                                    2019 IL App (4th) 170165
                                                                                      FILED
                                          NO. 4-17-0165                              May 31, 2019
                                                                                     Carla Bender
                                  IN THE APPELLATE COURT                         4th District Appellate
                                                                                       Court, IL
                                           OF ILLINOIS

                                       FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,           )     Appeal from the
           Plaintiff-Appellee,                 )     Circuit Court of
           v.                                  )     McLean County
ALFREDO ALBERTO GARZA,                         )     No. 14CF923
           Defendant-Appellant.                )
                                               )     Honorable
                                               )     Scott D. Drazewski,
                                               )     Judge Presiding.
______________________________________________________________________________

               JUSTICE HARRIS delivered the judgment of the court, with opinion.
               Justices Steigmann and Knecht concurred in the judgment and opinion.

                                            OPINION

¶1             Following a bench trial, defendant, Alfredo Alberto Garza, was convicted of

escape (720 ILCS 5/31-6(c) (West 2014)). The trial court sentenced him to six years in prison.

On appeal, defendant argues that the State failed to prove he was in “lawful custody,” an element

of the offense of escape. We disagree and affirm the court’s judgment.

¶2                                      I. BACKGROUND

¶3             In August 2014, defendant was charged with escape, a Class 2 felony (count I)

(id.), and resisting a peace officer, a Class A misdemeanor (count II) (id. § 31-1(a)).

¶4             At a bench trial in December 2016, Ellsworth police officer Joshua Dingler

testified that on August 9, 2014, he arrived at defendant’s residence with the Ellsworth Chief of

Police Steve Silvey, in response to a complaint of barking dogs. Officer Dingler explained that,
en route, they learned there was an outstanding warrant for defendant’s arrest for an unrelated

felony offense.

¶5                Officer Dingler testified that he knocked on the door of the residence, and

defendant’s girlfriend, Tavia Betts, allowed the officers to enter. Upon entering the residence,

Officer Dingler observed defendant standing at the top of a stairwell, wearing only sweatpants.

Officer Dingler advised defendant that there was a warrant for his arrest. Officer Dingler

proceeded to walk upstairs and informed defendant “that he was under arrest.” Defendant then

requested that he be allowed to put on a shirt and shoes and to say goodbye to his family. Officer

Dingler “escorted” defendant into his bedroom while defendant dressed. During this time,

Officer Dingler stayed within two feet of defendant. Defendant was permitted to say goodbye to

his son, who was in another upstairs bedroom. Again, Officer Dingler stayed within two feet of

defendant. Officer Dingler testified that he informed defendant that he would not be handcuffed

in front of his children, but that once they were outside, he would be handcuffed for

transportation. Defendant was “escorted” down the stairwell as Officer Dingler walked “very

closely right behind,” with Chief Silvey “downstairs waiting for [defendant].”

¶6                Officer Dingler further testified that, after defendant said goodbye to his girlfriend

and his daughter downstairs, he and Chief Silvey “escorted” defendant outside. “[W]hen [we]

got to the door *** [we] [e]ach *** had an arm.” However, because the door was too “skinny,”

defendant walked outside first with the officers following behind him. Defendant asked if he

could smoke a cigarette before he was put in handcuffs. Defendant was allowed to do so with the

“caveat” that “after he lit his cigarette, he was going to have to be placed in handcuffs.” When

defendant lit his cigarette, Officer Dingler told defendant to turn around and place his hands


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behind his back. Defendant responded, “[A]ll right.” Then he “turned” and “took off running.”

Officer Dingler chased defendant and apprehended him several blocks away.

¶7             The State rested, and the trial court denied defendant’s motion for a directed

verdict.

¶8             Defendant’s girlfriend, Tavia Betts, testified next. Betts testified that, when the

officers arrived at the house, she initially told them defendant was not home, but eventually she

acknowledged he was present. Betts testified she never observed the officers “exercise any

physical control” over defendant. However, she admitted there were “parts of the situation

between the officers and *** defendant that [she] did not see.”

¶9             Blaze Garza, defendant’s son, who was 16 years old at the time of trial, testified

that, on the date in question, he was asleep in an upstairs bedroom. He stated that he was

awakened that morning by his father who came into his bedroom to say he loved him and they

hugged. There was an officer standing behind defendant at the time. Blaze testified that he did

not “see the officer[ ] holding [defendant] in any way.”

¶ 10           John Schneider, defendant’s neighbor, testified that he was across the street doing

home repairs outside when he saw officers pull up to defendant’s home. Schneider stated the

officers were inside the house for 10 or 15 minutes before defendant came outside. Schneider

stated that officers were not “holding” defendant “at that time.” Schneider further testified that

defendant “took off” running, and officers later returned to the house with defendant in

handcuffs.

¶ 11           Defendant testified on his own behalf. He stated that the officers “never once

touched me the whole time.” Before he went outside with the officers, defendant “grabbed a


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shirt” and told his family he “loved” them. Defendant then noticed a pack of cigarettes and said,

“Oh, I’m gonna smoke a cigarette.” Defendant explained that he did not smoke inside his house

and one of the officers said, “Well, go outside.” Defendant testified that he went outside, and the

officers “c[a]me out” “behind” him. Defendant explained that he became “frustrated” as he

smoked. He testified that he “jumped” but “stopped when [an officer] told [him] to stop.”

¶ 12           The trial court found defendant guilty of both escape (count I) and resisting a

peace officer (count II). As to count I, the court concluded that defendant was in custody within

the meaning of the escape statute because the officers exercised physical control over him.

¶ 13           Defendant subsequently filed a motion for reconsideration. In February 2017, the

trial court granted the motion in part and vacated defendant’s conviction for resisting a peace

officer (count II). That same day, the court sentenced defendant to six years in prison on count I.

¶ 14           This appeal followed.

¶ 15                                      II. ANALYSIS

¶ 16           Defendant argues on appeal that the State failed to prove he was in “lawful

custody,” an element of the offense of escape. Defendant contends the issue involves a matter of

statutory construction for which the proper standard of review is de novo. The State maintains

that defendant is challenging the sufficiency of the evidence and, thus, the standard of review is

“whether, when viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the elements of the crime beyond a reasonable doubt.” People v.

McClanahan, 2011 IL App (3d) 090824, ¶ 10, 978 N.E.2d 642.

¶ 17           Initially, we note that the State has presented sufficient evidence to support

defendant’s conviction under either standard. See People v. Johnson, 396 Ill. App. 3d 1028,


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1030, 920 N.E.2d 1212 (2009). Further, we find this case to be similar to McClanahan, 2011 IL

App (3d) 090824, which also involved the issue of whether a defendant was in “lawful custody”

for purposes of the escape statute. In determining the appropriate standard of review, the

McClanahan court stated:

                      “We do not find that this case involves a matter of statutory interpretation.

              Instead, the defendant’s conviction is dependent upon whether the officer

              exercised a sufficient amount of control over the defendant. [Citation.] We will,

              therefore, uphold the conviction if any rational trier of fact could have found that

              the defendant was in lawful custody.” Id. ¶ 11.

We find the approach taken in McClanahan was proper and decline to apply a de novo standard

of review.

¶ 18          The escape statute provides, in pertinent part, that “[a] person in the lawful

custody of a peace officer for the alleged commission of a felony offense *** and who

intentionally escapes from custody commits a Class 2 felony.” 720 ILCS 5/31-6(c) (West 2014).

The term “lawful custody” is not defined by the statute. Nor is the term defined elsewhere by the

legislature. Generally, for purposes of interpreting the escape statute, “Illinois courts have

focused on the amount of control the officer had over the defendant” (McClanahan, 2011 IL App

(3d) 090824, ¶ 12) and the “restriction of defendant’s freedom of movement” (Johnson, 396 Ill.

App. 3d at 1032).

¶ 19          Defendant cites People v. Kosyla, 143 Ill. App. 3d 937, 494 N.E.2d 945 (1986), to

support his argument that the officers in the instant case did not exercise control over him. In

Kosyla, officers told the defendant that he was under arrest but did not make physical contact or


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otherwise restrain his freedom of movement. When an officer told the defendant he was under

arrest, the defendant said he was going to call his lawyer, and he went back inside his home. Id.

at 940. The defendant subsequently came outside again and said, “ ‘[i]f you want me, come get

me.’ ” Id. at 952. The defendant then ran toward a cornfield behind his home. Id. at 940. On

appeal, the court concluded that the defendant was not in “custody” for purposes of the escape

statute. Id. at 951. The court emphasized that the defendant taunted the officer by saying, “ ‘[i]f

you want me, come get me,’ ” and found that this “clearly evidenced [the defendant’s] intent to

evade the imposition of custody altogether, not to escape from it.” Id. at 952.

¶ 20           The State contends the instant case is more similar to People v. Lauer, 273 Ill.

App. 3d 469, 653 N.E.2d 30 (1995), and McClanahan. In Lauer, officers informed the defendant

that there had been reports of a loud party in his driveway. Id. at 471. An argument ensued, and

the defendant kicked one of the officers. Id. When another officer tried to handcuff the

defendant, he “broke away” and “ran into the house.” Id. After following the defendant inside,

one officer “put his arm around [the] defendant’s neck” and “pulled [the defendant] backwards

from the back bedroom toward the front door.” Id. The defendant “broke free” again and “ran”

away. Id. In affirming the defendant’s conviction for escape, the court stated that the officer “did

more than merely announce that [the] defendant was under arrest.” Id. at 474. The defendant was

“actually restrained” and “physically moved” from the “back bedroom to the front part of the

house” prior to running away from the officers. Id.

¶ 21           In McClanahan, 2011 IL App (3d) 090824, ¶ 5, an officer informed the defendant

that he was under arrest and “grabbed” him, forcing him onto the hood of a car. As the officer

reached for handcuffs, the defendant “slip[ped] away” and “ ‘took off running.’ ” Id. On appeal,


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the defendant argued that he was “never in lawful custody” because the officer “failed to acquire

sufficient control” over him. Id. ¶ 9. The court found that the defendant was in custody because

the officer “did more than inform defendant that he was under arrest” and “physically restrained”

him. Id. ¶¶ 16, 18.

¶ 22           In this case, like Lauer and McClanahan, the officers did more than merely

announce to defendant that he was under arrest. Officer Dingler testified that he stood “within

two feet” of defendant and “escorted” him throughout the house after defendant was given

permission to put on his clothing and say goodbye to his family. Further, the officers exercised

control over defendant by “escort[ing]” him down a staircase, with one officer following “very

closely right behind” and the other officer “downstairs waiting for [defendant].” The officers

physically escorted defendant to the door, with each of them holding on to one of defendant’s

arms. In fact, the following colloquy during Officer Dingler’s cross-examination makes clear that

the officers were in physical control of defendant as they walked with him toward the door:

                      “Q. And you never physically restrained [defendant] before he took off

               running?

                      A. Define restraining.

                      Q. Restraining, holding. Holding him still[.]

                      A. We did hold him as we walked him to the door.”

¶ 23           Based on this evidence, we find that defendant was in “lawful custody” within the

meaning of the escape statute. See 720 ILCS 5/31-6(c) (West 2014).

¶ 24           In closing, we commend the police officers here for the considerate manner in

which they placed defendant in custody. Their actions inside defendant’s home, including


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allowing defendant to dress and say goodbye to his son without being handcuffed, likely served

to limit the family’s trauma attendant to the circumstances.

¶ 25                                   III. CONCLUSION

¶ 26           For the reasons stated, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 27           Affirmed.




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