People v. Foster

2023 IL App (5th) 220234-U
NOTICE
NOTICE
Decision filed 04/24/23. The
This order was filed under
text of this decision may be NO. 5-22-0234
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Marion County.
)
v. ) No. 20-CF-259
)
CLARENCE FOSTER, ) Honorable
) Mark W. Stedelin,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and McHaney concurred in the judgment.

ORDER

¶1 Held: Where there is no arguable merit to contentions that the evidence at trial was
insufficient to convict the defendant of driving on a suspended license, the trial
court erred in its evidentiary rulings, or the court failed to conduct a proper
fitness hearing, we grant the defendant’s appointed counsel on appeal leave to
withdraw and affirm the trial court’s judgment.

¶2 Following a jury trial, the defendant, Clarence Foster, was found guilty of driving with a

suspended driver’s license (625 ILCS 5/6-303(d) (West 2020)). He filed a notice of appeal. His

appointed appellate counsel, the Office of the State Appellate Defender (OSAD), concluded there

was no reasonably meritorious argument that his convictions should be reversed. Accordingly, it

filed a motion to withdraw as counsel along with a supporting memorandum. See Anders v.

California, 386 U.S. 738 (1967). OSAD notified the defendant of its motion, and this court

provided him with an opportunity to respond. He did not. After considering the record on appeal,

1
OSAD’s motion, and its supporting memorandum, we agree this appeal presents no reasonably

meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit court’s

judgment.

¶3 BACKGROUND

¶4 Defendant was charged with driving with a suspended driver’s license (625 ILCS 5/6-

303(d) (West 2020)). The only witness at trial was Salem police officer Taylor Rose, who testified

as follows. He received information that the defendant—whose driver’s license was suspended—

was about to leave his job at Walmart in Salem, Illinois, and drive. Officer Rose was familiar with

the defendant and his car. Officer Rose parked some distance away from Walmart and used

binoculars to watch the defendant’s car. He saw the defendant get in his car and drive out of the

parking lot. No one else was in the car. Officer Rose notified Officer Potter that the defendant was

heading east on Main Street.

¶5 Officer Rose learned that Officer Potter stopped the defendant’s car at the intersection of

Main Street and Kinney Boulevard, in Salem, Illinois. Officer Rose drove to that location in less

than a minute. Upon arrival, he saw the defendant get out of the driver’s side of the car. No one

else was in the car. In response to his inquiry, the dispatcher informed Officer Rose that the

defendant’s license was “ ‘suspended/revoked.’ ”

¶6 Officer Rose was unable to recall the defendant’s date of birth. Over defense counsel’s

objection, he was allowed to refresh his recollection with Potter’s report. After reviewing Officer

Potter’s police report, Officer Rose averred that he recalled the defendant’s date of birth.

¶7 Although no witness testified about it, the jury was provided with a redacted copy of the

defendant’s driving abstract which showed his license was suspended but not the reason for the

suspension. The jury found the defendant guilty.

2
¶8 In a posttrial motion, the defense argued that the trial court erred by allowing Officer Rose

to refresh his recollection with a report that he did not author and the State did not prove the

defendant guilty beyond a reasonable doubt where Officer Rose never saw him drive on a public

street. The court denied the motion.

¶9 Prior to sentencing, defense counsel stated that, based on her conversations and

correspondence with the defendant, a bona fide doubt of the defendant’s fitness existed. The court

ordered a fitness evaluation. The evaluator concluded that, although the defendant had some

mental health issues, he was fit for trial. The parties stipulated to the admissibility of the report.

The court stated, “Based on the report, I’ll find the defendant is fit.”

¶ 10 Following a sentencing hearing, the court sentenced the defendant to 90 days in jail and

two years’ probation. The defendant timely appeals.

¶ 11 ANALYSIS

¶ 12 OSAD concludes there is no reasonably meritorious argument that (1) the defendant was

not proved guilty beyond a reasonable doubt or (2) the trial court committed reversible error by

(a) allowing Officer Rose to refresh his recollection with another officer’s police report,

(b) admitting the defendant’s driving abstract without laying a foundation, and (c) failing to

independently determine whether the defendant was fit for sentencing. We agree.

¶ 13 OSAD first concludes the evidence was sufficient. Where a defendant challenges the

sufficiency of the evidence, we decide only “ ‘whether, after 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.’ ” (Emphasis in original.) People v. De Filippo, 235 Ill. 2d

377, 384-85 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Circumstantial

3
evidence is sufficient if it proves beyond a reasonable doubt each element of the charged offense.

People v. Hall, 194 Ill. 2d 305, 330 (2000).

¶ 14 The defendant was charged with driving with a suspended license. To convict him of this

offense, the State had to prove that (1) he drove or was in actual physical control of a motor vehicle

on a highway of this state and (2) his driver’s license was suspended at the time. 625 ILCS 5/6-

303(a) (West 2020).

¶ 15 The defendant argued below that Officer Rose never saw him drive on a public highway.

This may be, but Officer Rose’s testimony was more than sufficient to prove circumstantially that

the defendant drove on a public roadway. He saw the defendant drive out of the Walmart parking

lot. The defendant was the only person in the car. Less than a minute later, he saw the car pull over

on Main Street, and the defendant exited on the driver’s side. It was thus reasonable for the jury to

infer that the defendant drove from Walmart to the intersection of Main Street and Kinney

Boulevard. Indeed, given that no one else was seen in the car, it is difficult to imagine how the

defendant got there unless he drove himself. Thus, the evidence was sufficient to prove that the

defendant drove on a public road.

¶ 16 OSAD also concludes there is no good-faith argument that the court erred by allowing

Officer Rose to refresh his recollection with Officer Potter’s report. A document may be used to

refresh a witness’s recollection while he is testifying. People v. Shatner, 174 Ill. 2d 133, 153

(1996). After the witness’s recollection has been refreshed, the witness then testifies from his

independent recollection. People v. Pappas, 66 Ill. App. 3d 360, 374 (1978) (citing People v.

Van Dyk, 40 Ill. App. 3d 275, 279 (1976)). “[A] witness may refresh his recollection from virtually

any source,” with the trial court having wide discretion in this regard. Id. Accordingly, there is no

meritorious argument that the court erred in allowing Officer Rose to refresh his recollection with

4
another officer’s report. See Van Dyk, 40 Ill. App. 3d at 279 (the document used to refresh a

witness’s memory “need not have been made by the witness nor be independently admissible into

evidence, provided that, after inspecting it, the witness can speak to the facts from his own

recollection”).

¶ 17 OSAD next concludes there is no meritorious argument that the court erred by admitting

the defendant’s driving abstract despite a lack of foundation. Generally, to lay a foundation for the

admission of a public record, the proponent must show that the document is reliable and accurate.

Village of Arlington Heights v. Anderson, 2011 IL App (1st) 110748, ¶ 14. However, a foundation

is not required if the public record is self-authenticating. People ex rel. Madigan v. Kole, 2012 IL

App (2d) 110245, ¶ 56.

¶ 18 A driving abstract is such a self-authenticating record. The Secretary of State is required to

retain records of license revocations and suspensions and any convictions related thereto. 625

ILCS 5/6-117(b)-(c) (West 2020). The Secretary of State is also authorized to “prepare under the

seal of the Secretary of State certified copies of any records of his office and every such certified

copy shall be admissible in any proceeding in any court.” Id. § 2-108. Thus, in any prosecution

under the Illinois Vehicle Code, a court may consider an electronically transmitted copy of a

defendant’s driving abstract as long as it is certified. People v. Meadows, 371 Ill. App. 3d 259, 263

(2007).

¶ 19 Here, each page of the defendant’s abstract contains the State seal and is signed by Jesse

White, who was the Illinois Secretary of State, certifying that they are true and accurate copies.

Thus, the abstract was properly certified, and the court did not err in admitting it without requiring

the State to lay a foundation.

5
¶ 20 OSAD finally concludes the court did not err in finding the defendant fit for trial. The due

process clause of the fourteenth amendment bars prosecuting a defendant who is unfit to stand

trial. People v. Holt, 2014 IL 116989, ¶ 51 (citing People v. Shum, 207 Ill. 2d 47, 57 (2003)). A

defendant is unfit to stand trial if, based on a “mental or physical condition, he is unable to

understand the nature and purpose of the proceedings against him or to assist in his defense.” 725

ILCS 5/104-10 (West 2020); People v. Burton, 184 Ill. 2d 1, 13 (1998).

¶ 21 When a bona fide doubt of a defendant’s fitness arises, the court must make an independent

finding that the defendant is fit to proceed. People v. Cook, 2014 IL App (2d) 130545, ¶ 14. If the

court does not conduct an independent inquiry into a defendant’s fitness “but, instead, relies

exclusively on the parties’ stipulation to a psychological report finding the defendant fit, the

defendant’s due process rights are violated.” Id. ¶ 15. “However, where a trial court’s finding of

fitness is based not only on stipulations but also on its observations of the defendant and a review

of a psychological report, the defendant’s due process rights are not offended.” Id.

¶ 22 Here, the court followed the proper procedure. The parties stipulated only that the report

was admissible, not that it conclusively established the defendant’s fitness. The court stated that,

“[b]ased on the report,” it found the defendant fit, indicating that the court had independently

reviewed the report and made its own finding of the defendant’s fitness. Although the court did

not specifically mention that it was relying on its observations of the defendant during the trial, a

trial judge is presumed to know the law, and on review, we presume that, absent an affirmative

indication to the contrary, the trial judge followed the applicable law. People v. Reber, 2019 IL

App (5th) 150439, ¶ 85.

6
¶ 23 CONCLUSION

¶ 24 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 25 Motion granted; judgment affirmed.

7