SECOND DIVISION September 30, 2013

No. 1-12-0530

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 5399 ) JEROLD LIPSCOMB, ) Honorable ) James L. Rhodes, Defendant-Appellant. ) Judge Presiding.

JUSTICE PIERCE delivered the judgment of the court, with opinion. Justice Harris and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Jerold Lipscomb was convicted of aggravated fleeing

or attempting to elude a police officer (625 ILCS 5/11-204.1(a)(1) (West 2010)) and sentenced

to 18 months in prison. On appeal, the defendant asserts the State did not sufficiently prove

beyond a reasonable doubt the aggravating factor of traveling at least 21 miles per hour over the

legal speed limit. We vacate defendant's conviction, and enter judgment of conviction on the

lesser charge of misdemeanor fleeing or attempting to elude a police officer.

¶2 At trial, Detective M. Coleman testified that on February 20, 2010 at approximately 3

a.m. he responded to a call of multiple shots fired in the area of 142nd and Grant Streets in

Dolton, Illinois. Coleman was in full uniform and driving an unmarked squad car, equipped with

emergency lights, which was inspected prior to his tour. After arriving on the scene, he turned

off of Grant Street and began going eastbound on Anne Street, heading toward Oak Street.

While approaching Oak Street, Coleman observed a dark-colored car occupied by three black 1-12-0530

males and driven by defendant traveling south on Oak Street. The car turned westbound on

Anne Street, almost striking Coleman's vehicle. Coleman made a U-turn, positioned his car

behind defendant's car, and activated his emergency lights in an attempt to curb the car. At some

point during the pursuit, Coleman looked at his speedometer and it read 55 miles per hour. He

testified the speed limit in this residential area "was 15 to 20 miles per hour." Coleman did not

offer any testimony relating to defendant's speed during the pursuit. Defendant did not curb his

car, and Coleman radioed other officers to inform them that he was pursuing defendant.

Coleman caught up to defendant's car after driving "more than half a block" on Anne Street, and

pursued him for another half block southbound on Grant Street. Two marked squad cars

responded to Coleman's radio broadcast, and assisted Coleman in boxing in defendant's car, with

one squad blocking the front end, a second squad blocking the back end, and then Coleman

pulling up along the driver's side of defendant's car.

¶3 After defendant's car was stopped, he observed defendant hand the backseat passenger a

foot long semiautomatic submachine gun. The passenger jumped out of the car, and ran into a

nearby yard. Coleman pursued the passenger, but never apprehended him; however, the gun was

recovered. The court acquitted defendant of charges relating to the gun, but convicted him of

aggravated fleeing or attempting to elude a police officer without explanation.

¶4 On appeal, defendant asserts the State failed to prove that he traveled at least 21 miles per

hour over the legal speed limit where the State's sole witness, the arresting officer, gave

ambiguous testimony about the speed limit of the location of the pursuit, only testified as to his

speed while catching up to defendant, and failed to testify that the speedometer on his unmarked

car was accurate. Defendant has already served his 18 month sentence, but asks the court to

reverse the felony conviction and enter judgment on the lesser offense of misdemeanor fleeing or

attempting to elude a police officer.

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¶5 It is fundamental that “the Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for

which he is charged.” People v. Carpenter,

(2008). When a defendant

challenges the sufficiency of the evidence to sustain his conviction, the relevant question on

review is whether, after considering the evidence in the light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. People v. Beauchamp,

(2011). The trier of fact determines the

credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences

to be drawn from the evidence, and this court will not substitute its judgment for that of the trial

court on these matters. People v. Collins,

(2005). If, after a careful

examination of the evidence, we “are of the opinion that the evidence is insufficient to establish

the defendant’s guilt beyond a reasonable doubt, we must reverse the conviction.” People v.

Hernandez,

(2000). Although the determinations of the trier of fact

are given great deference, they are not conclusive. People v. Ortiz,

(2001).

We will set aside a criminal conviction if “the evidence is so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of defendant’s guilt.”

¶6 Aggravated fleeing or attempting to elude a police officer is committed "by any driver or

operator of a motor vehicle who flees or attempts to elude a police officer, after being given a

visual or audible signal by a police officer *** and such flight or attempt to elude *** is at a rate

of speed at least 21 miles per hour over the legal speed limit." 625 ILCS 5/11-204.1(a)(1) (West

2010). Here, the only element in dispute is whether the evidence proved beyond a reasonable

doubt that the defendant was traveling at least 21 miles per hour over the legal speed limit.

¶7 Coleman testified that the speed limit in the residential area where the chase occurred

was 15 to 20 miles per hour. Therefore, for purposes of proving an element of the charged

offense, the State had the burden to prove defendant's speed exceeded the speed limit (maximum

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20 miles per hour) by 21 miles per hour, i.e., defendant's speed was at least 41 miles per hour.

The parties agree that proof of a defendant's speed has been established by means of a radar gun

(People v. Abdallah,

(1967)) by a stopwatch (People v. Wilson,

(1981)) by pacing the defendant's vehicle (People v. O'Malley,

, 1040 (2005)) or by direct testimony of an officer (People v. Brown,

(2005)). The parties also agree no such testimony was presented at trial.

¶8 The only evidence relating to the speed of any vehicle is Officer Coleman's testimony

about the speed of Coleman's car when he looked at his speedometer at some point after he made

his U-turn and began pursuing the defendant. Although Coleman testified that his speedometer

read 55 miles per hour during the pursuit, there is no evidence as to the period of time he drove

at this speed, whether this was a constant speed during the pursuit or whether it was simply the

speed to which he accelerated in order to catch up to defendant's car. Furthermore, there is no

evidence dealing with the relationship of Coleman's and defendant's vehicles during the pursuit,

whether defendant was pulling away from Coleman or whether Coleman was gaining on

defendant, from which the trier of fact could reasonably infer defendant was traveling at least 21

miles per hour over the speed limit. Coleman only testified that he made a U-turn and pursued

defendant's car for about a half block on Anne and a half block on Grant before the defendant

was blocked by two other police vehicles. Without competent evidence which would reasonably

tend to indicate the speed of defendant's vehicle, the State did not prove beyond a reasonable

doubt that defendant was traveling at a rate of speed of at least 41 miles per hour.

¶9 In support of the conviction, the State argues this factual situation is "nearly identical" to

that of People v. Brown,

(2005) where police officers observed a shooting,

chased the defendant at an estimated speed of 60 to 70 miles an hour while defendant's speed

was estimated by the officers to be 70 to 80 miles per hour.

. The issue in Brown was

whether the state proved the defendant drove at a rate of speed at least 21 miles over the legal

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speed limit after becoming aware of a visual or audible signal to stop and, therefore, is not on

point. However, Brown is instructive in that it recognizes the testimony of the officers that

estimated defendant's excessive rate of speed and the observation that defendant at some point

was pulling away from the pursuing officers.

. There is no evidence in this record

from which the trier of fact could reasonably infer or conclude any rate of speed of defendant

during this incident, let alone that his vehicle's speed was more than 21 miles over the legal

speed limit. The evidence presented is clearly unsatisfactory and does not constitute proof

beyond a reasonable doubt of the excessive speed element of the offense charged.

¶ 10 Defendant moved for an outright reversal of his conviction in his opening brief, however,

in his reply brief he requests this court to reverse the felony conviction and enter judgment on

the lesser misdemeanor offense because he "has completed his eighteen-month sentence,

including the accompanying term of supervised release" and "remand for re-sentencing would be

superfluous." This issue of this court reducing the degree of offense under Rule 615(b)(3) was

recently addressed by our Supreme Court in People v. Kennebrew,

.

"Supreme Court Rule 615(b)(3) provides that '[o]n appeal the reviewing court

may *** reduce the degree of the offense of which the appellant was convicted.'

Ill. S. Ct. R. 615(b)(3). Under Rule 615(b)(3), '[a] reviewing court has the

authority to reduce the degree of the offense of which a defendant was convicted

when the evidence fails to prove beyond a reasonable doubt an element of the

greater offense.' People v. Rowell,

(2008). '[S]tate and federal

appellate courts have long exercised the power to reverse a conviction while at

the same time ordering the entry of a judgment on a lesser-included offense.'

People v. Knaff,

(2001). Furthermore, '[t]he authority to

order the entry of judgment on the lesser-included offense is both statutory and

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based on the common law; the constitutionality of the practice has never been

seriously questioned.'

." Id. at ¶ 21.

¶ 11 A lesser included offense is one that is "established by proof of the same or less than all

of the facts or a less culpable mental state (or both), than that which is required to establish the

commission of the offense charged." 720 ILCS 5/2-9(a) (West 2010). "There are three methods

for determining whether an offense is a lesser-included offense of another: (1) the abstract

elements approach; (2) the charging instrument approach; and (3) the 'factual' or 'evidence'

adduced at trial approach. [Citations.]" (Internal quotation marks omitted.) People v. Kennebrew,

. Where the appellate court convicts a defendant of an uncharged offense

through the exercise of its authority under Rule 615(b)(3), the charging instrument approach

applies. Id. at ¶ 53. "There are two steps to the charging instrument approach. First, the court

determines whether the offense is a lesser-included offense. Next, the court examines the

evidence at trial to determine whether the evidence was sufficient to uphold a conviction on the

lesser offense. [Citation.]" (Internal quotation marks omitted.) Id. at ¶ 30.

¶ 12 Clearly, fleeing or attempting to elude a police officer (625 ILCS 5/11-204(a) (West

2010)) is a lesser included offense of aggravated fleeing or attempting to elude a police officer

(625 ILCS 5/11-204.1(a)(1) (West 2010)). As set forth above, the evidence in the record is

sufficient to uphold a conviction on fleeing or attempting to elude a police officer (625 ILCS

5/11-204(a) (West 2010)). Having found that the State failed to prove one of the requisite

aggravating factors of felony aggravated fleeing or attempting to elude a police officer, we

exercise our authority under Illinois Supreme Court Rule 615(b)(3) and vacate the conviction,

reduce the degree of the offense of conviction and enter judgment against defendant on the lesser

included offense of fleeing or attempting to elude a police officer, a Class A misdemeanor. 625

ILCS 5/11-204(a) (West 2010). Because defendant has already completed a sentence of 18

months in prison, which exceeds the maximum sentence allowed for the lesser offense of fleeing

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or attempting to elude a police officer, a misdemeanor, we exercise our authority under Illinois

Supreme Court Rule 615(b)(4) to reduce defendant's sentence to 365 days, time served.

¶ 13 For the foregoing reasons, defendant's felony conviction for aggravated fleeing or

attempting to elude a police officer (625 ILCS 5/11-204.1(a)(1) (West 2010)) is vacated, and

judgment of conviction is entered on the charge of misdemeanor fleeing or attempting to elude a

police officer (625 ILCS 5/11-204(a) (West 2010)).

¶ 14 Vacated in part; judgment modified.

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