                                No. 2-08-0760  Filed: 6-11-10
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of McHenry County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 07--CF--616
                                       )
CHAD L. HAGLER,                        ) Honorable
                                       ) Sharon L. Prather,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the opinion of the court:

       Chad L. Hagler appeals his convictions of aggravated battery of a police officer (720 ILCS

5/12--4(b)(18) (West 2006)), a Class 2 felony (720 ILCS 5/12--4(e)(2) (West 2006)), and resisting

or obstructing a peace officer and proximately causing injury, a Class 4 felony (720 ILCS

5/31--1(a--7) (West 2006)), contending that he could not be convicted of both under the one-act,

one-crime doctrine. Because section 31--1(a--7) requires the act of resisting to also be the act that

proximately caused the injury, and there was only one act supporting that charge and the battery

charge, we vacate Hagler's conviction of resisting a peace officer.

                                        I. BACKGROUND

       In 2007, Hagler was indicted on charges arising from a May 22, 2007, incident at his home.

Count I of the indictment alleged that he committed aggravated battery in that he:
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                "knowingly caused bodily harm to Nicholas Clesen, in that said defendant slammed

        a door onto Nicholas Clesen, resulting in Nicholas Clesen's right hand and forearm going

        through a pane of glass in the door, causing severe lacerations to Nicholas Clesen's fingers

        and forearm, knowing Nicholas Clesen to be a peace officer engaged in the execution of his

        official duties."

        Count II alleged that he resisted a peace officer when he:

                "knowingly resisted the performance of Nicholas Clesen of an authorized act within

        his official capacity, being the arrest of Chad L. Hagler, knowing Nicholas Clesen to be a

        peace officer engaged in the execution of his official duties, in that the said defendant ran and

        slammed a door and refused to be handcuffed and defendant's actions was [sic] the proximate

        cause of injury to officer Clesen's arm."

        A jury trial was held, and Clesen testified that he was dispatched to Hagler's home after

Hagler's ex-wife reported that Hagler sent suicidal instant messages to their children. Dispatch also

informed Clesen that Hagler might have had an order of protection prohibiting him from

communicating with his children. Another officer, Mark Gandor, was separately dispatched to the

home.

        The front of Hagler's home had three stairs leading to a screened-in porch with a screen door.

About six feet beyond the screen door was a front door with glass panes. The officers knocked on

both doors, and when there was no answer for several minutes, Clesen went to the back door. Clesen

heard Gandor yell that Hagler was coming out of the front door. Clesen walked back around the

corner of the house and saw Hagler standing on the steps, speaking with Gandor. Clesen and Gandor




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then spoke with Hagler. During that time, Hagler had his hand on the door, holding it partially open.

Clesen was about five feet away at the time.

       Clesen testified that, during the conversation, he asked Hagler to step down, but Hagler

refused. Hagler then admitted to having sent his mother-in-law an instant message that threatened

suicide. Clesen confirmed with dispatch that there was an order of protection in place and that it had

been served on Hagler. After receiving confirmation, he believed that he had probable cause to arrest

Hagler for violating the order of protection and to protect Hagler because of his threats of suicide.

       Clesen told Hagler to step down the stairs because he was going to arrest him, and he took

a step toward Hagler. Hagler then took a step backward, and as Clesen attempted to grab him,

Hagler ran back toward the open front door. Clesen ran after Hagler to try to arrest him, but Hagler

continued to run toward the door. Clesen said he was about a step behind Hagler the entire time.

Hagler stepped into the home, turned around, placed both hands on the door, and began to shut it

while Clesen was running to stop him. As Clesen placed his hand out to try to stop the door, his hand

and arm went through a pane of glass, cutting his finger and arm. Hagler was later found in an

upstairs closet, bleeding from an allegedly self-inflicted wound to his arm. A few hours after the

incident, Clesen learned that Hagler had not been served with an order of protection at the time of

the arrest. When asked on cross-examination about the charges, Clesen stated that they both

stemmed from the same door incident.

       Gandor generally testified in conformance with Clesen. Gandor also testified that when

Hagler started to go back up the stairs and run into the house, Clesen told him to stop and come back

down. Gandor did not know if Clesen previously told Hagler that he was under arrest.




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       Hagler testified that, on the day of the incident, he started to exchange instant messages with

his mother-in-law and that he indicated in one of them that he would harm himself. He also testified,

however, that he was not actually suicidal and was seeking to persuade his wife not to proceed with

a divorce. Hagler said he stepped outside to speak to the responding officers and that, when an order

of protection was mentioned, he had no idea what they were talking about. Hagler stated that he

heard a car door slam and saw Clesen approaching him, screaming that Hagler knew there was an

order of protection and that the person who served it would be there in five minutes. Hagler said

that, if that person was going to be there in five minutes, then he (Hagler) was not going to be there

until then. According to Hagler, he then turned around, walked into the house, closed the door, and

locked it. Hagler testified that he did not know Clesen was behind him and that, as he was locking

the door, Clesen's hand came through the glass. He denied that he then used a box cutter to injure

himself, stating that he got cut when Clessen broke the pane in the door. However, he admitted that

he hid in the closet from the police.

       There was no evidence that Hagler resisted being handcuffed. During opening and closing

arguments, the State argued to the jury that Hagler resisted arrest by running away when told to stop

and that he committed battery when he slammed the door, causing injury to Clesen.

       The jury found Hagler guilty on both counts. Hagler never objected under the one-act, one-

crime doctrine, and no posttrial motions were filed. Hagler was sentenced to probation, and he

appeals.

                                           II. ANALYSIS




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       Hagler contends that the charges were based on the single act of slamming the door and that,

under the one-act, one-crime doctrine, it was plain error for the court to enter convictions on both

counts. Thus, he asks that we vacate his conviction of resisting a peace officer.

       Hagler was charged with aggravated battery, which required the State to show that he

intentionally or knowingly, without legal justification and by any means, caused bodily harm to an

individual or made physical contact of an insulting or provoking nature with an individual (720 ILCS

5/12--3(a) (West 2006)), and that he knew the individual to be an officer (720 ILCS 5/12--4(b)(18)

(West 2006)). He was also charged with resisting or obstructing a peace officer, which required the

State to show that he knowingly resisted or obstructed the performance of a person known to be a

peace officer of any authorized act within his official capacity. 720 ILCS 5/31--1(a) (West 2006).

Section 31--1(a--7) provides that a person convicted of a violation of section 31--1(a) "whose

violation was the proximate cause of an injury to a peace officer is guilty of a Class 4 felony." 720

ILCS 5/31--1(a--7) (West 2006). Hagler was convicted and sentenced under that section.

       Hagler concedes that he forfeited the issue by failing to object at trial and failing to include

the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 187 (1988). However, he requests

that we review the matter for plain error. The plain-error rule is a limited exception to the forfeiture

rule and may be invoked only if the evidence is closely balanced or if the alleged error is so

fundamental that it may have deprived the defendant of a fair trial or sentencing hearing. People v.

Herrett, 137 Ill. 2d 195, 209-10 (1990). "[F]orfeited one-act, one-crime arguments are properly

reviewed under the second prong of the plain-error rule because they implicate the integrity of the

judicial process." People v. Nunez, 236 Ill. 2d 488, 493 (2010), citing People v. Artis, 232 Ill. 2d




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156, 167-68 (2009). Allegations that a defendant's convictions violate the one-act, one-crime rule

are reviewed de novo. People v. Boyd, 307 Ill. App. 3d 991, 998 (1999).

        "The one-act, one-crime doctrine, articulated in People v. King, 66 Ill. 2d 551, 566 (1977),

provides that multiple convictions are improper where (1) only one physical act was manifested, or

(2) multiple acts were manifested, but some of the convictions are for included offenses." People v.

Isunza, 396 Ill. App. 3d 127, 133 (2009). The rule requires a two-part analysis. "A court must first

determine whether a defendant's conduct consisted of separate acts or a single physical act." Isunza,

396 Ill. App. 3d at 133; see People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). An act is defined as

" 'any overt or outward manifestation which will support a different offense.' " Rodriguez, 169 Ill.

2d at 188, quoting King, 66 Ill. 2d at 566. "If only one physical act was undertaken, multiple

convictions are improper. If separate acts were undertaken, a court must then ask whether any of

the offenses are included offenses. If so, multiple convictions are improper." Isunza, 396 Ill. App.

3d at 133, citing Rodriguez, 169 Ill. 2d at 186. If a defendant is convicted of more than one crime

arising out of the same act, the court must reverse all of the "same act" convictions except the most

serious one. People v. Lee, 213 Ill. 2d 218, 226-27 (2004).

        Some appellate courts have applied a six-part test, first enunciated in People v. Baity, 125 Ill.

App. 3d 50 (1984), to determine whether there was a single act: "the existence of an intervening act

or event; the time interval between successive parts of defendant's conduct; the identity of the victim;

the similarity of the acts performed; whether the conduct occurred at the same location; and

prosecutorial intent as reflected in the charging instrument." Rodriguez, 169 Ill. 2d at 188, citing

Baity, 125 Ill. App. 3d at 52-54. However, our supreme court has declined to address the merits of

this test and has given the following caution: "a court must not lose sight of the forest for the trees.



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The definition of an 'act' under the King doctrine remains simply what this court stated in King: 'any

overt or outward manifestation which will support a different offense.' " Rodriguez, 169 Ill. 2d at

188, quoting King, 66 Ill. 2d at 566.

       When a common act is part of both offenses, or is part of one offense and the only act of

another, multiple convictions can still stand. The key point is whether there is an "act" under King

that will support a different offense. For example, in People v. Marston, 353 Ill. App. 3d 513, 515

(2004), the defendant broke through the window of his girlfriend's bedroom and struck a man there

with a metal pole. A count charging the defendant with home invasion alleged that the defendant

" 'knowingly and without authority, entered the dwelling place of [the girlfriend], *** knowing [the

man] to be present within that dwelling place and intentionally caused injury to [the man], in that he

struck [the man] about the body with a metal pole." (Emphasis in original.) Marston, 353 Ill. App.

3d at 517. Another count, charging the defendant with aggravated battery, provided that the

defendant, " 'in committing a battery, *** without legal justification, and by use of a deadly weapon,

knowingly caused bodily harm to [the man], in that he struck [the man] about the body with a metal

pole.' " (Emphasis in original.) Marston, 353 Ill. App. 3d at 517.

       The defendant was convicted on both counts and, on appeal, he argued that his conviction of

aggravated battery must be vacated because it was based on the same physical act as the home

invasion--striking the man with a metal pole. Marston, 353 Ill. App. 3d at 517. We disagreed,

holding that a defendant can be convicted of two offenses even when a common act is part of both

offenses or when the common act is part of one offense and the only act of the other offense.

Marston, 353 Ill. App. 3d at 518. Thus, the conviction of aggravated battery could stand, even

though striking the man with the metal pole was the only act of that offense and the same striking of



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the same man was also part of the home invasion. Marston, 353 Ill. App. 3d at 518. What justified

a finding that the home invasion and the aggravated battery were not based on the same physical act

was the fact that the home invasion also required that the defendant entered the girlfriend's home, an

act not part of the aggravated battery. Marston, 353 Ill. App. 3d at 518.

       Although sharing a common act can allow two convictions to stand, there must be an act that

will support a separate offense. Addressing circumstances similar to the present case, the Third

District held that convictions of resisting a peace officer and aggravated battery were both premised

on the same physical act. People v. Keefer, 229 Ill. App. 3d 582, 584 (1992). There, the defendant

was told by an officer that, if he did not cooperate, he would be charged with resisting arrest. The

defendant then struggled with the officer, grabbed and bent the officer's fingers, pushed the officer

into a wall, and began swinging at the officer. He was then subdued by two other officers. Keefer,

229 Ill. App. 3d at 583. The defendant was charged with aggravated battery on the basis that he

knowingly made physical contact of an insulting or provoking nature with the officer in that he

grabbed and bent the officer's fingers and slammed the officer against a wall. The resisting-a-peace-

officer charge was based on the fact that the defendant " 'resisted and struggled' " with the officer.

Keefer, 229 Ill. App. 3d at 584. Applying three factors of the Baity test--the time interval between

the successive parts of the defendant's conduct; the existence of an intervening act or event; and

whether the conduct occurred at the same location--the court held that both convictions were based

on the same act. Keefer, 229 Ill. App. 3d at 584. The court stated that both were based on "precisely

the same struggle," there was no interruption of that struggle, and there was no intervening act

between parts of the struggle. Keefer, 229 Ill. App. 3d at 584. Thus, the court vacated the resisting

conviction. Keefer, 229 Ill. App. 3d at 585. However, Keefer has been criticized by the First District



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because it applied part of the Baity test without discussing King. People v. Pearson, 331 Ill. App.

3d 312, 322 (2002).

       Here, both offenses shared the common act of Hagler slamming the door onto Clesen's hand

when he knew that Clesen was an officer. In the case of aggravated battery, that was the only act

necessary to prove the crime. The resisting count also was based on this act because the act was the

proximate cause of injury, making the crime a Class 4 felony. However, the State argues that

Hagler's act of running when told to stop was a separate and distinct act to support the first elements

of the charge--knowingly resisting or obstructing the performance of an officer. Thus, the State

contends that under Marston, the charges share an act, but Hagler's act of running when told to stop

was an additional act that separates the resisting charge from the aggravated battery charge.

       At first blush, the State's position appears to fit with the reasoning in Marston, but when the

specific language of section 31--1(a--7) is considered, Hagler's act of running when told to stop was

not the basis of the offense that he was convicted of. Under that section, a person who resists a peace

officer, and "whose violation was the proximate cause of injury[,] is guilty of a Class 4 felony."

(Emphasis added.) 720 ILCS 5/31--1(a--7) (West 2006). That language specifically defines the

initial violation of resisting a peace officer as the act that proximately caused the injury. Thus,

Hagler's conviction under section 31--1(a--7) was necessarily premised on his act of slamming the

door on Clesen's hand instead of on the simple act of running away when told to stop, which would

support a conviction under only section 31--1(a).1 Accordingly, both convictions were based solely

on Hagler's act of slamming the door on Clesen's hand, thus violating the one-act, one-crime doctrine.



       1
           The State does not argue alternatively that we should reduce the resisting conviction to one

under section 31--1(a).

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                                         III. CONCLUSION

       The charges were based on the same single act. Accordingly, under the one-act, one-crime

doctrine, we vacate Hagler's conviction of resisting a peace officer. The judgment of the circuit court

of McHenry County is affirmed in part and vacated in part.

       Affirmed in part and vacated in part.

       McLAREN and BOWMAN, JJ., concur.




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