People v. Heineman

2021 IL App (2d) 190689

184 N.E.3d 545

451 Ill.Dec. 958

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Ryan J. HEINEMAN, Defendant-Appellant.

No. 2-19-0689

Appellate Court of Illinois, Second District.

Opinion filed September 30, 2021

James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State Appellate Defender's Office, of Elgin, for appellant.

Patrick D. Kenneally, State's Attorney, of Woodstock (Patrick Delfino, Edward R. Psenicka, and Leslie Martin, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Ryan J. Heineman, was found guilty of two counts of aggravated driving under the influence of alcohol (aggravated DUI) ( 625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(f) (West 2016)), following a single-vehicle crash that resulted in the death of Tanya McDonough, defendant's longtime friend. The trial court sentenced defendant to six years’ imprisonment. Defendant appeals, arguing that (1) the State failed to prove that his blood alcohol concentration was at or above 0.08 grams per 100 milliliters of blood because it relied on lay testimony from Officer Mark Fisher, an investigating police officer, concerning the conversion factor in section 1286.40 of Title 20 of the Illinois Administrative Code (Administrative Code) ( 20 Ill. Adm. Code 1286.40 (2015) ) to convert the results of defendant's blood serum alcohol concentration test into its whole blood equivalent, (2) the trial court erred in denying his posttrial motion to substitute counsel, and (3) the trial court improperly considered McDonough's death as an aggravating factor at sentencing, because the death is a factor inherent in the offense. We conclude that, although the trial court did not abuse its discretion in allowing Fisher to testify as to his training and experience regarding the conversion factor in section 1286.40 of Title 20 of the Illinois Administrative Code ( section 1286.40 conversion factor) to convert the results of defendant's blood serum alcohol concentration test into its whole blood equivalent, the trial court abused its discretion in denying defendant's motion to substitute counsel for posttrial proceedings where the record did not support its finding that the motion was merely a delaying tactic. Therefore, we affirm defendant's conviction but vacate his sentence and remand for new posttrial proceedings.

¶ 2 I. BACKGROUND

¶ 3 On August 11, 2016, defendant was indicted on two counts of aggravated DUI ( 625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(f) (West 2016)) following a single-vehicle accident that caused the death of his passenger, McDonough. Specifically, count I alleged that on June 26, 2016, defendant knowingly drove a motor vehicle while the alcohol concentration in his blood was 0.08 or more, in violation of section 11-501(a)(1) of the Illinois Vehicle Code (Code), which was the proximate cause of McDonough's death, in violation of section 11-501(d)(1)(F). Count II made the same allegations, except that it alleged that defendant was under the influence of alcohol in violation of section 11-501(a)(2) and that said violation was the proximate cause of McDonough's death, in violation of section 11-501(d)(1)(F).

¶ 4 The Trial

¶ 5 A jury trial was held over the course of three days. The evidence established the following. On the evening of June 25, 2016, and into the early morning of June 26, 2016, defendant and McDonough, who were neighbors and longtime friends, hosted a birthday party for McDonough at both of their houses. There were "at least 20, if not more" people at the party, and all of the adults were drinking alcohol, including defendant and McDonough. Also at the party were McDonough's fiancé, Thomas Rice, McDonough's aunt, Michelle Moberg, and several of McDonough's friends, including Lynette Courtney and Theresa Valez. The partygoers frequently went back and forth between the residences.

¶ 6 Several witnesses testified that they observed defendant drinking "Jack [Daniel's whiskey] and Cokes" from a large plastic cup, as well as Jell-O shots, throughout the evening. Moberg, who had worked as a bartender, testified that she saw defendant pour himself and drink a 50/50 mixture of whiskey and Coke into a "big tumbler" that she estimated was three times larger than the average size that such a drink would be served at a bar. Moberg, who would see people drunk on a daily basis at her job, opined at trial that defendant was drunk that night, as did Courtney, Rice, and Valez. When Moberg first met defendant, he was "pretty quiet" and "not outspoken," but at the party, he was "[v]ery bouncy. Very alert. Just more talkative than he normally would be."

¶ 7 At around 1 a.m. on June 26, McDonough got into an argument with Rice, and she left the party on foot. Moberg began to chase after her, but she was tired and sore because she had spent the day packing and moving. At Moberg's request, her 16-year-old son, Justin, and his friend, Zachary, agreed to follow McDonough. Neither Justin nor Zachary drank alcohol at the party, because they were underage.

¶ 8 Justin and Zachary found McDonough lying in a ditch by the side of State Park Road, and they helped her up. Defendant then arrived in his Jeep and pulled into the ditch, running over two "decent size[d] trees" in the process. Justin told defendant that he and McDonough should not be driving, because they had both been drinking. McDonough got into the passenger seat of defendant's vehicle, and they drove back to defendant's house. Justin and Zachary did not get into defendant's vehicle, because Justin knew that defendant had been drinking.

¶ 9 Justin and Zachary then walked back to McDonough's house. Justin testified that, as they approached the house, he saw defendant and McDonough leave in the Jeep again, with defendant driving and McDonough in the front passenger seat. On cross-examination, Justin could not recall stating in his video-recorded statement the day after the incident that, by the time Justin and Zachary arrived back at the party, defendant and McDonough had already left and he did not see defendant's Jeep pull away from the house. He stated at trial that, if he did make such a statement, "it was a mistake because [he] did see them leave."

¶ 10 The State's evidence established that, in the hours after defendant and McDonough left the party, Rice and Moberg both called defendant's cell phone several times. Rice's first attempt to call defendant occurred at 2:39 a.m., and Moberg's first attempt occurred at 2:45 a.m. Defendant answered neither call.

¶ 11 At 2:53 a.m., defendant returned Moberg's call, and the conversation lasted 24 minutes. Moberg testified that, during this call, defendant told her that he had been in an accident and that he was upside down in his car and trapped behind the steering wheel in his seatbelt. He also stated that he heard a woman screaming, but did not know who it was, because no one was in the car with him. Moberg recognized the screaming woman as McDonough, and she said to defendant, "Ryan, that's my niece. It's Tanya." She asked defendant where they were, and she heard defendant tell McDonough that he was on the phone with Moberg. McDonough then started screaming Moberg's first name, and she screamed "Sean." Moberg testified that McDonough called her "Aunty Shell" and stated that "Shell and Sean sounded alike." Moberg asked defendant where they were, but defendant replied that he did not know. Moberg told defendant to get out of the car and go to the road so that she could find them. Moberg then drove around the area with Justin and Zachary, searching for the wreckage. At another point, Moberg and Rice "jumped on the four-wheeler" and spent "about an hour just going up and down [Route 12] trying to find them."

¶ 12 The State's exhibits showed that Moberg called defendant's phone seven more times, between 3:18 a.m. and 5:20 a.m. The 3:18 a.m. call lasted nine minutes, and the 5:20 a.m. call lasted four minutes. Moberg testified that, during one of the conversations, Justin took her phone and put defendant on speaker phone. Justin told defendant to turn on his GPS tracking on his phone and stated that they would call the police to ask them to determine defendant's location. Defendant said "okay" but then stated that the only thing he could see on his phone was pornography. At that point, Moberg wondered if the phone call was a joke, and she was unsure whether there had really been an accident. Moberg called the police and ceased her search between 3 a.m. and 4 a.m. because they searched everywhere they could think of. Moberg testified that she had no doubt that defendant was driving the Jeep when it crashed, because McDonough did not know how to drive. "She is afraid to. She would have never made it around the corner from the house." Several of McDonough's friends, including Courtney and Valez, testified that McDonough never drove, although Valez recalled a single occasion 11 or 12 years earlier when McDonough drove a car into town. Several witnesses also testified that McDonough did not have a driver's license but instead had only a state ID.

¶ 13 The State's exhibits also showed that Rice called defendant's cell phone eight times between 2:39 a.m. and 6:53 a.m. Rice testified that he called defendant because he wanted to determine where defendant and McDonough were and whether they were hurt. He tried to reach McDonough by calling her cell phone, but she did not answer. A call at 3:28 a.m. between Rice and defendant lasted for 19 minutes. During the call, defendant "said something about being in a ditch," but he kept "joking around like nothing was happening." Rice told defendant to turn on the GPS tracking on his phone, and defendant commented that he could look at pornography on his phone. Rice testified that defendant continued to joke around "like nothing was wrong." Rice warned defendant that he would...