense is a lesser

- included offense of a charged offense.” Id. ¶ 31. Under Illinois Supreme Court Rule 615(b)(3), imposition of an uncharged lesser

- included offense is proper- 6

- if “the defendant had sufficient notice of the uncharged offe nse.” Kennebrew , 2013 IL 113998, ¶ 53.
¶ 28 In Clark , our supreme court concluded that armed robbery “ ‘with a dangerous weapon,

other than a firearm’ ” was not a lesser

- included offense of armed robbery with a firearm. (Emphasis omitted.) Clark , 2016 IL 11884 5, ¶ 38. The court stated that it
“would have to stretch plain meaning and common understanding beyond a semblance of reason to conclude that a charge that a defendant committed an offense while ‘armed with a firearm’ puts that defendant on notice, explic itly or inferentially, that he may be prosecuted for, and convicted of, an uncharged offense committed ‘with a dangerous

weapon, other than a firearm.’ ” (Emphasis in original.) Id.
We find our supreme court’s holding and reasoning in Clark applicable to t he State’s request in its petition for rehearing.
¶ 29 The State, exercising its discretion, charged Petty with a DUI in violation of section 11

- 501(a)(6) of the Vehicle Code (625 ILCS 5/11

- 501(a)(6) (West 2014)), alleging that he was

under the influence of me thamphetamine as defined in the Methamphetamine Control and Community Protection Act (720 ILCS 646/10 (West 2014)). That act specifically excludes any other scheduled substance with a separate listing under the Illinois Controlled Substances Act. As noted, amphetamine is listed as a controlled substance under section 206(d)(1) of the Controlled Substances Act, whereas methamphetamine and “its salts, isomers, and salts of its isomers” are separately listed under section 206(d)(2) of that act. 720 ILCS 570/20 6(d)(1), (2) (West 2014). In alleging the consumption of methamphetamine as defined in the Act, the charging instrument excluded all other convictions for any other substances listed under the Illinois Controlled Substances Act. It also placed Petty on not ice that the proof sufficient for his conviction was limited to evidence of consumption of methamphetamine. Petty did not have “sufficient notice of the uncharged offense” of driving while under the influence of amphetamine. Kennebrew , 2013 IL 113998, ¶ 53 . Therefore, the State’s request in its petition for rehearing goes beyond our authority under Rule 615(b)(3).

¶ 30 CONCLUSION
¶ 31 The judgment of the circuit court of Stark County is vacated, and Scott A. Petty’s conviction for aggravated driving while under the influence of methamphetamine is vacated, and the State’s petition for rehearing is denied.
¶ 32 As a result of our ruling, we need not address Petty’s arguments regarding (1) the constitutionality of section 11

- 501(a) and (2) the suppression of the eviden ce.

¶ 33 Conviction vacated.

¶ 34 JUSTICE SCHMIDT, dissenting:
¶ 35 I respectfully dissent. In my opinion, the evidence, when viewed in the light most favorable to the State, supports the trial court’s finding that defendant violated subsection 11

- 501(a)(6)

of the V ehicle Code.
¶ 36 The majority acknowledges that, when reviewing the sufficiency of the evidence, we must ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Holliday , 2019 IL App (3d) 160315, ¶ 10. The majority continues- 7

- that the reviewing court will not reverse unless the evidence is so improbable as to create a reasonable doubt of defendant’s guilt. Id. But then the majority does just that.
¶ 37 The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances but rather be satisfied that all evidence, taken together, establishes defendant’s guilt. People v. Sutherland , 223 Ill. 2d 187, 243 (2006). Defendant struck a car

and killed the driver. When t he paramedics removed defendant from his vehicle, he was incoherent. Officers found drug paraphernalia and a white powdery substance in his car. A forensic scientist identified this substance as methamphetamine. Defendant’s urinalysis returned a positive r esult for benzodiazepines and amphetamine. The subsection under which the State charged defendant criminalizes operating a motor vehicle when a defendant has any amount of a “drug, substance, or compound” in his “breath, blood, or urine resulting from the unlawful use or consumption of *** a controlled substance listed in the Illinois Controlled Substances Act, *** or methamphetamine.” 625 ILCS 5/11

- 501(a)(6) (West 2014). The State put forth a common

- sense argument: methamphetamine is an amphetamine. See

Me thamphetamine , The National Institute on Drug Abuse (revised May 2019), https:// www. drug abuse.gov/ publications/ drugfacts/ methamphetamine [https:// perma.cc/ 526E

- KZFL]. The consumption of methamphetamine metabolizes down into amphetamine. See Robert West

et al.

, Differentiating Medicinal F rom Illicit Use in Positive Methamphetamine Results in a Pain Population , 37 J. of Analytical Toxicology 83, 84 (2013) (“[Methamphetamine] is metabolized by hepatic microsomal enzymes to amphetamine.”). Defendant had methamphetamine in his vehicle and paraphernalia to consume it. He tested positive for amphetamines. Therefore, one can make a reasonable infer ence that defendant was under the influence of methamphetamine at the time of the collision.
¶ 38 The majority also contends the State failed to satisfy the statutory requirements to sustain

a conviction under section 11

- 501(a)(6) of the Vehicle Code. Section 501(a)(6) describes not only consumption of methamphetamine but also any drug listed in the Illinois Controlled Substances Act. Referring to the Illinois Controlled Substances Act, one can see that both amphetamine and methamphetamine are included. 720 IL CS 570/206(d)(1), (2) (West 2014). Therefore, the State proved defendant was in violation of the charging statute.