People v. Agnew-Downs , 404 Ill. App. 3d 218 ( 2010 )


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  •                                 No. 2-09-1196  Filed: 9-16-10
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    SECOND DISTRICT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
    OF ILLINOIS,                           ) of De Kalb County.
    )
    Plaintiff-Appellee,              )
    )
    v.                                     ) No. 08--CM--1548
    )
    ELLIS AGNEW-DOWNS,                     ) Honorable
    ) Leonard J. Wojtecki,
    Defendant-Appellant.             ) Judge, Presiding.
    ______________________________________________________________________________
    JUSTICE BOWMAN delivered the opinion of the court:
    Following an altercation at a college dance, defendant, Ellis Agnew-Downs, was convicted
    of resisting a peace officer (720 ILCS 5/31--1(a) (West 2008)) and unlawful consumption of alcohol
    by a minor (235 ILCS 5/6--20 (West 2008)). For the resisting a peace officer conviction, defendant
    received 18 months' conditional discharge, 2 days' incarceration, and a fine. For the unlawful
    consumption of alcohol conviction, defendant received 18 months' court supervision. Defendant
    appeals both convictions, and we affirm.
    I. BACKGROUND
    In relation to the incident, defendant was charged by complaint with two counts on October
    6, 2008. Count I alleged that defendant "knowingly resisted the performance of Jefferey Riddell of
    an authorized act within his official capacity, being the arrest of [defendant], knowing Jefferey
    Riddell to be a peace officer engaged in the execution of his official duties, in that he pushed, shoved
    No. 2--09--1196
    Jefferey Riddell." Count II alleged that defendant, a person under the age of 21, knowingly
    consumed an alcoholic liquor.
    A two-day bench trial commenced on July 7, 2009. Jefferey Riddell, an officer at Northern
    Illinois University, testified first as follows. Riddell had worked as an officer for the university
    about eight months at the time of the incident, which occurred on September 27, 2008. On that date,
    Officer Riddell, who was in uniform, supervised the pat-down area for a dance event at the recreation
    center. Inside the recreation center, a hallway led to the gymnasium, where the dance was held. The
    entrance to the gym consisted of two sets of doors separated by a concrete divider. Attendees could
    freely enter and exit either set of doors.
    Around 12:20 a.m., Officer Riddell saw that a student, later identified as Allen, was
    "extremely intoxicated"; he could barely stand up and was vomiting. Based on Allen's condition,
    another officer ordered an ambulance. Defendant first came to Officer Riddell's attention when
    defendant tried to remove Allen from the dance. Defendant was yelling that Allen was "all right"
    in order to prevent Allen from leaving in an ambulance, and defendant was physically removing
    Allen from the building. Although Officer Riddell's supervisor had instructed him to cancel the
    ambulance, dispatch advised Officer Riddell that it was too late to cancel because the ambulance was
    already on its way. Someone must have communicated this information to defendant, because
    defendant ceased attempting to help Allen out of the building. Allen sat down in a chair near the
    entrance to the gym and began vomiting profusely all over the floor.
    Defendant and another student, later identified as Marcus Ward, were in the same area as
    Allen "and for some reason were becoming extremely belligerent, being loud and very vocal." A
    female officer, Weyni Langdon, and a female sergeant, Lucinda Brunner, were trying to calm the
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    No. 2--09--1196
    situation, but Ward was becoming extremely agitated. Officer Riddell felt that Ward might strike
    one of the students or one of the officers, and that he needed to escort Ward from the dance to defuse
    the situation. Officer Riddell instructed Ward that he would need to leave based on his behavior,
    and Ward was "extremely compliant," agreeing to leave with his girlfriend, Kristin Lee.
    To exit the building, it was necessary to go through the doors to the gym, and then across the
    gym to an exit door. Officer Riddell wanted to make sure that Ward and Lee exited the building
    rather than just mingling back into the crowd in the gym. As Officer Riddell proceeded to escort the
    two out, defendant forced his way between Officer Riddell and Ward and Lee, blocking the left set
    of doors to the gym. Defendant "came from [Officer Riddell's] right side and wedged himself
    between" Officer Riddell and Ward and Lee, "placing his body with his back towards [Officer
    Riddell] and sticking his arms out." Defendant then took a couple of steps back and forced his body
    into Officer Riddell, pushing Officer Riddell back. The force was enough to displace Officer
    Riddell's body but not knock him over. Next, defendant grabbed hold of the "door jamb itself, the
    doorway entrance" to the gym and blocked Officer Riddell's ability to move forward and escort the
    two out. While doing this, defendant was telling Ward and Lee to "Go. Go. Go." Officer Riddell
    admitted that his police report did not include defendant's statement to "Go. Go. Go." On cross-
    examination, Officer Riddell conceded that he did not simply walk around to the right set of doors
    to the gym to escort Ward and Lee out of the dance. However, Officer Riddell explained that he
    could not ignore the fact that defendant had physically pushed him.
    Officer Riddell advised defendant that he needed to get out of the way so that Officer Riddell
    could "escort those individuals out." Defendant either refused or ignored him. Officer Riddell
    admitted that he never had a "direct conversation" with defendant or made direct eye contact. As
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    No. 2--09--1196
    Officer Riddell instructed defendant to release himself from the door and let Officer Riddell go by,
    defendant failed to comply. Officer Riddell then told defendant that defendant needed to leave the
    area and be escorted out too. With defendant still "maintaining hold," Officer Riddell, using his left
    hand, grabbed defendant's left arm just above the wrist and placed his right arm on the back of
    defendant's triceps. On cross-examination, Officer Riddell testified that he was not arresting
    defendant at that time; his intent was to "just escort [defendant] from the dance as well."
    At this point, defendant broke away from Officer Riddell and somehow knocked down
    Officer Heard, who was nearby. Officer Riddell thought that defendant used his hands to knock
    Officer Heard out of the way; defendant knocked him down intentionally. Officer Riddell "had to
    get control" of defendant to prevent him from assaulting Officer Heard while he was on the ground.
    At this time, Officer Riddell noticed Officer Heard's baton, still collapsed, rolling around on the
    ground. Officer Riddell did not know whether the baton just fell off of Officer Heard's belt or
    whether defendant was trying to disarm Officer Heard. Officer Riddell grabbed defendant by
    wrapping his arms around the front of defendant's arms and interlocking his hands behind
    defendant's back. Officer Riddell then pulled his own weight up to get defendant off of Officer
    Heard and stand him up. During this time, defendant continued to resist and fight with Officer
    Riddell and to try to free himself from Officer Riddell's hold. In particular, defendant was
    "motioning his body back and forth trying to buck [Officer Riddell] off of him." In addition to the
    officers already present, who included Officers Riddell, Heard, and Langdon and Sergeant Brunner,
    two more officers came onto the scene. All of the officers were in uniform.
    Officer Riddell was then asked what happened "after [he] had grabbed a hold of the
    defendant and he was trying to resist [him] for a second time." Officer Riddell explained that he was
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    able to turn them around in order to get back into the hall area, which was less crowded. Defendant
    then "pushed" the two of them "back into a set of lockers" that lined the wall along the hallway.
    Officer Riddell still had hold of defendant's arms as defendant continued to try "to break himself
    free." Officer Heard and Sergeant Brunner helped gain control of defendant. Officer Riddell
    determined that defendant needed to be handcuffed to "get him to stop resisting, and to prevent the
    chance of harming any of the officers and/or anyone else in the area." Officer Riddell's grip on
    defendant still gave defendant the use of his lower arms. As a result, Officer Riddell "made the
    determination" that they were going to have to get defendant down onto the ground "in a prone
    position" in order to handcuff him, "as he was continuing to resist the entire time." The officers got
    defendant to the ground and handcuffed him. Next, Officer Riddell got defendant up, walked him
    outside, and explained that he was under arrest for resisting a peace officer. While talking to
    defendant, Officer Riddell noticed the odor of alcohol on his breath.
    On cross-examination, Officer Riddell testified that defendant should not have come into
    contact with Allen's vomit during the altercation, because the vomit was against the left wall, and
    the lockers that they ended up against were on the right wall.
    Sergeant Jason John, who was on duty outside the dance at the time of the incident, testified
    next as follows. After Officer Heard advised him that there was an altercation inside, Sergeant John
    went inside "towards the middle to the end of this incident." He observed Officer Riddell instruct
    defendant to let go of a crash door that led into the dance. It was hard to describe what part of the
    door defendant was holding onto; Sergeant John thought it was the edge of the door. Officer Riddell,
    who was trying to get inside the gym, told defendant to let go of the door two or three times.
    Defendant was "very loud and very angry with Officer Riddell." Sergeant John recalled that Ward's
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    No. 2--09--1196
    girlfriend Lee yelled something and that then defendant pulled away from Officer Riddell, who had
    defendant by the arm. Defendant pushed back Officer Riddell, who was behind him, and he pushed
    Officer Heard, who was in front of him.
    Officer Daniel Leifker handled the booking process for defendant's arrest. Though defendant
    denied drinking, Officer Leifker smelled a strong odor of alcohol on his breath, and defendant's eyes
    were glassy, red, and bloodshot.
    Defendant testified as follows. He arrived at the dance around midnight and had not been
    drinking earlier. Defendant's friends told him that some guy named Allen, defendant did not know
    his last name, was not feeling well. Because Allen was "dazed," defendant thought he was
    intoxicated. Defendant talked to Allen "for a second." Defendant thought Allen was not in any
    condition to enjoy the dance, so he wanted to arrange for a mutual acquaintance to pick up Allen.
    As defendant was helping Allen walk towards the exit, a few officers advised defendant that he could
    not take Allen from the dance. The officers did not explain why, and Derrick Smith, a professor at
    the university who was chaperoning the event, told defendant to help get Allen out of the building.
    Defendant understood from the officers that he would get in trouble or arrested if he did not
    relinquish Allen, however, so he did. Allen then sat down in a chair and began vomiting some more.
    Defendant, who was standing near the "left-most door" to the gym, discussed the matter with
    Smith and some friends as they waited for the ambulance to arrive. Ward, who lived in defendant's
    neighborhood, was another concerned friend of Allen's. Defendant denied that he and Ward became
    belligerent with each other; defendant was "an associate" of Ward. Although he did not come to the
    dance with Ward, they stood in line together. Defendant was not aware that Ward had been asked
    to leave, because defendant was talking with Smith about Allen's situation. Defendant was talking
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    with some friends when he "was just kind of brushed up against on the back and kind of grabbed."
    Defendant "yanked" and "looked back like to figure out what was going on and this officer was
    trying to" arrest him. The officer "had his cuffs out trying to get" defendant. Defendant was "caught
    off guard" when Officer Riddell grabbed him from behind. Although defendant may have grabbed
    the door initially to see what was going on, he did not continually hold on to the door. Officer
    Riddell did not say anything to defendant prior to grabbing his arm. Defendant did not know that
    Officer Riddell was behind him until Officer Riddell grabbed his arm. None of the officers told
    defendant that he was under arrest; they told defendant that he was being escorted from the dance.
    Defendant denied blocking Officer Riddell or standing between Officer Riddell and Ward and Lee;
    he denied interfering with Officer Riddell in any way.
    Officer Heard then came on the scene and tried to "take" defendant "down" a few times. The
    first time Officer Heard lunged at defendant, defendant moved out of the way, causing Officer Heard
    to miss him. Defendant did not know if Officer Heard fell down. Officer Heard then became "more
    angry" and hit defendant in the leg a few times with the baton. Defendant never pushed Officer
    Heard or knocked him down. Two more officers assisted in getting defendant to the ground.
    Defendant never pushed any of the officers; he was "simply trying to avoid" being thrown into a
    "puddle of throw-up." Defendant did not know how he smelled of alcohol unless there was some
    alcohol on his clothes, or unless the odor came from some of the vomit that had gotten on his
    clothes.
    Derrick Smith, a teacher and counselor at the university, testified as follows. Initially, Smith
    advised defendant to help his friend Allen, who was intoxicated, out of the dance. Smith then heard
    Sergeant Brunner telling defendant that he could not take Allen out of the building, because doing
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    so would create a liability for the university. Based on this information, Smith pulled defendant
    aside and apologized for giving him incorrect advice. Defendant "backed off" and helped Allen sit
    down in a chair. After that, another "guy," whom Smith did not know, came out "screaming and
    hollering and cursing" at the police officer and Smith. The guy pushed a "young lady out of the way"
    and was apparently "trying to defend" Allen, who was in the chair. Smith and defendant were talking
    in the doorway of the gym when they heard a police officer say, " 'I told you to leave twice.' " Smith
    replied, " 'We didn't do anything,' " and defendant said, " 'All you had to do was ask me to move.' "
    Then, another officer rushed from the side and said, " 'You heard what he said,' " and he "went to
    grab" defendant. Both of the officers converged on defendant. Smith tried to tell the officers that
    this was not necessary and that they should let Smith talk to defendant. When one of the officers
    almost fell down, the officer gave Smith a "little look," so Smith "knew what was going on," and he
    backed up and let the officers continue. The officers put defendant's arms behind his back. All the
    while, defendant was calling on Smith and asking the officers what they were doing. When the
    officers got defendant in the hall, one officer kicked defendant's leg four or five times in order to
    knock defendant down. Defendant fell face down and both of the officers jumped on his back and
    handcuffed him. Defendant was not told he was under arrest until after he was handcuffed. Smith
    denied that defendant blocked the officers from going in the gym, and he denied that defendant
    placed himself between the police and other people at the dance.
    Patrick Thomas testified that he went to the dance with defendant. Both of them tried to
    escort Allen out of the dance until they were instructed by police not to do so. After that, Thomas,
    defendant, and Smith were standing in the hall near the doorway to the gym. Then, down the hall
    there was a scuffle that moved in their direction. Thomas saw that an officer "had come into contact
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    with [defendant] and very quickly the contact turned from maybe a couple words being exchanged
    to a very like violent attack on" defendant. Defendant did not push or shove any of the officers or
    prevent any of them from entering the gym; he was just standing there. Thomas testified that
    "[m]aybe the officer was trying to come through the door and instead of wanting to go around or
    anything he just wanted to move [defendant] out of the way." Defendant did not put up a fight about
    moving out of the way. Thomas thought that the officer was trying to "slam [defendant] into the
    vomit, for no particular reason, from behind." After the first officer got physical, another officer got
    violent after he could not shove defendant into the vomit. At this point, defendant had surrendered.
    Three officers put their knees on defendant's back and used their batons to hit his legs while he was
    on the ground.
    During the State's argument, the State maintained that defendant did not have to be resisting
    arrest; he simply needed to be resisting an authorized act by the officer. The court, however, noted
    that the complaint alleged that defendant had resisted arrest. At what point, the court wanted to
    know, was defendant under arrest, because in "order to resist, one must first be under arrest."
    Defendant similarly argued that the purpose of a charging instrument was to fairly apprise him of
    what he was charged with, and that there was "no indication here that the nature of the criminal
    conduct on the part of the defendant [had] to do with obstructing an officer." During the State's
    rebuttal argument, it argued that Officer Riddell was struggling with defendant, who was pushing
    him; that Officer Riddell had to grab defendant while defendant continued to struggle; and that
    defendant pushed another officer to the ground. The court indicated that its notes showed that the
    pushing and shoving occurred prior to the arrest, and it asked the State to address this issue. The
    State agreed that the formal arrest in which defendant was advised that he was under arrest occurred
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    later. Still, the State argued that the act of taking defendant "into arrest, taking him into custody
    under the statute, started from the very beginning when [defendant] was told, 'Sir, you need to
    move.' " According to the State, defendant did not move out of the way, but started to push Officer
    Riddell back. Then, there was continued pushing after that, in that Officer Riddell put defendant in
    a "bear hug"; defendant continued to push Officer Riddell back against the lockers or the wall; and
    defendant continued to flail his arms and struggle. The court next wanted to know the basis for
    defendant's arrest. The State replied that, at that point, Officer Riddell could have arrested defendant
    for obstructing Officer Riddell's "authorized act" of "trying to get control of the situation" and "do
    crowd control" by escorting out an individual who had "been belligerent."
    The court found defendant guilty of unlawful consumption of alcohol but reserved its ruling
    on the resisting arrest charge. Specifically, the court noted that defendant was not charged with
    pushing down Officer Heard; rather, he was charged with pushing and shoving Officer Riddell in
    the process of being arrested. The court's recollection of the evidence was that "the shoving and
    pushing occurred before the arrest" and thus would not qualify as "resisting according to the
    complaint."
    On August 20, 2009, the parties appeared in court for the ruling on the resisting charge. The
    court stated that it had reviewed the transcript and was finding defendant guilty of resisting a peace
    officer. According to the court, "the resisting occurred after an arrest."
    The parties' agreed-upon sentence was approved by the court, and defendant timely appealed.
    II. ANALYSIS
    A. Resisting a Peace Officer
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    Defendant makes several arguments why the evidence was insufficient to prove him guilty
    beyond a reasonable doubt of resisting a peace officer. A criminal conviction will not be set aside
    unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the
    defendant's guilt. People v. Synnott, 
    349 Ill. App. 3d 223
    , 228-29 (2004). "In reviewing the
    sufficiency of the evidence, 'the relevant question is 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.' " 
    Synnott, 349 Ill. App. 3d at 229
    , quoting People v.
    Collins, 
    106 Ill. 2d 237
    , 261 (1985).
    As previously mentioned, defendant was charged in this case with knowingly resisting the
    performance by Officer Riddell of an authorized act within his official capacity, being the arrest of
    defendant, knowing Officer Riddell to be a peace officer engaged in the execution of his official
    duties, in that he pushed and shoved Officer Riddell. The statute under which defendant was charged
    is section 31--1(a) of the Criminal Code of 1961, which provides: "A person who knowingly resists
    or obstructs the performance by one known to the person to be a peace officer, firefighter, or
    correctional institution employee of any authorized act within his official capacity commits a Class
    A misdemeanor." 720 ILCS 5/31--1(a) (West 2008). The statute prohibits a person from committing
    a physical act of resistance or obstruction--a physical act that impedes, hinders, interrupts, prevents,
    or delays the performance of the officer's duties, such as by going limp or forcefully resisting arrest.
    People v. McCoy, 
    378 Ill. App. 3d 954
    , 962 (2008). "Resisting" or "resistance" means withstanding
    the force or effect of or the exertion of oneself to counteract or defeat. 
    Synnott, 349 Ill. App. 3d at 225
    .
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    Before addressing defendant's arguments, we begin by clarifying the sequence of events, and
    specifically the point at which defendant was arrested. Officer Riddell testified that when defendant
    held on to the door and blocked his ability to escort Ward and Lee from the dance, he grabbed
    defendant's arm and placed his arm on defendant's triceps, not to arrest him, but to escort him from
    the dance as well. Officer Riddell's testimony that he was not arresting defendant at this point
    contradicts the State's answer to the court that the act of arresting defendant "started from the very
    beginning" when defendant was told "to move." In any event, the sequence of events is important
    because defendant focuses many of his arguments on the time period before Officer Riddell placed
    defendant under arrest. Although the trial court recognized that pinpointing the time of arrest was
    crucial in determining whether defendant had in fact resisted arrest, the court did not specify at what
    point defendant was actually under arrest. Still, the court reviewed the transcript and determined that
    the resisting occurred after the arrest, and we are able to infer the time of arrest based on Officer
    Riddell's testimony. According to Officer Riddell, it was not until defendant broke away from him
    and used his hands to knock down Officer Heard that Officer Riddell determined he "had to get
    control" of defendant, which we interpret as arresting defendant. See People v. Washington, 363 Ill.
    App. 3d 13, 23 (2006) (an arrest occurs when a person's freedom of movement is restrained by
    physical force or a show of authority; the test for determining whether a suspect has been arrested
    is whether, in light of the surrounding circumstances, a reasonable, innocent person would have
    considered himself free to leave). After Officer Riddell grabbed hold of defendant the second time,
    defendant "pushed" the two of them into a set of lockers and continued to try to break himself free.
    With this time line in mind, we turn to defendant's first argument, which is that he was not
    aware that Officer Riddell was a peace officer at the time of his alleged resistance. To support his
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    position, defendant contends that Officer Riddell was standing behind him during "the relevant
    stages" of the encounter; Officer Riddell admitted that he never made eye contact with defendant or
    had a direct conversation with him; defendant allegedly ignored Officer Riddell's requests to move
    and did not act in a manner demonstrating that he knew Officer Riddell was a peace officer; and
    defendant was never told he was under arrest until he was in handcuffs. Defendant's argument lacks
    merit.
    First, it is undisputed that Officer Riddell, like the other officers, was in uniform. Second,
    defendant concedes that if Officer Riddell's version of events, which differed dramatically from
    defendant's, was believed, then it would permit the inference that defendant was indeed aware that
    Officer Riddell was a peace officer. At trial, Officer Riddell testified that he "would have to think
    [defendant] saw me as [defendant] positioned himself between Mr. Ward and his girlfriend and
    myself." While the trial court did not express any factual findings in this case, it apparently credited
    Officer Riddell's testimony over defendant's. Third, defendant's own testimony belies the claim that
    he was not aware that Officer Riddell was a peace officer. Defendant testified that he did not know
    Officer Riddell was behind him and that he was caught off guard when Officer Riddell grabbed him
    from behind. However, defendant further testified that when he "looked back to figure out what was
    going on," "this officer was trying to" arrest him. Thus, defendant was aware that Officer Riddell
    was a peace officer.
    In a related argument, defendant challenges Officer Riddell's testimony as incredible and
    contradicted by the overwhelming weight of evidence introduced at trial. According to defendant,
    no other witness confirmed Officer Riddell's version of events whereas defendant, Smith, and
    Thomas all denied that defendant interposed himself between Ward and Lee and Officer Riddell or
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    backed Officer Riddell out of the gym. Also, defendant argues that Sergeant John's version of events
    contradicted that of Officer Riddell; and there was no evidence providing a motive for defendant's
    alleged behavior.
    Determinations of witness credibility, the weight to be given testimony, and the reasonable
    inferences to be drawn from the evidence are responsibilities of the trier of fact, not the reviewing
    court. 
    McCoy, 378 Ill. App. 3d at 962
    . While defendant offered a conflicting version of what
    happened, it was for the trier of fact to determine which version of events to believe. See 
    McCoy, 378 Ill. App. 3d at 963
    (although the defendant presented a different version of events, it was for the
    trier of fact to determine which version of events to believe). In this case, the trial court evidently
    found Officer Riddell's testimony more credible than defendant's, and we cannot say that the
    evidence was so improbable or unsatisfactory that it leaves a reasonable doubt regarding defendant's
    guilt. In addition, it is not accurate to say that Sergeant John's testimony contradicted Officer
    Riddell's testimony. Consistent with Officer Riddell, Sergeant John testified that Officer Riddell
    instructed defendant to let go of the door. While defendant takes issue with Sergeant John's
    description of what part of the door defendant was holding on to, Sergeant John explained that it was
    hard to describe what part of the door defendant was holding on to; he believed that it was the edge
    of the door. Moreover, it is of little consequence that Sergeant John did not witness the entire
    sequence of events leading up to the eventual arrest, because, as previously stated, defendant was
    not under arrest until he broke away and knocked down Officer Heard. Finally, the State was not
    required to prove motive. See People v. Curtis, 
    262 Ill. App. 3d 876
    , 884 (1994) (motive is not an
    essential element of a crime).
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    Defendant next argues that Officer Riddell was not engaged in an authorized act as required
    under the statute, because a "police officer is not authorized to grab a person from behind as a
    substitute to establishing his or her authority and communicating with the person verbally." The
    argument follows that Officer Riddell was not justified in "grabbing [defendant] rather than taking
    5 seconds to walk around to [defendant's] front to have a discussion with him face to face." Once
    again, defendant ignores Officer Riddell's version of events, which the trial court credited, and
    substitutes his own. Officer Riddell testified that based on Ward's "loud" and "belligerent" behavior,
    he advised Ward that he needed to leave. Ward was compliant and agreed to leave with Lee.
    Because Officer Riddell did not want Ward and Lee to blend back in with the crowd, he attempted
    to escort the two out, which he was authorized to do. See People v. Carroll, 
    133 Ill. App. 2d 78
    , 80
    (1971) ("authorized" means endowed with authority). To exit the building, it was necessary to enter
    the gym and walk across it. It was when Officer Riddell was escorting out Ward and Lee that
    defendant wedged himself between them, forced his body into Officer Riddell and pushed him back,
    and then grabbed on to the door to block Officer Riddell's ability to move forward. At this point,
    Officer Riddell advised defendant to get out of the way so that he could escort these individuals out,
    but defendant ignored his request. Logically, Officer Riddell was also authorized to prevent
    defendant from impeding this task. While defendant essentially argues that Officer Riddell's
    response to his conduct was not an authorized act, defendant's argument is dependent on his version
    of the facts, which the trial court rejected.
    Defendant's next argument is that Officer Riddell was not attempting to arrest him when he
    allegedly resisted, and that he did not resist. We are not persuaded. The flaw in defendant's position
    is that he focuses on the wrong part of the time line. It is true that when Officer Riddell grabbed
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    defendant in order to release his hold on the door, Officer Riddell was not attempting to arrest him.
    Rather, Officer Riddell instructed defendant that he needed to leave the dance as well. It is the series
    of events that followed, i.e., defendant breaking away and knocking down Officer Heard, that caused
    Officer Riddell to seize or arrest defendant by wrapping his arms around the front of defendant's
    arms and interlocking his hands behind defendant's back. See City of Champaign v. Torres, 
    214 Ill. 2d
    234, 242 (2005) (an arrest made by a peace officer is an "authorized act" under section 31--1).
    Moreover, even if we assume for argument's sake that the arrest itself was not proper, such a finding
    would have no impact on defendant's conviction of resisting a peace officer. This is because
    resistance of even an unlawful arrest by a known officer is a violation of section 31--1. See Torres,
    
    214 Ill. 2d
    at 242. Although defendant downplays his conduct, Officer Riddell testified that
    defendant continued to resist and fight by "motioning his body back and forth trying to buck [Officer
    Riddell] off of him," and that defendant pushed both him and Officer Riddell back into a set of
    lockers. See 
    McCoy, 378 Ill. App. 3d at 962
    (the acts of struggling or wrestling with a police officer
    are physical acts of resistance that will support a conviction of resisting a peace officer, even if the
    underlying attempted arrest is unwarranted). For this reason, Officer Riddell made the determination
    that defendant needed to be in a prone position on the ground in order to be handcuffed, and it took
    additional officers to accomplish this task. Lastly, defendant's claim that there was no one point
    where he should have known he was under arrest is belied by his testimony that when he looked back
    to see what was going on, an officer was trying to arrest him. In sum, there is ample evidence to
    support the trial court's finding that defendant resisted arrest.
    Defendant's final argument with respect to the resisting a peace officer charge is that he was
    justified in preventing the police from tripping him or throwing him to a hallway floor covered in
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    vomit. On the one hand, defendant concedes that a person is not authorized to use force to resist an
    arrest that he knows is being made by a peace officer, even if he believes that the arrest is unlawful
    and the arrest in fact is unlawful. See 720 ILCS 5/7--7 (West 2008). Defendant cites People v.
    Wicks, 
    355 Ill. App. 3d 760
    , 763 (2005), however, for the proposition that an exception to this
    general rule exists when the officer uses excessive force. In this case, there is no evidence that the
    officers used excessive force. As the Wicks court went on to say, "the officers were entitled to use
    the force required to protect themselves and effect the arrest." 
    Wicks, 355 Ill. App. 3d at 764
    . The
    altercation here began with defendant placing himself between Officer Riddell and Ward and Lee
    and using his body to push back Officer Riddell. After defendant grabbed hold of the door to block
    Officer Riddell from entering the gym, Officer Riddell grabbed defendant's arm and placed his other
    arm on the back of defendant's triceps. It was defendant who broke free and knocked down Officer
    Heard. When Officer Riddell saw Officer Heard's baton on the ground, he restrained defendant to
    prevent defendant from assaulting Officer Heard while he was on the ground. The officers' use of
    greater force was in direct response to defendant's actions. While defendant argues that being
    "thrown" onto a floor with "fresh vomit" justified his conduct, Officer Riddell testified that the vomit
    was a nonissue because it was located in a different area from the altercation. Viewing the evidence
    in the light most favorable to the State, defendant's argument fails.
    B. Consuming Alcohol as a Minor
    Defendant's last argument on appeal is that there was insufficient evidence to convict him
    of consuming alcohol as a minor. We agree with the State that defendant has forfeited this issue for
    failing to develop the argument and support it with legal authority. See Sakellariadis v. Campbell,
    
    391 Ill. App. 3d 795
    , 804 (2009) (the failure to assert a well-reasoned argument supported by legal
    -17-
    No. 2--09--1196
    authority is a violation of Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)), resulting in
    forfeiture).
    III. CONCLUSION
    For the aforementioned reasons, the judgment of the circuit court of De Kalb County is
    affirmed.
    Affirmed.
    SCHOSTOK, J., concurs.
    JUSTICE O'MALLEY, specially concurring:
    Under the facts as the trial court and the majority resolve them, there is no question that
    Riddell's removing defendant from the dance constituted "an authorized act within [Riddell's] official
    capacity," so that, regardless of how Riddell's actions may be classified, defendant's conduct supports
    a conviction of resisting a peace officer (720 ILCS 5/31--1(a) (West 2008)). The only reason the trial
    court and the majority require Riddell's actions to have amounted to an "arrest" is that the charging
    instrument described the authorized act that defendant resisted as Riddell's "arrest of [defendant]"
    on the date of the dance event.
    As the majority notes, an "arrest" occurs when a person's freedom of movement is restrained
    by physical force or a show of authority, and the test for determining whether a suspect has been
    arrested is whether, in light of the surrounding circumstances, a reasonable, innocent person would
    have considered himself free to leave. Slip op. at 10, citing 
    Washington, 363 Ill. App. 3d at 23
    ; see
    also In re J.W., 
    274 Ill. App. 3d 951
    , 957-58 (1995) ("A person has been arrested when his or her
    freedom of movement has been restrained by means of physical force or a show of authority"). Thus,
    the word "arrest" is, at least for fourth amendment purposes, "synonymous with" the concept of a
    -18-
    No. 2--09--1196
    seizure. 
    J.W., 274 Ill. App. 3d at 957
    . Under these definitions, the word "arrest" exactly describes
    Riddell's interaction with defendant from the point he took defendant's arm and ordered him to leave.
    The complaint could have said that defendant resisted Riddell's lawful act, "to wit, Riddell's use of
    force to control defendant's movement," or it could have just used the shorthand "arrest" to describe
    the same thing. I see no problem with the State's choosing the latter option. Accordingly, I disagree
    with the majority that we must determine precisely when defendant was placed under formal arrest.
    I would hold that, regardless of whether defendant was formally arrested when he pushed Riddell,
    he was arrested in the sense that he was seized when he pushed Riddell.
    The approach of requiring a formal arrest departs from the above definition of "arrest" and
    introduces unnecessary confusion into this case. While there is in some contexts a distinction
    between a formal arrest and a lesser seizure (such as a Terry stop (Terry v. Ohio, 
    392 U.S. 1
    , 20 L.
    Ed. 2d 889, 
    88 S. Ct. 1868
    (1968))) or a community caretaking stop (People v. Luedemann, 
    222 Ill. 2d
    530 (2006)), those distinctions have no bearing on this case. The stop/arrest dichotomy is
    relevant to determine the length and scope of an investigation that police may impose on a seized
    individual, but there is no distinction between the force permissible to effect a stop and that
    permissible to effect an arrest. See People v. Chavez, 
    327 Ill. App. 3d 18
    , 31 (2001) ("An
    'investigatory stop is not transformed into an arrest by the officers using force' " and " 'it is the length
    of detention and the scope of investigation that distinguish an arrest from a stop' "), quoting People
    v. Moore, 
    294 Ill. App. 3d 410
    , 415 (1998), and People v. Young, 
    306 Ill. App. 3d 350
    , 354 (1999).
    The encounter between Riddell and defendant did not involve an investigation; it was limited to
    Riddell's using the force necessary to seize defendant. Therefore, the stop/arrest dichotomy has no
    relevance here. From the moment Riddell began to use force to control defendant's movement,
    -19-
    No. 2--09--1196
    defendant was arrested in the sense that he was seized, and it does not matter if that seizure could
    have justified a more searching accompanying investigation than could a stop.
    It is likely true that, if defendant had complied with Riddell from the start, the situation
    would have diffused, and defendant would not have been formally arrested. The fact that Riddell
    initially did not intend to formally arrest defendant, however, does not change the analysis. Indeed,
    even if defendant resisted in the same manner as the facts here indicate, but Riddell declined to
    formally arrest him, defendant's actions still would have amounted to resistance to Riddell's attempt
    to arrest him (i.e., seize him by removing him from the dance). That the encounter evolved from a
    seizure-arrest to a formal arrest does not render irrelevant defendant's conduct prior to the formal
    arrest.
    Further, the charging instrument in this case would make very little sense if its use of the
    word "arrest" were understood to refer only to a formal arrest, and not to a seizure. It was only after
    defendant's physical resistance that Riddell resolved to place defendant under formal arrest. In fact,
    defendant's resistance was the ground for the formal arrest. If defendant was not under formal arrest
    until after he resisted, then how could Riddell have arrested him for "resisting arrest"? My broader
    reading of the word "arrest" as meaning "seizure" in the charging instrument is also by far the more
    likely interpretation under the facts of this case. The complaint against defendant was premised on
    his "push[ing], shov[ing] [Jefferey] Riddell" on the date of the dance. This language is a clear
    reference to the evidence that defendant pushed Riddell after Riddell took him by the arm to escort
    him from the dance, and it leaves no confusion as to the misconduct that defendant was alleged to
    have committed.
    -20-
    No. 2--09--1196
    In my view, the word "arrest" as it is used in this case refers to a seizure, not to a formal
    arrest. Thus, it should be enough to say that the evidence here showed that defendant resisted while
    Riddell was trying to remove him from the dance, regardless of whether Riddell's actions amounted
    to a formal arrest or some lesser seizure. Although the trial court based its finding of guilt on the
    idea that defendant committed acts of resistance after his formal arrest, its finding in the State's favor
    leaves no doubt that it would also have convicted defendant if it had read the complaint as I would
    read it, to refer to defendant's pushing or shoving Riddell at some point during their encounter.
    Thus, I would affirm the trial court's judgment on the basis I describe above.
    -21-
    

Document Info

Docket Number: 2-09-1196 NRel

Citation Numbers: 404 Ill. App. 3d 218

Filed Date: 9/16/2010

Precedential Status: Non-Precedential

Modified Date: 1/12/2023