People v. Gosse, No. 82-829

CourtUnited States Appellate Court of Illinois
Writing for the CourtHOPF
Citation119 Ill.App.3d 733,75 Ill.Dec. 339,457 N.E.2d 129
Decision Date22 November 1983
Docket NumberNo. 82-829
Parties, 75 Ill.Dec. 339 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy GOSSE, Defendant-Appellant.

Page 129

457 N.E.2d 129
119 Ill.App.3d 733, 75 Ill.Dec. 339
PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Timothy GOSSE, Defendant-Appellant.
No. 82-829.
Appellate Court of Illinois,
Second District.
Nov. 22, 1983.

[119 Ill.App.3d 734]

Page 130

[75 Ill.Dec. 340] Tomas M. Magdich, Dixon, for defendant-appellant.

Ergene Stockton, States Atty., Dixon, Phyllis J. Perko, Elgin, Sally A. Swiss, for plaintiff-appellee.

[119 Ill.App.3d 735] HOPF, Justice:

On September 13, 1982, a circuit court jury of Lee County found the defendant, Timothy Gosse, guilty of the crime of reckless conduct (Ill.Rev.Stat.1981, ch. 38, par. 12-5(a)). He was sentenced to a term of probation for one year. The information in

Page 131

[75 Ill.Dec. 341] substance charged that he committed the offense of reckless conduct, in that his conduct caused great bodily harm to Diane Matheny, a passenger in his jeep, when he attempted to make a right hand turn traveling at an excessive rate of speed on land used to excavate gravel, thereby causing the jeep to flip over and in that manner causing great bodily injury to Diane Matheny. Ms. Matheny in fact died as a result of this incident. This appeal followed. We reverse.

At trial, a witness, Pamela Knapick, testified to a meeting in the city of Rochelle of the defendant, the decedent, Terry Bowers and herself. The four went to the gravel pit area in defendant's jeep. Upon arrival they each had a beer. They drove around and up and down small hills. They stopped on top of a hill whereupon they twice passed a pipe containing cannabis. The defendant then drove down the hill to level ground and started to go around the hill when the incident occurred. Knapick testified that the defendant drove more or less carefully; that he did nothing unusual in turning the wheel, was traveling around 10 to 20 miles per hour; that the defendant was not under the influence of alcohol or cannabis. James McCaslin, the Rochelle fire chief, testified he could detect the odor of alcohol at close range. Officer Jack Wells could likewise detect alcohol from three to four feet. In the gravel pit area the level ground was made up of pea gravel and sand, and was not as compact as an ordinary gravel road.

In the defendant's case his father testified that prior to the incident, he and the defendant had repaired the brakes due to the fact that upon getting wet the vehicle pulled to the right on application of the brakes. Defendant testified that during his driving in the gravel pit, he drove through a creek, which was one and one-half to two feet deep. He further testified that he may have been traveling 30 miles per hour. The defendant testified that as he was going to turn left, he applied the brakes and the jeep started rolling.

Defendant contends on appeal: (1) that the court erred in not granting his motion in limine to exclude evidence of his consumption of alcohol and cannabis use; (2) that reckless conduct is an inappropriate charge where the victim dies; and (3) that the proof failed to show that the defendant acted recklessly.

Defendant in advance of trial filed a motion in limine to prevent the State from introducing the evidence of alcohol and cannabis use. [119 Ill.App.3d 736] The defense contends that such evidence is not admissible unless supported by evidence showing that his mental or physical faculties were impaired. The State takes the position that as long as it did not allege intoxication in charging the offense or tender an instruction thereon, it did not have to prove intoxication and argues further that it did not imply that he was intoxicated. The State contends that the proof of drinking and smoking the cannabis, alone, were relevant to the issue of recklessness. On this point the State relies upon People v. Farris (1980), 82 Ill.App.3d 147, 37 Ill.Dec. 627, 402 N.E.2d 629, and People v. Chew (1977), 45 Ill.App.3d 1024, 4 Ill.Dec. 481, 360 N.E.2d 417. These cases would appear to be inapposite, as in them both, the defense failed to object to the introduction of this evidence, and further in Farris there appeared to be a heavy consumption of alcohol.

There appears to be no Illinois authority precisely dealing with the issue of whether a negligible consumption of intoxicants is relevant to the issue of recklessness without a further showing that defendant was intoxicated or this consumption impaired his faculties.

A person commits reckless conduct where he "causes bodily harm to or endangers the bodily safety of an individual by any means * * * if he performs recklessly the acts which cause the harm or endangers safety, whether they otherwise are lawful or unlawful." (Ill.Rev.Stat.1981, ch. 38, par. 12-5(a).) A person performs acts recklessly "when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will

Page 132

[75 Ill.Dec. 342] follow * * * and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." (Ill.Rev.Stat.1981, ch. 38, par. 4-6.) The mental state of recklessness is to be inferred from all of the facts and circumstances in the record and whether the given conduct is reckless is a fact question for the jury to decide. People v. Hawn (1981), 99 Ill.App.3d 334, 338, 54 Ill.Dec. 807, 425 N.E.2d 1024.

Evidence of intoxication is permissible in criminal prosecutions charging recklessness, and is probative of this issue. People v. Davis (1982), 105 Ill.App.3d 129, 133, 61 Ill.Dec. 76, 434 N.E.2d 13; People v. Farris (1980), 82 Ill.App.3d 147, 156, 37 Ill.Dec. 627, 402 N.E.2d 629; People v. Miller (1979), 75 Ill.App.3d 775, 778, 31 Ill.Dec. 581, 394 N.E.2d 783.

In civil litigation it is impermissible to make innuendos of intoxication or otherwise offer evidence of drinking unless there is offered evidence of actual intoxication. (Benuska v. Dahl (1980), 87 Ill.App.3d 911, 914, 43 Ill.Dec. 249, 410 N.E.2d 249.) There must be a showing that the conduct of the...

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16 practice notes
  • People v. Paarlberg, 3-92-0431
    • United States
    • United States Appellate Court of Illinois
    • April 9, 1993
    ...these categories; however, cases that do not fall into at least one of them have not survived appellate review. People v. Gosse (1983), 119 Ill.App.3d 733, 75 Ill.Dec. 339, 457 N.E.2d 129 (accident but lack of evidence that defendant was intoxicated or aware of loose gravel on road); People......
  • People v. Ford, 3–13–0650.
    • United States
    • United States Appellate Court of Illinois
    • February 22, 2016
    ...risk likely to cause bodily harm such that a reasonable person would have acted differently in the same situation. People v. Gosse, 119 Ill.App.3d 733, 738–39, 75 Ill.Dec. 339, 457 N.E.2d 129 (1983). The mental state of recklessness is to be inferred from all of the facts and circumstances ......
  • People v. Barham, 5-02-0047.
    • United States
    • United States Appellate Court of Illinois
    • April 1, 2003
    ...of the driver and his manner of operating the vehicle. Smith, 149 Ill.2d at 565, 174 Ill.Dec. 804, 599 N.E.2d at 891; People v. Gosse, 119 Ill.App.3d 733, 738, 75 Ill.Dec. 339, 457 N.E.2d 129, 133 (1983). Proof of negligence alone cannot sustain a finding of recklessness. Gosse, 119 Ill. Ap......
  • State v. Cameron, 2015-366
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 23, 2016
    ...under the influence to such a degree that he was unable to drive safely. Id. at 476-77, 438 A.2d at 1124-25; see also People v. Gosse, 457 N.E.2d 129, 132 (Ill. 1983) (holding evidence of alcohol and drug use cannot be admitted to support charge of reckless conduct without other evidence ty......
  • Request a trial to view additional results
16 cases
  • People v. Paarlberg, 3-92-0431
    • United States
    • United States Appellate Court of Illinois
    • April 9, 1993
    ...these categories; however, cases that do not fall into at least one of them have not survived appellate review. People v. Gosse (1983), 119 Ill.App.3d 733, 75 Ill.Dec. 339, 457 N.E.2d 129 (accident but lack of evidence that defendant was intoxicated or aware of loose gravel on road); People......
  • People v. Ford, 3–13–0650.
    • United States
    • United States Appellate Court of Illinois
    • February 22, 2016
    ...risk likely to cause bodily harm such that a reasonable person would have acted differently in the same situation. People v. Gosse, 119 Ill.App.3d 733, 738–39, 75 Ill.Dec. 339, 457 N.E.2d 129 (1983). The mental state of recklessness is to be inferred from all of the facts and circumstances ......
  • People v. Barham, 5-02-0047.
    • United States
    • United States Appellate Court of Illinois
    • April 1, 2003
    ...of the driver and his manner of operating the vehicle. Smith, 149 Ill.2d at 565, 174 Ill.Dec. 804, 599 N.E.2d at 891; People v. Gosse, 119 Ill.App.3d 733, 738, 75 Ill.Dec. 339, 457 N.E.2d 129, 133 (1983). Proof of negligence alone cannot sustain a finding of recklessness. Gosse, 119 Ill. Ap......
  • State v. Cameron, 2015-366
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 23, 2016
    ...under the influence to such a degree that he was unable to drive safely. Id. at 476-77, 438 A.2d at 1124-25; see also People v. Gosse, 457 N.E.2d 129, 132 (Ill. 1983) (holding evidence of alcohol and drug use cannot be admitted to support charge of reckless conduct without other evidence ty......
  • Request a trial to view additional results

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