Opinion
No. 1-15-1441
08-22-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NAVI RAY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 14 CR 8982
Honorable Thomas M. Davy, Judge, presiding.
JUSTICE NEVILLE delivered the judgment of the court.
Presiding Justice Hyman and Justice Pierce concurred in the judgment.
ORDER
¶ 1 Held: We affirm defendant's conviction for aggravated fleeing or attempting to elude a peace officer where the evidence was sufficient to show defendant was the driver of the vehicle involved.
¶ 2 Following a bench trial, defendant Navi Ray was convicted of aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(4) (West 2012)) and sentenced to two years' probation. On appeal, he argues the evidence was insufficient to prove beyond a reasonable doubt that he was the driver of the vehicle involved. We affirm.
¶ 3 At trial, Chicago police officer Jan Kenar testified that, on April 24, 2014, he was working with Officers Malozzi, MacLagen, and Hermiso, in the area of Marquette and Cornell Drives in Chicago. He received a call of shots fired and learned a blue Dodge Durango car with partial license plate "LORAY" was fleeing southbound on Cornell from around 57th Street. Kenar, dressed in full uniform and in a marked squad car, activated his emergency lights and sirens when he noticed a car matching the description given at Marquette and Cornell. The car did not pull over but proceeded westbound on Marquette, disregarded a red light at Marquette and Stony Island Avenue, and turned northbound onto Stony Island. The car continued northbound on Stony Island and disregarded stop signs at 64th and 56th Streets.
¶ 4 The car then attempted to make a right turn but instead jumped the curb and crashed into a fence surrounding a school. Kenar stopped his vehicle about 10 feet from the crashed car and approached closer to the vehicle on foot. He observed the driver's side door "cracked open" and an individual, identified in court as defendant, fleeing from that door. He further noticed the driver's side rear door open. Kenar pursued defendant and detained him about a block away.
¶ 5 On cross-examination, Kenar testified that he saw an individual exit from the passenger's side front door "almost simultaneously" as the defendant exited the driver's side door, immediately after the crash. He testified that the front, driver's side of the car struck the fence and one or more of the other officers pursued the individual exiting from the passenger's side front door.
¶ 6 The parties then stipulated that the squad car video depicted the car chase at issue. The video was published to the court with Officer Kenar describing what it showed.
¶ 7 The video shows the Durango weaving through traffic while being pursued by police. The video then shows the Durango attempt to make a right turn but driving onto the sidewalk and striking a fence on the front driver's side. Immediately thereafter, a man exits the front passenger's side door. Next, a man exits from the driver's side as the police vehicle pulls up behind the right side of the Durango. Shortly thereafter, a third man exits from the driver's side and flees. Kenar testified that this individual was defendant, who had exited from the driver's door. Finally, the Durango begins to shake and a fourth man exits the vehicle from the front passenger's side door. Kenar is shown on the video towards the left side of the Durango before giving chase to a man running from the Durango.
¶ 8 The parties further stipulated that the vehicle involved in the pursuit was a 2002 Dodge Durango truck with Illinois license plate "LORRAY1" and owned by defendant's mother, Lori Ann Ray.
¶ 9 Defense witness Lori Ann Ray testified that she is the mother of defendant and owner of the 2002 Durango, which she allowed defendant to drive. The vehicle has six total seats: two in front separated by a console, a bench for two in the middle, and a back bench for two that can be flipped up or down. Following the crash, she went to the impound lot to retrieve personal items and observed the front driver's side was "totaled" with the front wheel totally destroyed. She was unable to open the driver's side door at all.
¶ 10 The trial court found defendant guilty and noted that Officer Kenar testified that he was 10 feet away and observed defendant exiting from the front driver's side door. With respect to the video, the trial court stated that it "does not show, one way or the other, what door both persons who got out on the driver's side exit from, whether it is the front or the rear." It
continued, "[d]efendant is exiting from a higher position than the first person who ran." The court found, based on the totality of the evidence presented, that the State proved defendant's guilt beyond a reasonable doubt.
¶ 11 The trial court denied defendant's written motion for reconsideration or for a new trial. It sentenced him to two years' probation with six months in the Cook County Department of Corrections, time considered served by the time he spent on electronic monitoring. Defendant filed a timely notice of appeal.
¶ 12 On appeal, defendant argues the State failed to prove beyond a reasonable doubt that defendant was the driver of the vehicle involved because the squad car video contradicts Kenar's testimony that defendant exited the driver's door. The State responds that the squad car video actually corroborates Kenar's testimony that defendant was the driver of the vehicle.
¶ 13 The standard of review when challenging the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48. "A reviewing court will not substitute its judgment for that of the trier of fact on issues involving the weight of evidence or the credibility of witnesses." People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009). Although the determinations of the trier of fact are afforded great deference, they are not conclusive. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). We will not reverse a conviction unless "the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt." People v. Collins, 214 Ill. 2d 206, 217 (2005).
¶ 14 As charged here, the offense of aggravated fleeing or attempting to elude a peace officer occurs when "any driver or operator of a motor vehicle who flees or attempts to elude a peace officer, after being given a visual or audible signal by a peace officer *** and such flight or attempt to elude *** involves disobedience of 2 or more official traffic control devices." 625 ILCS 5/11-204.1(a)(4) (West 2012). Defendant does not dispute that the vehicle disregarded two or more traffic control devices or that he was present in the vehicle. Rather, he only challenges the evidence that he was the driver of the vehicle.
¶ 15 Viewing the evidence in the light most favorable to the State, we find the evidence was sufficient to prove defendant was the driver of the vehicle and thus, guilty of the charged offense. Kenar testified that, after the Durango crashed into the fence, he stopped his vehicle about 10 feet from the crashed car and approached closer to the vehicle. Kenar noticed the driver's door open and saw defendant fleeing from that door. He chased after defendant and apprehended him about a block away. Kenar's positive identification of defendant fleeing from the driver's door was sufficient to establish that defendant was the driver and thus, guilty of aggravated fleeing or attempting to elude a peace officer. See People v. Smith, 185 Ill. 2d 532, 541 (1999) ("[t]he testimony of a single witness, if it is positive and the witness credible, is sufficient to convict").
¶ 16 Defendant argues that the squad car video contradicts Kenar's testimony. He asserts that, as the video is not live testimony, no deference should be afforded to the trial court's conclusions as to what the video depicted. It is true that trial courts do not occupy a position superior to an appellate court when evaluating non-live testimony (People v. Radojcic, 2013 IL 114197, ¶ 34) and we therefore give less deference to the trial court's fact determinations when based on surveillance video evidence. People v. Shaw, 2015 IL App (1st) 123157, ¶ 29. We have applied
this less deferential standard where the trial court's factual findings were based solely on nontestimonial evidence. See, e.g., People v. Dixon, 2015 IL App (1st) 133303, ¶ 34 (concluding the trial court's factual findings regarding the nature of a weapon based on a surveillance video were against the manifest weight of the evidence where no witness testified to a gun's physical characteristics and these characteristics could not be determined from the nontestimonial, surveillance video). Here, while the trial court did consider the video evidence, it based its finding of guilt on all the evidence, including Kenar's testimony. Further, as this video is inconclusive, we defer to the trial court's credibility determinations regarding Kenar's live testimony that he witnessed defendant exit the Durango through the driver's door.
¶ 17 The trial judge, in finding defendant guilty, stated "[b]ased on the totality of testimony presented, Officer Kenar making the observation of where the Defendant came out of in the approximate distance he was, I feel the State has proved the guilt of the Defendant beyond a reasonable doubt, and there will be a finding of guilty." The trial judge also stated that the video "does not show, one way or the other, what door both persons who got out on the driver's side exit from, whether it is the front or the rear." Based on the trial court's comments, defendant's guilt was primarily determined from Kenar's testimony, and we will give great deference to this finding. See Ortiz, 196 Ill. 2d at 259.
¶ 18 We examined defendant's conclusions as to what the video depicts. Specifically, he contends that the video shows defendant exiting through the rear driver's side door, directly after another man exited through the same door. The video is shot from the passenger side of the vehicle and does not provide a view of the driver's side of the vehicle after the crash. What the video does show is that immediately after the Durango crashes, one man exits from the front
passenger's side door. Then, two men exit from the driver's side of the vehicle in quick succession. Kenar is seen on video approaching the Durango on the left side before giving chase after defendant. Finally, the car shakes before a fourth man exits through the front passenger's side door.
¶ 19 Defendant speculates that, because Kenar testified that the driver's door was only opened about 12 inches and the video does not depict defendant turning his body sideways to exit, he must not have exited from the driver's door. He also posits a scenario which he describes as "much more logical," wherein the fourth man to exit the Durango was the driver and had climbed over from the driver's seat to exit out of the front passenger's side door. He argues the State's theory that the fourth man climbed from the backseat to exit from the front passenger's side door is "unbelievable." However, as previously discussed, the video does not provide a full view of the driver's side of the vehicle. Moreover, Kenar's testimony explicitly stated that he observed defendant exiting from the driver's side door. Defendant's contentions are mere speculation because they are based on less than a full view of the driver's side of the Durango and therefore, are insufficient to establish reasonable doubt of his guilt. See In re Jonathon C.B., 2011 IL 107750, ¶ 60 ("[a] trier of fact is not required to disregard inferences which flow normally from the evidence before it, nor must the trier of fact search out all possible explanations consistent with innocence, and raise those explanations to a level of reasonable doubt").
¶ 20 Defendant maintains that Kenar's testimony was not credible because, at trial, Kenar testified that he did not see the first man exit from the driver's side until he watched the video. According to defendant, "[t]his brings into question Kenar's ability to view [defendant] as he
exited the Durango." However, to the extent this may be deemed an inconsistency, the trial court, as trier of fact, weighed any inconsistencies in the testimony when determining the credibility of the witness. See People v. Faber, 2012 IL App (1st) 093273, ¶ 54. Further, minor conflicts and inconsistencies in the testimony of witnesses do not, of themselves, create reasonable doubt. People v. Adams, 109 Ill. 2d 102, 115 (1985). We will not retry defendant on appeal or substitute our judgment for that of the trier of fact. See People v. Cowart, 2017 IL App (1st) 113085, ¶ 31.
¶ 21 Defendant also asserts the video contradicts Kenar's testimony that he had an unobstructed view of defendant. He argues that, because the rear driver's side door of the Durango was open, it would block any view Kenar would have of defendant exiting from the driver's door. However, Kenar testified that he observed defendant exit from the driver's door. Further, defendant contends the video shows "Kenar come from the opposite side of the Durango, run past the back of the Durango and climb over the fence to chase [defendant]" thereby contradicting Kenar's testimony that he had an unobstructed view of defendant exiting from the driver's door. The video does not give this court a full view of the driver's side of the Durango. Rather, the video merely shows the Durango crash, one man exits from the passenger side of the Durango, and two men exit from the driver's side of the Durango. The video then shows Kenar appear on the left side of video and he chases the defendant as a fourth man exits from the front passenger's side door. The video does not provide this court with uncontrovertible evidence that would permit this court to substitute its judgment for that of the trial court on issues involving the weight of the evidence or the credibility of the witnesses. See Siguenza-Brito, 235 Ill. 2d at 224-25. Accordingly, we cannot conclude, after viewing the evidence in the
light most favorable to the State, that no rational trier of fact could find that defendant was the driver of the vehicle beyond a reasonable doubt.
¶ 22 For the reasons set forth above, we affirm the judgment of the circuit court of Cook County.
¶ 23 Affirmed.