People v. Lindmark

NO. 4-07-0535 Filed 4/3/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ERIKA M. LINDMARK, ) No. 06CF483
Defendant-Appellant. )
) Honorable
) Jeffrey Ford,
) Richard P. Klaus,
) Judges Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In January 2007, a jury found defendant, Erika M.

Lindmark, guilty of driving under the influence of alcohol (DUI)

while her driver's license was suspended (625 ILCS 11/501(a)(1)

(West 2006)) (count I) and driving with a suspended license (DWS)

(625 ILCS 5/6-303(a) (West 2006)) (count II). The trial court

later vacated count II. In March 2007, the court sentenced

defendant to 180 days in the Champaign County jail plus 30
months' probation on count I. Defendant appeals.

Although defendant raises several substantive arguments

on appeal, the inadequate record provided severely hampers this

court's review. For the reasons that follow, we affirm.

I. BACKGROUND

On March 1, 2006, defendant was arrested for DUI and

DWS. Following her arrest, defendant performed a breath test

showing she had a breath-alcohol concentration (BAC) of 0.167.

On March 22, 2006, the State charged defendant with
driving while her BAC was equal to or greater than 0.08 and while

her license to drive was suspended due to her prior violation of

section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625

ILCS 5/11-501(a)(1) (West 2006)). See 625 ILCS 5/11-501(c-1)(1)

(West 2006) (providing that driving under the influence while

one's license is suspended for, among other reasons, a violation

of section 11-501.1 of the Vehicle Code, constitutes a Class 4

felony). On January 5, 2007, the State charged defendant with

count II, DWS (625 ILCS 5/6-303(a) (West 2006)).

Defendant filed numerous pretrial motions. On January

17, 2007, the trial court held a hearing on the pending motions.

Only a partial transcript of the January 17, 2007, hearing is

contained in the record on appeal. An examination of the

pretrial motions relevant to this appeal follows.

A. Pretrial Motions

1. Motion To Suppress the Breath Test

In December 2006, defendant filed a motion to suppress

the breath test. The motion alleged that the protocol for the

operation of a breath test requires the operator observe the

subject for a 20-minute period to ensure the subject does not

regurgitate, burp, belch, or otherwise bring contents from the

stomach or esophagus into the mouth because that will produce an

inaccurate reading. Defendant claimed the results of her breath

test were invalid because the operator did not properly observe

defendant to ensure she did not bring stomach contents up into

her mouth.

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 At the January 17, 2007, hearing, defendant testified

that she suffered from acid reflux. Defendant claimed she burped

during the observation period. On cross-examination, defendant

admitted the officer asked her if she had any illness prior to

the breath test, and she did not tell him she had acid reflux.

Defendant testified she did tell the officer she was "sick

earlier that day."

The trial court viewed the videotape showing the

observation of defendant. The videotape, which was admitted into

evidence, is not contained in the record on appeal.

The court concluded the observation by the officer complied with

statutory and case-law requirements. The court noted that

defendant yawned, but the court saw nothing that implicated the

guidelines with respect to the breath test. The court denied the

motion to suppress the breath test.

2. Motion To Suppress Statements

In December 2006, defendant filed a motion requesting

the trial court suppress all statements made by defendant during

her custodial interrogation. In the motion, defendant alleged

that the officer failed to make an adequate determination that

defendant understood her Miranda rights (Miranda v. Arizona, 384

U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) and failed to

obtain a knowing and voluntary waiver of those rights.

At the January 17, 2007, hearing on the pretrial

motions, patrol sergeant Adam Chacon testified that on March 1,

2006, he stopped defendant's vehicle. After a DUI investigation,

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he placed defendant under arrest for DUI and transported her to

the satellite jail in Champaign County.

After defendant performed the breath test, Sergeant

Chacon used his Miranda card and read defendant the Miranda

warnings. Sergeant Chacon told defendant she could choose to

answer or not answer the questions. Defendant appeared to

understand what he was saying. Defendant told Sergeant Chacon

she was 25 years old, a high school graduate, and attended the

"University."

On cross-examination, Sergeant Chacon admitted it was

cold that evening, and defendant exhibited signs of being cold.

After defendant was arrested, Sergeant Chacon noticed defendant

was shivering.

Sergeant Chacon testified he gave defendant the

opportunity to waive her Miranda rights by asking her if she was

willing to discuss the matter further. The trial court admitted

into evidence People's exhibit No. 2, a videotape of the

interrogation. The parties' arguments were not transcribed and

the videotape is not contained in the record on appeal. The

following exchange took place during the hearing:

"Q. [(Defense counsel)]: All right. Did

you ever say to her--

THE COURT: You may resume your seat,

Officer.

Q. --are you willing to waive those

rights and talk to me?

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 A. No.

Q. You started asking her questions?

A. Yes.

* * *

Q. You never got her to say that she was

willing to waive the right to speak to you,

did you?

A. I didn't see it in that portion of

the video you showed.

Q. Do you want to see another portion?

A. I don't think that it's going to

assist me in any way. I said what was on the

video. I don't remember every word I said on

the video."

The trial court denied the motion to suppress statements.

3. The Horizontal Gaze Nystagmus Test

In December 2006, defendant filed a motion to suppress

the horizontal gaze nystagmus (HGN) test results. Defendant

alleged the results must be excluded because the officer did not

conduct the HGN test as required by this court's decision in

People v. Kirk, 289 Ill. App. 3d 326, 681 N.E.2d 1073 (1997). In

January 2007, defendant also filed a fifth motion in limine

seeking to bar the State from introducing evidence regarding the

results of the HGN test unless the State first established the

reliability of the test at a Frye hearing (Frye v. United States,

293 F. 1013, 1014 (D.C. Cir. 1923)(addressing the standards for

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permitting evidence of a scientific test)).

At the January 17, 2007, hearing on posttrial motions,

the trial court asked the State whether it intended to introduce

evidence regarding the HGN test at trial. The assistant State's

Attorney responded, "No, Your Honor." The court stated, "I would

take that to mean that you would simply agree to the motion."

The transcript then reads, "Proceedings not transcribed herein."

The court then stated on the record:

"Well, I wouldn't necessarily have

procedurally couched it that way, [defense

counsel], but the State will be barred from

eliciting or introducing into evidence any

evidence regarding the HGN test. The motion

to suppress the HGN test is moot. The fifth

motion in limine is granted in part and

denied in part. The law does not require me

to--or require the State to have a Frye

hearing. The State can seek a Frye hearing.

The State does not seek a Frye hearing. I

will not order a Frye hearing. However, I

will grant that portion of the fifth motion

in limine which seeks to bar an HGN test,

because absent a Frye hearing, there can be

no entry into evidence of an HGN test. All

right, that resolves those motions."

In response to the trial court, defense counsel argued

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the HGN test remained an issue because it was the basis for the

officer's probable cause for arrest. The transcript contains the

following:

"MR. ROBERTS [(Defense counsel)]: Not

quite, because the HGN test was the basis for

the officer's probable cause for arrest.

THE COURT: Well that resolves those

motions. Then we'll address the issue of

whether or not there was probable cause for

the arrest in the other motions. All right.

(Proceedings conducted which are not

transcribed herein.)"

The record is unclear whether the trial court proceeded

to address probable cause. However, on January 18, 2007, the day

following the hearing and the day of trial, defendant filed a

motion to "quash arrest" and suppress evidence. The motion

asserted that absent a showing that the HGN test has scientific

validity, it could not be reasonably relied on in making a

determination of probable cause. Defendant argued that without

probable cause, her arrest was illegal and all evidence that

flowed from the arrest must be suppressed.

Also on January 18, 2007, the State filed a motion to

strike defendant's motion to "quash arrest" and suppress. The

State argued that defendant's motion was untimely because it was

filed more than 35 days after the discovery order was entered and

no just cause existed why the motion could not have been filed in

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a timely manner.

The trial court held a hearing on the matter that same

day. The State argued that the circuit court rules required all

motions be filed within 35 days of the discovery order. The

State claimed the defendant was attempting to delay the trial.

Defense counsel noted that the previous day, the State

indicated it would not offer HGN evidence at trial. Defense

counsel argued that this concession did not resolve the issue of

a Frye hearing because the officer used the HGN test as a basis

for probable cause for the arrest. Defense counsel argued that

because the HGN test was not admissible at trial without a Frye

hearing, it could not be used to determine probable cause.

The trial court noted multiple problems with the motion

to suppress, not the least of which was lack of timeliness. The

court observed that defendant's motion "presupposes that the

[HGN] test was the only basis for probable cause, which ignores

the substantial amount of other material." The court found

defense counsel had ample opportunity to address the matter in

pretrial, and that the late-filed motion violated the court's

standing order. The court ordered the motion to suppress

stricken.

4. Bill of Particulars

On January 9, 2007, four days after the State charged

defendant with count II, defendant filed a motion for a bill of

particulars. Defendant sought particulars regarding the offenses

defendant was alleged to have committed, including the date,

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time, location, persons present who witnessed the alleged

offenses, and the length of time the alleged conduct continued.

At the hearing on pretrial motions, the trial court

noted that the arraignment occurred on June 1, 2006, and the

State provided defendant with discovery on June 6, 2006. The

court asked how the January 9, 2007, filing could be considered

filed within a reasonable period of time after the arraignment.

The transcript of the hearing does not contain defense counsel's

response. The court denied the motion for a bill of particulars.

B. The Trial

On January 18, 2007, the jury trial commenced.

Sergeant Chacon testified he had been employed with the Urbana

police department for nearly 13 years. He had received

specialized training on how to investigate DUI cases and had been

involved in 100 to 150 DUI investigations.

On March 1, 2006, at approximately 12:55 a.m., Sergeant

Chacon saw a black, four-door Saab turn left on University

Avenue, a well-lit intersection. Sergeant Chacon saw the vehicle

strike the raised median of the roadway with all four tires.

Sergeant Chacon effectuated a traffic stop. He

identified defendant as the driver of the vehicle. Defendant was

wearing a lot of brightly colored beads around her neck.

Sergeant Chacon testified the stop occurred around Mardi Gras and

a lot of bars gave out beads. Sergeant Chacon further testified

that an odor of alcohol emitted from the open driver's window.

Defendant's eyes were watery and red, and her speech was "rather

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slowed and slight[ly] slurred." Defendant told him she had three

alcoholic drinks that evening.

Sergeant Chacon asked defendant for her driver's

license and proof of insurance. He returned to his car to

confirm defendant's driver's license status and check for

outstanding warrants. In doing so, Sergeant Chacon learned

defendant's license was suspended.

The trial court admitted, without objection,

defendant's driver's license abstract from the Secretary of State

(exhibit No. 4). Sergeant Chacon testified that the abstract

reflected that on March 1, 2006, the status of defendant's

driver's license was "suspended." Exhibit No. 4 is not contained

in the record on appeal, although a blurry copy of the abstract

is contained in the record as part of the State's discovery.

Sergeant Chacon called for an additional unit. Officer

Chris Darr arrived. Sergeant Chacon asked Officer Darr to

videotape the ensuing investigation.

Sergeant Chacon asked defendant to perform certain

preexit tests that can be performed while sitting in the vehicle.

According to Sergeant Chacon, preexit tests are good indicators

of whether a person is impaired. Sergeant Chacon described the

various preexit tests and defendant's performance on those tests.

The three tests included the alphabet test (reciting the alphabet

from a specific starting point to a specific ending point), the

countdown test (counting backward from a particular number to

another), and the finger-count test (use the thumb to touch the

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tip of each finger in a sequence while counting out loud). Based

on defendant's performance on the three pre-exit tests, Sergeant

Chacon felt further investigation warranted and asked defendant

to step out of her vehicle.

Sergeant Chacon testified the outside temperature was

in the mid-40s. Defendant was wearing a "pretty substantial"

leather coat and appeared to be dressed warmly for the weather.

Sergeant Chacon testified about the field-sobriety

tests he asked defendant to perform, including the one-legged-

stand test and the walk-and-turn test.

Sergeant Chacon identified People's exhibit No. 3 as a

copy of the videotape of the field testing. The State moved to

admit the videotape into evidence. Defense counsel did not

object to admission of the videotape or publication of the tape

to the jury. A portion of the videotape was played for the jury.

The videotape is not contained in the record on appeal.

Sergeant Chacon testified that based on the total

circumstances and information gathered, including defendant's

driving behavior, beads, demeanor, speech pattern, the odor of

alcohol, her acknowledgment that she had been drinking, and

defendant's performance on pre-exit and field tasks, he believed

defendant was impaired by alcohol. Sergeant Chacon placed

defendant under arrest.

After defendant's arrest, Officer Darr transported her

to the Champaign County satellite jail. Sergeant Chacon later

joined her there.

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 Defendant ultimately took a breath test. Sergeant

Chacon testified he was certified to operate the Breathalyzer and

conduct the breath test, the breath test was a model approved by

the Department of State Police, and he followed the standards for

administering it. Sergeant Chacon identified, and the trial

court admitted, (1) the breath-instrument log that showed defen-

dant's result and the certification of accuracy performed on the

machine and (2) the document showing defendant's breath-test

result.

Sergeant Chacon observed defendant for 20 minutes to

allow any alcohol that might still be in her mouth or upper

digestive tract to either be absorbed, metabolized, or dissipated

so that the result would only reflect the alcohol from defen-

dant's breath. During the observation period, defendant did not

eat, drink, smoke, or put a foreign substance in her mouth.

Defendant did not vomit during the observation period.

After the observation period, defendant performed the

breath test. The results indicated a BAC of 0.167. The State

sought and received permission to play the remainder of the

videotape, apparently showing what occurred before and during the

breath test.

On cross-examination, defense counsel played portions

of defendant's exhibit No. 1. That exhibit is not contained in

the record on appeal. Based on the comments made at trial,

defendant's exhibit No. 1 was apparently a digital video disc

(DVD) containing excerpts of the video recording of defendant's

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pre-exit and field-sobriety tests.

After watching a portion of the DVD, Sergeant Chacon

agreed defendant performed some aspects of the tests correctly.

Defense counsel questioned Sergeant Chacon about a comment he

made on the tape about not being "totally convinced." Sergeant

Chacon testified he was not convinced at that point that defen-

dant was not impaired by alcohol. Defense counsel also noted

that after defendant finished walking for one of the tests,

Sergeant Chacon said, "[V]ery good." Defense counsel asked

whether Sergeant Chacon thought defendant's performance on the

test was "very good." Sergeant Chacon responded, "That's not

what I meant by very good, sir."

Sergeant Chacon admitted defendant exhibited signs of

being cold. She was still rubbing herself at the jail trying to

warm herself. Sergeant Chacon agreed defendant was never combat-

ive and was always cooperative. Sergeant Chacon testified the

behavior of people under the influence runs the gamut of polite

to combative. Sergeant Chacon described defendant's speech as

showing slight to moderate slurring.

Defense counsel questioned Sergeant Chacon about the

breath test. Sergeant Chacon testified the purpose of the 20-

minute observation period was to allow any alcohol that might

still be in the mouth to evaporate or be absorbed so that it does

not interfere with the test reading. Defense counsel asked

whether the observation included observing whether the subject

regurgitated. Sergeant Chacon stated, "Well, if you mean vomit-

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ing, yes." Sergeant Chacon agreed that by vomiting, he meant

material is expelled out of the mouth. Sergeant Chacon also

agreed that the reason he observes for vomiting is because if

material comes up in the mouth from the stomach and has alcohol

in it, that would affect the test result.

Defense counsel asked whether, once the material got

into the mouth, it mattered if it was vomited out or swallowed.

The State objected on the basis that the line of questioning was

irrelevant to what the jury would be asked to determine at the

end of the trial. The court sustained the objection.

Defense counsel questioned Sergeant Chacon about the

observation period, apparently while that portion of the video-

tape was playing. Defense counsel asked Sergeant Chacon what he

was doing at various times during the observation period. At one

point, in response to defense counsel's question, Sergeant Chacon

stated that the videotape showed defendant put her face in her

hands. Defense counsel asked whether anything was coming up from

defendant's stomach when she put her face in her hands. The

State objected, and the court sustained the objection. After the

completion of Sergeant Chacon's testimony, the State rested.

On January 19, 2007, the trial resumed. That same day,

the State filed a motion in limine seeking an order barring

defense counsel from inquiring into or referring to matters

relating to defendant's alleged acid-reflux symptoms, the effect

such symptoms may have on the breath test, the alleged failure of

Sergeant Chacon to properly observe defendant prior to the breath

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test, or the effect such alleged failure may have had upon the

breath test results.

The State argued that whether Sergeant Chacon conducted

a proper observation was an issue of foundation as to the admis-

sibility of the breath test and was previously adjudicated by the

court. The State also argued that defendant's alleged acid

reflux was not relevant to any issue the jury would be asked to

decide. Finally, the State argued that defendant did not dis-

close any expert witnesses, and the issue of whether acid reflex

would affect the breath test was a subject that required expert

testimony.

At the hearing on the motion, defense counsel argued

that admissibility and weight were separate questions. Defense

counsel agreed the breath test was admissible because the State

met the foundation requirements: the machine had been tested at

appropriate times before and after defendant's test, the machine

was certified, the officer did a blank check before defendant's

test, the officer was in the room with defendant for 20 minutes

before the test, defendant blew in the machine, and a reading was

produced. Defense counsel argued, however, that the weight to

give the test was for the jury, and the jury did not have to find

the testing credible.

The trial court found that defense counsel was attempt-

ing to show that defendant had acid-reflux syndrome, suffered

from it in the observation room, and that acid reflux could

affect the breath-test results. The court asked defense counsel

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how defendant would present competent evidence on that subject.

Defense counsel argued Sergeant Chacon testified about

the importance of not having stomach contents enter the mouth.

Defense counsel further argued that whether Sergeant Chacon's

observation was adequate to determine whether anything came up

out of defendant's stomach was an issue of credibility for the

jury. The trial court barred defendant from any further refer-

ence to acid-reflux disease or the efficacy of the observation

period.

Defense counsel then moved for a directed verdict on

both counts, arguing the State presented no evidence that defen-

dant knew her license was suspended. Therefore, defense counsel

argued, the State failed to prove the requisite mental state.

The trial court denied the motion.

The defense rested without presenting evidence.

Defense counsel sought clarification on the trial court's earlier

ruling barring defendant from any reference to acid-reflux

disease or the efficacy of the observation period. Defense

counsel inquired whether he could (1) tell the jury that it

determines the weight to give the evidence, (2) talk to the jury

about the credibility of the evidence, (3) talk to the jury about

the officer's testimony regarding the purpose of the observation

period, and (4) comment on what was in evidence regarding

factors that interfere with testing. The court confirmed that

such comments were permissible. The court further confirmed that

defense counsel could not comment on whether Sergeant Chacon was

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doing an adequate job of making sure that factors that interfere

with testing did not occur.

The jury-instruction conference, closing argument, and

return of the jury verdict are not contained in the transcript in

the record on appeal. The record suggests that defense counsel

sought an instruction that the State had to prove defendant had

notice that her license was suspended. The trial court appar-

ently rejected that instruction.

The January 19, 2007, docket entry reflects the jury

found defendant guilty on both counts.

C. Postrial and Sentencing Motions

On February 20, 2007, defendant filed a motion for a

new trial. Among other things, defendant argued the trial court

erred by (1) denying the fifth motion in limine; (2) denying the

motion to suppress statements; (3) denying the motion to suppress

the HGN test and not allow a Frye hearing; (4) denying the

request for a bill of particulars; (5) denying the motion to

suppress the breath test; (6) granting the State's motion to

strike defendant's motion to suppress for lack of probable cause,

denying defendant a hearing on the motion to suppress, and not

granting the motion to suppress; (7) failing to instruct the jury

that the State had to prove defendant had notice that her license

was suspended; (8) allowing the State's motion in limine with

respect to closing argument and limiting defendant's closing

argument by (a) restricting comment on the quality of the offi-

cer's observation of the defendant, and (b) limiting comment on

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what the Breathalyzer was measuring if any stomach contents were

brought up into defendant's mouth during the 20-minute observa-

tion period.

On that same date, defendant also filed motions to

vacate her convictions on count I and count II. Defendant

asserted that count II must be vacated because both convictions

were based on the same conduct. Defendant asserted that count I

should be vacated because the jury made no finding that defen-

dant's license was suspended for a violation of section 11-501.1

of the Vehicle Code (statutory summary suspension).

On March 28, 2007, the trial court held a hearing on

defendant's posttrial motions and the sentencing. The record on

appeal does not contain a transcript of that hearing. The March

28, 2007, docket entry reflects that the court denied the motion

to vacate count I but granted the motion to vacate count II. The

court sentenced defendant to incarceration in the county jail for

180 days plus 30 months' probation on count I.

On April 3, 2007, defendant filed a motion to modify

her sentence. Defendant requested the trial court modify her

sentence to provide that the period of imprisonment be served in

the Comprehensive Home-Incarceration Program (CHIP).

On April 9, 2007, the trial court held a hearing on

defendant's motion to modify sentence. At the hearing, Rolla

Dolph, the courtroom deputy assigned to the courtroom when

defendant was sentenced, testified. Dolph testified he saw

defendant give her counsel some keys and heard her tell counsel

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one of the keys belonged to the car in the lot that had to be

moved.

Defense counsel questioned the trial court about

whether he could continue to act as defendant's counsel because

he would have to testify to rebut Dolph's testimony. The court

believed counsel could testify without being disqualified so long

as he was not testifying against his client's interests. The

court agreed to accept counsel's representations or counsel could

testify under oath and be subject to cross-examination.

Defense counsel informed the court that he drove

defendant to court for sentencing. Defendant asked counsel to

give her keys to a man named "Sam," and that Sam would take care

of her animals. Defendant said nothing to counsel about moving a

car. The trial judge took the matter under advisement and

indicated a ruling would be made within 24 hours.

The record does not contain a ruling or docket entry on

defendant's motion to modify sentence. However, on April 20,

2007, defendant filed a motion to vacate an April 11, 2007, order

denying defendant's motion to modify sentence and also asked the

trial judge, Richard Klaus, to recuse himself and refer the case

for reassignment. In particular, defendant noted that once

Dolph's testimony was rebutted by defense counsel, Judge Klaus

had to judge the credibility of someone who worked under his

direct supervision. Defendant also argued she was denied effec-

tive assistance of counsel when defense counsel could not argue

for his own credibility.

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 On April 30, 2007, defendant filed a motion to recon-

sider sentence. The motion asserted the sentence was excessive.

This motion was arguably untimely because it was filed more than

30 days after sentencing. The record does not contain any

indication that the parties or the trial court ever mentioned the

late filing.

On May 16, 2007, Judge Thomas Difanis held a hearing on

defendant's motion to vacate the order and for recusal. Only a

portion of the hearing is contained in the record on appeal.

Judge Difanis granted the motion for recusal and assigned another

judge to hear the motion to reconsider sentence.

On May 24, 2007, the newly assigned judge, Judge

Jeffrey Ford, held a hearing on defendant's motion to reconsider

sentence. Defense counsel argued the grounds raised in both the

motion to modify sentence and the motion to reconsider sentence.

The court denied the motions.

This appeal followed.

II. ANALYSIS

A. This Court Has Jurisdiction Over the Appeal

Before addressing the merits, this court must first

ensure that it has jurisdiction over the appeal. In its appellee

brief, the State notes that while the April 3, 2007,

postsentencing motion was timely, the April 30, 2007, motion to

reconsider was not. The State further notes it is debatable

whether defendant's April 20, 2007, motion to vacate the April

11, 2007, order denying the motion to modify sentence was a

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motion directed against the March 28, 2007, judgment. Therefore,

according to the State, it is unclear whether the motion to

vacate extended defendant's time to file a notice of appeal.

However, the State argues that under the revestment doctrine, an

argument can be made that the parties revested the trial court

with jurisdiction over the April 30, 2007, motion to reconsider.

Pursuant to Supreme Court Rule 606(b), a defendant must

file a notice of appeal within 30 days after entry of judgment

or, if a postjudgment motion is timely filed, within 30 days of

the order disposing of that motion. 210 Ill. 2d R. 606(b).

Moreover, "[a] trial court loses jurisdiction to vacate or modify

its judgment 30 days after entry of the judgment unless a timely

postjudgment motion is filed." People v. Minniti, 373 Ill. App.

3d 55, 65, 867 N.E.2d 1237, 1246 (2007).

In this case, the trial court entered the final judg-

ment on March 28, 2007, when it sentenced defendant. Therefore,

any postjudgment motion had to be filed by April 27, 2007.

Defendant filed a timely postjudgment motion on April 9, 2007,

and an untimely motion on April 30, 2007.

Based on defendant's April 20, 2007, motion, the trial

court apparently denied the April 9, 2007, motion to modify

sentence on April 11, 2007. However, a reasonable conclusion can

be drawn from the record that the April 11, 2007, order denying

the April 9, 2007, motion to modify sentence was vacated when

Judge Difanis granted defendant's April 20, 2007, motion to

recuse Judge Klaus. By vacating the April 11, 2007, order, the

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timely April 9, 2007, motion to modify remained pending. In

fact, defense counsel, without objection, argued at the May 24,

2007, hearing on the postjudgment motions the issues raised in

both the timely and untimely postjudgment motions.

Because the April 9, 2007, motion remained pending, the

May 24, 2007, order denying the untimely April 30, 2007, motion

to reconsider can be construed as also denying the April 9, 2007,

pending motion to modify. Consequently, the notice of appeal

filed within 30 days of the May 24, 2007, order was timely, and

this court has jurisdiction.

Alternatively, this court finds the parties revested

the trial court with jurisdiction to consider the untimely motion

to reconsider. Under the revestment doctrine, the parties can

revest a court with jurisdiction so long as (1) the court has

general jurisdiction over the matter and personal and subject-

matter jurisdiction over the particular cause; (2) the parties

actively participate without objection; and (3) the proceedings

are inconsistent with the merits of the prior judgment. Minniti,

373 Ill. App. 3d at 65, 867 N.E.2d at 1246. If a trial court is

revested with jurisdiction, then a notice of appeal filed within

30 days after a ruling on the untimely postjudgment motion vests

the appellate court with jurisdiction. Minniti, 373 Ill. App. 3d

at 67, 867 N.E.2d at 1248.

Those factors are present here. The trial court had

general jurisdiction over the matter, as well as personal and

subject-matter jurisdiction over the case. The parties actively

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participated in the hearing on the motion to reconsider without

objection. Finally, the motion to reconsider hearing was incon-

sistent with the prior judgment. That is, by participating and

not objecting to the hearing on the motion to reconsider the

sentence, the prosecutor essentially acknowledged that the prior

sentencing judgment should be revisited. See Minniti, 373 Ill.

App. 3d at 67, 867 N.E.2d at 1248, citing People v. Gargani, 371

Ill. App. 3d 729, 732, 863 N.E.2d 762, 766 (2007). Therefore,

the parties revested the trial court with jurisdiction, and this

court has jurisdiction over the appeal.

B. State Not Required To Prove Defendant
Knew Her License Was Suspended

Defendant argues, citing Morissette v. United States,

342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952), that a culpa-

ble mental state is a necessary element of a felony or any

offense with a significant penalty. As such, defendant argues,

the State was required to prove that defendant had knowledge that

her license was suspended when she drove on March 1, 2006. We

disagree.

In Morissette, the defendant was charged with a federal

crime, theft from government land. Morissette, 342 U.S. at 248,

96 L. Ed. at 292, 72 S. Ct. at 242. The statute in question did

not provide a requisite mental state. The United States Supreme

Court reversed the defendant's conviction. The Court found that

the federal law merely adopted a crime defined at common law

which, at common law, required a mental state. Morissette, 342

U.S. at 260-61, 96 L. Ed. at 299, 72 S. Ct. at 248-49. There-

- 23 -
fore, the Court held that the absence of a mental state from the

statute would not be construed as eliminating the mental state

required. Morissette, 342 U.S. at 261-62, 96 L. Ed. at 299-300,

72 S. Ct. at 249. Nothing in the Morissette decision can be

construed as requiring a mental state in all felonies. In fact,

the Morissette Court specifically declined to "delineate a

precise line or set forth comprehensive criteria for distinguish-

ing between crimes that require a mental element and crimes that

do not." Morissette, 342 U.S. at 260, 96 L. Ed. at 299, 72 S.

Ct. at 248; see also Staples v. United States, 511 U.S. 600, 618-

19, 128 L. Ed. 2d 608, 624, 114 S. Ct. 1793, 1804 (1994) (refus-

ing to adopt a rule that the public-welfare-offense rationale

should not be used to interpret any statute defining a felony

offense as dispensing of a mens rea requirement unless Congress

specifically provides that the offense is a strict-liability

offense; but noting that where dispensing with a mens rea would

require the defendant to have knowledge only of traditionally

lawful conduct and where a penalty is severe, such factors

suggest Congress does not intend to eliminate a mens rea require-

ment).

Whether an offense requires proof of a mental state

depends on whether the offense is a misdemeanor or whether the

legislature clearly indicated the intent to impose absolute

liability for the conduct. 720 ILCS 5/4-9 (West 2006). Specifi-

cally, section 4-9 of the Criminal Code of 1961 provides as

follows:

- 24 -
 "A person may be guilty of an offense

without having, as to each element thereof,

one of the mental states described in

[s]ections 4-4 through 4-7 if the offense is

a misdemeanor which is not punishable by

incarceration or by a fine exceeding $500, or

the statute defining the offense clearly

indicates a legislative purpose to impose

absolute liability for the conduct

described." 720 ILCS 5/4-9 (West 2006).

"Section 4-9 applies to all criminal penalty provisions, includ-

ing those outside the Criminal Code of 1961." People v. Molnar,

222 Ill. 2d 495, 519, 857 N.E.2d 209, 223 (2006).

1. Standard of Review

Because the issue defendant raises requires an inter-

pretation of the relevant statutes, this court reviews the issue

de novo. People v. Dunn, 365 Ill. App. 3d 292, 294, 849 N.E.2d

148, 149 (2006). When construing a statute, the primary consid-

eration is to determine and give effect to the legislature's

intent. People v. Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d

117, 122 (2005). A court must consider the statute in its

entirety. People v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641,

644 (2002). "The most reliable indicator of legislative intent

is the language of the statute, which, if plain and unambiguous,

must be read without exception, limitation, or other condition."

Davis, 199 Ill. 2d at 135, 766 N.E.2d at 644. A statute will not

- 25 -
be interpreted as imposing absolute liability without a clear

indication the legislature intended absolute liability or unless

an important public policy favors absolute liability. Molnar,

222 Ill. 2d at 519, 857 N.E.2d at 223.

2. Plain Language Indicates The Legislature Intended No Mental
State for DUI With a Suspended License

In this case, the State charged defendant with violat-

ing section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11-

501(a)(1) (West 2006)), which provides that a person shall not

drive while under the influence of alcohol. Generally, such

offense is a misdemeanor. See 625 ILCS 5/11-501(b-2) (West

2006). In this case, however, the offense was elevated to a

Class 4 felony because defendant's license was suspended at the

time. Section 11-501(c-1)(1) of the Vehicle Code provides as

follows:

"A person who violates subsection (a)

during a period in which his or her driving

privileges are revoked or suspended, where

the revocation or suspension was for a viola-

tion of subsection (a), [s]ection 11-501.1,

paragraph (b) of Section 11-401, or for reck-

less homicide as defined in [s]ection 9-3 of

the Criminal Code of 1961 is guilty of a

Class 4 felony." 625 ILCS 5/11-501(c-1)(1)

(West 2006).

The statute does not contain a mental state. This fact

alone does not per se indicate that no mental state is required.

- 26 -
Molnar, 222 Ill. 2d at 519, 857 N.E.2d at 223 (finding that

section 10 of the Sex Offender Registration Act creates a abso-

lute liability offense). However, given the statute's plain

language, the purpose behind the legislation, and the existing

case law, this court concludes that section 11-501(c-1)(1) does

not require proof of a mental state.

The purpose of the DUI statute is to protect people who

walk and drive on the public way. People v. Avery, 277 Ill. App.

3d 824, 830, 661 N.E.2d 361, 365 (1995). In People v. Ziltz, 98

Ill. 2d 38, 42, 455 N.E.2d 70, 72 (1983), the Illinois Supreme

Court held that section 11-501(a)(1) of the Vehicle Code clearly

imposed strict liability and did not require a mental state. The

court found that "[t]he State has a rational basis for curbing

the incidence of drunk driving." Ziltz, 98 Ill. 2d at 43, 455

N.E.2d at 72.

The question here is whether the aggravating factor

that elevated the offense from a misdemeanor to a Class 4 felony

is evidence of the legislature's intent to require a mental

state. In a similar case, Avery, 277 Ill. App. 3d 824, 661

N.E.2d 361, the court concluded that a similar enhancement did

not indicate such an intent.

In Avery, the defendant was charged with DUI. The

offense was elevated from a misdemeanor offense to a felony

because the defendant was involved in a motor vehicle accident

that resulted in great bodily harm. Avery, 277 Ill. App. 3d at

828, 661 N.E.2d at 364. In determining whether the trial court

- 27 -
properly refused to entertain an insanity defense, the Avery

court concluded that the addition of the aggravating factors--

involvement in a motor-vehicle accident--did not signal an intent

by the legislature to add a mental state to the offense. Avery,

277 Ill. App. 3d at 830, 661 N.E.2d at 365. The court concluded

that the essential crime remained the same, and the evil the

statute intended to remedy remained the same. Avery, 277 Ill.

App. 3d at 830, 661 N.E.2d at 365.

Similarly, the factor in this case that caused the

offense to elevate from a misdemeanor into a Class 4 felony--DWS

--does not change the essential crime. Moreover, the evil the

statute intended to remedy remained the same.

In addition, a conviction for DWS does not require

proof of the defendant's receipt of notice or knowledge of the

suspension. See People v. Johnson, 170 Ill. App. 3d 828, 832,

525 N.E.2d 546, 550 (1988). Because no mental state is required

for DWS or DUI, it follows that no mental state is required for

DUI with the aggravating factor that the driver's driving privi-

leges were suspended. The State was not required to prove that

defendant knew her license was suspended.

C. Failure To Instruct Jury To Find that Defendant's
License Was Suspended Due to Her Prior Violation
of Section 11-501.1 Was Harmless Error

Defendant next argues that the jury was not instructed

to find that defendant's license was suspended due to a statutory

summary suspension. The State concedes that under Apprendi v.

New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct.

- 28 -
2348, 2362-63 (2000), any fact other than a prior conviction

"that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt." The State further concedes that a statutory

summary suspension is not a conviction and that the grounds for

defendant's suspension increased the penalty beyond the pre-

scribed statutory maximum. See People v. Dvorak, 276 Ill. App.

3d 544, 552, 658 N.E.2d 869, 876-77 (1995) (a statutory summary

suspension proceeding is civil in nature and its purpose is not

to convict the defendant of an offense). Therefore, the State

agrees with defendant that the issue should have been submitted

to the jury.

The State argues, however, that a jury instruction that

omits an element of the offense is an error subject to the

harmless-error analysis. The State further argues that the error

here was harmless because the evidence concerning the grounds for

defendant's license suspension was uncontested and overwhelming.

We agree.

A jury instruction that omits an element of an offense

is an error subject to harmless-error review. Neder v. United

States, 527 U.S. 1, 15, 144 L. Ed. 2d 35, 51, 119 S. Ct. 1827,

1837 (1999); People v. Thurow, 203 Ill. 2d 352, 368, 786 N.E.2d

1019, 1028 (2003) (finding that the failure to instruct the jury

as to the element of the crime that the victim was a member of

defendant's household was harmless error). Omitting an element

of the offense from a jury instruction is harmless if the review-

- 29 -
ing court determines, beyond a reasonable doubt, that the error

did not contribute to the verdict. Neder, 527 U.S. at 15, 144 L.

Ed. 2d at 51, 199 S. Ct. at 1837. This can be shown where the

omitted element was uncontested and supported by overwhelming

evidence. Thurow, 203 Ill. 2d at 369, 786 N.E.2d at 1028.

Here, overwhelming evidence supports the conclusion

that defendant's license was suspended due to a statutory summary

suspension. The record contains an undated stipulation signed by

counsel for defendant and the State. However, the record is

incomplete regarding the use of this stipulation. The appellant

has the burden to present a sufficient record and doubts are

resolved against the appellant. See People v. Kamide, 254 Ill.

App. 3d 67, 74, 626 N.E.2d 337, 342 (1993) (holding that without

a sufficient record to reflect the evidence on the missing

element of the charge, the court was unable to determine whether

overwhelming evidence existed and therefore resolved those doubts

against the defendant). Defendant did not provide this court

with an adequate record. Therefore, this court resolves any

doubts against defendant and concludes that the stipulation was

used at trial.

The stipulation provided that defendant "received a

traffic citation for DUI in DuPage County on January 8, 2006."

The stipulation also provided that defendant's "statutory summary

suspension based upon the DUI in DuPage County began on February

23, 2006." This, along with the other evidence admitted at

trial, demonstrates that on March 1, 2006 (five days after the

- 30 -
suspension began), defendant was DWS pursuant to a statutory

summary suspension. Notably, the trial court admitted into

evidence, without objection, defendant's driver's license ab-

stract from the Secretary of State. Sergeant Chacon testified he

checked the status of defendant's driver's license and learned it

was suspended. This evidence demonstrates beyond a reasonable

doubt that defendant's license was suspended due to a statutory

summary suspension. As such, the failure to instruct the jury on

the this element was harmless error.

Alternatively, this court also finds the record sup-

ports the conclusion that defendant affirmatively chose not to

submit this issue to the jury. The stipulation supports that

conclusion. In addition, the statement of the nature of the

case, to which defendant did not object, provided that in count

I, defendant was charged with committing DUI, and in count II,

defendant was charged with DWS. The statement of the case says

nothing about a requirement that the jury find, on count I, that

defendant's license was suspended due to a prior statutory

summary suspension.

Moreover, it appears defendant did not tender an

instruction on count II requesting that the jury find that her

license had been suspended for a prior statutory summary suspen-

sion. The only instruction defendant submitted on the issue was

one requesting that the jury find that defendant had notice of

her suspension. The trial court denied that request. Based on

the record, defense counsel appears to have made a tactical

- 31 -
decision to stipulate to her prior suspension. She cannot now be

heard to complain.

As a final note on this issue, this court notes that--

insofar as the record on appeal shows--the jury instructions in

this case were not marked as "given" or "refused." Section 2-

1107 of the Code of Civil Procedure requires the court mark all

instructions "refused" or "given" and maintain all originals and

copies of the instructions, whether given, modified or refused,

in the record of the proceedings. 735 ILCS 5/2-1107(a),(b) (West

2006). Doing so in this case would have been extremely helpful

to this court's review.

D. Trial Court Did Not Err by Denying Defendant
a Hearing on Her Motion To Suppress Evidence
for Lack of Probable Cause To Arrest

Defendant argues the trial court erred by granting the

State's motion to strike and denying her a hearing on her motion

to suppress evidence for lack of probable cause for the arrest.

Specifically, defendant argues that absent a Frye hearing to

establish the scientific validity of the HGN test, the HGN test

could not be used by the officers to determine probable cause.

Defendant asserts that an arrest made, at least in part, on

probable cause derived from an HGN test is invalid. As such,

defendant asserts that the arrest must be "quashed" and the

evidence flowing from that arrest, including the breath test,

must be suppressed.

The trial court has the authority to control its own

docket and require compliance with its procedural rules. People

- 32 -
v. Garcia, 312 Ill. App. 3d 422, 423, 727 N.E.2d 683, 685 (2000).

This court will not reverse the court's order granting the motion

to strike absent an abuse of that discretion. See, e.g.,

Garcia, 312 Ill. App. 3d 423, 727 N.E.2d at 685.

The Illinois Supreme Court has recently held that

before the results of an HGN test can be admitted into evidence

at trial, HGN testing must meet the Frye standard. People v.

McKown, 226 Ill. 2d 245, 258, 875 N.E.2d 1029, 1037 (2007)

(remanding the cause to the trial court for a Frye hearing to

determine whether the HGN test as been generally accepted as a

reliable indicator of alcohol impairment). However, this court

need not decide whether probable cause can be based on an HGN

test absent a Frye hearing because the record demonstrates

sufficient evidence separate and apart from the HGN test sup-

ported probable cause. See, e.g., Kirk, 289 Ill. App. 3d at 334,

681 N.E.2d at 1078-79 (finding admission of HGN test at trial

without a Frye hearing was harmless in light of the other evi-

dence of the defendant's guilt).

In this case, the trial court did not abuse its discre-

tion by granting the State's motion to strike because the record

demonstrates sufficient probable cause supported defendant's

arrest. Probable cause to arrest exists when the totality of

facts and circumstances within the officer's knowledge would lead

a person of reasonable caution to believe that an offense has

been committed and that the person apprehended has committed the

offense. People v. Gray, 305 Ill. App. 3d 835, 838, 713 N.E.2d

- 33 -
781, 783 (1999). In assessing the existence of probable cause,

an objective inquiry into the police officer's conduct is used.

People v. Smith, 156 Ill. App. 3d 596, 600, 509 N.E.2d 1345, 1348

(1987).

Here, Sergeant Chacon testified he observed defendant's

car turn and strike a raised median with all four tires. Defen-

dant was wearing several colored beads, beads Sergeant Chacon

knew the bars gave out around Mardi Gras. Sergeant Chacon

described defendant's eyes as being watery and red and her speech

as slightly slurred. Defendant admitted having had three drinks.

An odor of alcohol emanated from the open window of defendant's

car. Sergeant Chacon had defendant perform preexit and field-

sobriety tests from which he concluded defendant was impaired by

alcohol. As such, sufficient evidence of probable cause was

shown. See, e.g., People v. Brodeur, 189 Ill. App. 3d 936, 941,

545 N.E.2d 1053, 1056 (1989) (finding probable cause where the

offer testified the driver had bloodshot eyes, slurred speech, a

strong odor of alcohol on the breath, and had been in a motor-

vehicle accident); People v. Cortez, 361 Ill. App. 3d 456, 464,

837 N.E.2d 449, 457 (2005) (odor of alcohol on the defendant's

breath, the defendant's slurred speech, swaying, bloodshot eyes,

and admission to drinking supported finding of probable cause for

arrest for DUI).

E. Trial Court Did Not Abuse Its Discretion by Limiting
Defendant's Cross-Examination and Argument
on the Reliability of the Breath Test

Defendant next argues the trial court erred by limiting

- 34 -
her cross-examination and closing argument regarding the reli-

ability of the breath test as it was administered in this case.

1. Standard of Review

This court reviews a trial court's evidentiary rulings

for an abuse of discretion. People v. Britt, 265 Ill. App. 3d

129, 146, 638 N.E.2d 282, 294 (1994) (the trial court has the

discretion to limit the scope of cross-examination and such

ruling will not be reversed absent an abuse of discretion);

People v. Millighan, 265 Ill. App. 3d 967, 974, 638 N.E.2d 1150,

1156 (1994) (the trial court has the discretion to limit the

character and scope of closing argument).

2. Trial Court Did Not Abuse Its Discretion

Defendant first argues the trial court improperly

limited her cross-examination of Sergeant Chacon. Defendant

sought to cross-examine Sergeant Chacon on whether anything short

of vomiting where the contents of the stomach are brought up into

the mouth would affect the breath test and whether such event

occurred during the observation period.

A court may limit cross-examination of a witness to

prevent minimally relevant questioning or confusion of the

issues. Britt, 265 Ill. App. 3d at 146, 638 N.E.2d at 294.

Defendant must demonstrate not only that the trial court abused

its discretion but must also show the abuse of discretion re-

sulted in "manifest prejudice." Britt, 265 Ill. App. 3d at 146,

638 N.E.2d at 294; see also People v. Jackson, 303 Ill. App. 3d

583, 587, 715 N.E.2d 252, 255 (1999) (finding that even if a

- 35 -
trial court abuses its discretion, a new trial is not warranted

if the error is harmless beyond a reasonable doubt).

Here, the trial court did not abuse its discretion by

limiting defense counsel's cross-examination because the issue

defense counsel intended to raise had no basis in the evidence.

Officer Chacon did not testify that regurgitation would affect

the test, and defense counsel had identified no expert he in-

tended to call to testify in that regard.

Moreover, the applicable regulations no longer prohibit

regurgitation during the 20-minute observation period. Pursuant

to section 11-501.2 of the Vehicle Code, breath-alcohol test

results are admissible if the test is performed according to the

standards promulgated by the Department of State Police. See 625

ILCS 5/11-501.2 (West 2006). Prior to the 2004 amendments, the

applicable regulations provided that the subject shall not have

"regurgitated or vomited" during the 20-minute observation period

and if the subject "regurgitates or vomits," the process will

start again. See 20 Ill. Adm. Code §1286.310(a), adopted at 25

Ill. Reg. 3023, 3042-43 (eff. February 1, 2001); People v.

Bonutti, 212 Ill. 2d 182, 817 N.E.2d 489 (2004) (holding that the

test was valid if the subject did not regurgitate during the 20-

minute observation period regardless of whether the officer saw

the subject regurgitate). However, the regulations now provide

that for a breath test result to be admissible, the subject must

not have vomited during a 20-minute period. 20 Ill. Adm. Code

§1286.310(a), as amended by 28 Ill. Reg. 10017, 10038 (eff. June

- 36 -
30, 2004). Section 1286.310(a) of Title 20 of the Illinois

Administrative Code provides the following standards:

"The following procedures shall be used

to obtain a breath sample to determine a

subject's BrAC with an approved evidentiary

instrument:

a) Prior to obtaining a breath analysis

reading from a subject, the BAO or another

agency employee shall continuously observe

the subject for at least 20 minutes.

1) During the 20[-]minute

observation period the subject

shall be deprived of alcohol and

foreign substances and shall not

have vomited.

2) If the subject vomits dur-

ing the observation (deprivation)

period, the process shall be

started over by having the individ-

ual rinse the oral cavity with

water.

3) If the individual continues

to vomit, alternate testing shall

be considered." 20 Ill. Adm. Code

§1286.310(a), as amended by 29 Ill.

Reg. 10017, 10038 (eff. June 30,

- 37 -
 2004).

Defendant, by attempting to ask about actions other

than vomiting, attempted to introduce an issue into the case

without any evidence in support thereof. Therefore, the trial

court's ruling limiting defendant's cross-examination on that

subject was not an abuse of discretion.

Defendant also argues the trial court erred by limiting

her closing argument and not allowing her to comment on the

efficacy of Sergeant Chacon's observation of defendant. Even if

the trial court abused its discretion by not allowing counsel to

comment on the efficacy of Sergeant's Chacon's observation in

closing argument, the lack of a record precludes this court from

concluding that defendant suffered prejudice. Without the

transcript of closing argument, this court cannot determine

whether the court's limitation affected defendant's closing

argument. Because it was defendant's burden to provide this

court with an adequate record, any deficiency in the record is

construed against her. See, e.g., People v. Fernandez, 344 Ill.

App. 3d 152, 160, 799 N.E.2d 944, 951 (2003) (any doubts arising

from an incomplete record on appeal are resolved against the

appellant, who had the responsibility to present a complete

record on appeal). This court, therefore, finds any error by the

court in limiting defendant's closing argument was harmless.

F. Trial Court Did Not Err by Denying
Motion To Suppress Statements

Defendant argues the trial court erred by denying her

motion to suppress statements. Defendant argues "the officer did

- 38 -
not determine the [d]efendant understood the warnings and did not

obtain a waiver." Defendant also argues her will was overborne

"by the thorough chilling over an extended period of time."

1. Standard of Review

Whether a trial court properly decided a motion to

suppress presents questions of both law and fact. In re Christo-

pher K., 217 Ill. 2d 348, 373, 841 N.E.2d 945, 960 (2005). This

court will reverse a trial court's credibility determinations and

findings of fact only if they are against the manifest weight of

the evidence. In re Christopher K., 217 Ill. 2d at 373, 841

N.E.2d at 960. This court reviews de novo the ultimate legal

question of whether the statements should be suppressed. In re

Christopher K., 217 Ill. 2d at 373, 841 N.E.2d 960.

2. Denial of Motion To Suppress Issue Moot
or, Alternatively, Not Error

This court's review is severely hampered by defendant's

brief and the record on appeal. Defendant did not identify in

the trial court or on appeal the specific statements she sought

to suppress. The record is unclear whether the court admitted

any of the statements obtained during custodial interrogation

into evidence at trial. While this court has a portion of the

trial transcript, the record does not contain either a transcript

or the actual videotape or DVD admitted into evidence and pub-

lished to the jury. If the trial court did not admit any of the

statements allegedly received in violation of Miranda, the issue

is moot because those statements could not have formed the basis

for the jury's verdict. Cf., e.g., People v. Savory, 105 Ill.

- 39 -
App. 3d 1023, 1027, 435 N.E.2d 226, 230 (1982) (noting that the

defendant was not collaterally estopped from seeking review of

the denial of a motion to suppress in his second trial, despite

not seeking review of the same motion in his first trial, because

the prosecution did not rely on the statements in the first trial

and the issue would have been considered moot on review in the

first appeal).

Even assuming the issue is not moot, this court finds

no error. Defendant argues she did not understand the waiver.

Her brief does not indicate why she did not understand the

waiver. Evidence of intoxication alone is not sufficient to

render a statement unknowing. See People v. Silas, 278 Ill. App.

3d 400, 405, 663 N.E.2d 443, 447-48 (1996) (statements should be

suppressed only where a defendant is so grossly intoxicated that

she lacked the capacity to knowingly waive her rights). Defen-

dant does not argue she was so grossly intoxicated that she

lacked the capacity to waive her rights. Moreover, Sergeant

Chacon testified that defendant appeared to understand what he

told her.

Defendant also asserts that Sergeant Chacon failed to

obtain from defendant a waiver of defendant's Miranda rights.

Concededly, Sergeant's Chacon's testimony about defendant waiving

her Miranda rights was not clear. He initially testified he gave

defendant the opportunity to waive her Miranda rights by asking

her if she was willing to discuss the matter further. After

watching a portion of the videotape, Sergeant Chacon admitted he

- 40 -
never said, "Are you willing to waive those rights and talk to

me."

While any clear manifestation of a desire to waive is

sufficient, the statements are inadmissible if nothing in the

record shows a clear intent by the defendant to waive Miranda

rights. People v. Landgham, 122 Ill. App. 2d 9, 18, 257 N.E.2d

484, 488 (1970). Here, because defendant failed to provide this

court with the videotape of the interrogation, this court cannot

determine whether defendant manifested a clear desire to waive

her rights. Because defendant bore the burden of providing the

court with an adequate record, this court resolves the issue

against defendant. People v. House, 202 Ill. App. 3d 893, 908,

560 N.E.2d 1224, 1234 (1990); Fernandez, 344 Ill. App. 3d at 160,

799 N.E.2d at 951 (any doubts arising from an incomplete record

on appeal are resolved against the appellant). Given defendant's

failure to provide an adequate record, this court has no basis on

which to reverse the trial court's ruling on the motion to

suppress.

Finally, defendant argues her will was overborne

because she was cold. Whether a defendant's will is overborne

depends upon the totality of the circumstances, the characteris-

tics of the defendant, and the details of the interrogation.

People v. Berry, 123 Ill. App. 3d 1042, 1044, 463 N.E.2d 1044,

1047 (1984). Again, given the absence of the videotape or

transcript thereof on appeal, this court cannot review this

issue. Moreover, nothing in the record before this court sup-

- 41 -
ports the assertion that the temperature of the room created a

coercive environment that rendered any statements involuntary.

See, e.g., Hart v. State, 852 So. 2d 839, 847 (Ala. Crim. App.

2002) (finding that even though the defendant complained about

the temperature and requested additional clothing, nothing in the

record indicated that the cold temperature influenced his deci-

sion to speak or caused his will to be overborne).

G. Trial Court Did Not Err by Denying Bill of Particulars

Defendant next argues the trial court abused its

discretion by denying her motion for a bill of particulars.

Defendant claims her motion was timely because it was filed

within four days of the State charging her with count II.

Defendant asserts, without citation to authority, that discovery

is not a substitute to a motion for a bill of particulars.

Section 114-2(a) of the Code of Criminal Procedure of

1963 provides that a motion for a bill of particulars must be

filed within a reasonable time after arraignment. 725 ILCS

5/114-2(a) (West 2006). "The purpose of a bill of particulars is

to give the defendant notice of the charge and to inform the

defendant of the particular transactions in question, thus

enabling preparation of a defense." People v. Woodrum, 223 Ill.

2d 286, 301-02, 860 N.E.2d 259, 270 (2006). If the indictment

sufficiently informs the defendant of the charged offense, no

need for a bill of particulars exists. Woodrum, 223 Ill. 2d at

302, 860 N.E.2d at 270. Moreover, this court can also consider

any discovery the State furnishes when determining the necessity

- 42 -
of a bill of particulars. See, e.g., People v. Smith, 259 Ill.

App. 3d 492, 497, 631 N.E.2d 738, 742 (1994) (noting that a

defendant who claims that a charging instrument, combined with

any discovery the State furnished, is insufficient to prepare a

defense, she should seek a bill of particulars). A trial court's

ruling on a motion for a bill of particulars will not be reversed

absent an abuse of discretion. Woodrum, 223 Ill. 2d at 302, 860

N.E.2d at 270.

In this case, the trial court arraigned defendant on

June 1, 2006, on count I, and on January 5, 2007, on count II.

Therefore, the motion for a bill of particulars was timely only

as to count II. However, because the trial court vacated count

II after trial, defendant was not prejudiced by the denial of the

motion for a bill of particulars on count II.

In any event, the trial court did not abuse its discre-

tion by denying the request for a bill of particulars because the

information and the State's discovery sufficiently informed

defendant of the charged offenses. Defendant's bill of particu-

lars sought the date, time, and location of the alleged offenses,

the name of any persons present who witnessed the alleged of-

fenses, and the length of time the alleged conduct continued.

The informations gave the date of both offenses, the location

(Urbana), and the nature of the offenses. The discovery fur-

nished by the State in June 2006 gave defendant the date and time

of the alleged offenses, the arresting officer's name, defen-

dant's driving abstract from the Secretary of State, and police

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reports that, among other things, identified defendant's front-

seat passenger. Consequently, the court did not abuse its

discretion by denying the motion for a bill of particulars.

H. Defendant Has Forfeited Issue That
Her Sentence Is Excessive

Defendant last argues her sentence was excessive.

However, the record on appeal does not contain a transcript of

the March 28, 2007, sentencing hearing. Without a transcript,

this court cannot determine whether the trial court abused its

discretion because, for example, this court does not know what

factors influenced the court's decision, whether the court

considered mitigating factors, and whether the court considered

certain aggravating factors.

Moreover, defendant fails to cite any authority in

support of her arguments, not even the standard of review.

Points not argued with citation to authority are forfeited. See

210 Ill. 2d Rs. 341(h)(7), 612(i).

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we grant the State's request

that defendant be assessed $75 as costs for this appeal.

Affirmed.

McCULLOUGH and TURNER, JJ., concur.

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