                        Illinois Official Reports

                                Appellate Court



                    People v. Jones, 2015 IL App (2d) 130387



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            DeANDREA JONES, Defendant-Appellant.




District & No.     Second District
                   Docket No. 2-13-0387




Filed              March 17, 2015
Rehearing denied   July 10, 2015



Decision Under     Appeal from the Circuit Court of Carroll County, No. 12-CF-72; the
Review             Hon. Val Gunnarsson, Judge, presiding.




Judgment           Affirmed in part and reversed in part.




Counsel on         Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for
Appeal             appellant.

                   Scott L. Brinkmeier, State’s Attorney, of Mt. Carroll (Lawrence M.
                   Bauer and Barry W. Jacobs, both of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Justices Hudson and Birkett concurred in the judgment and opinion.




                                               OPINION

¶1         Following a jury trial, defendant, DeAndrea Jones, was convicted of aggravated battery to
       a peace officer (720 ILCS 5/12-4(b)(18) (West 2010)) and obstructing a peace officer (720
       ILCS 5/31-1(a) (West 2010)). The trial court sentenced him to five years’ imprisonment. He
       appeals, contending that the State failed to prove beyond a reasonable doubt that the officer
       was engaged in an authorized act, as required for a conviction of obstructing. We affirm in part
       and reverse in part.
¶2         Defendant was charged with aggravated battery and obstructing. He was also charged with
       domestic battery by making contact of an insulting or provoking nature with Susanne Guzman.
       That charge was severed before trial and is not at issue here.
¶3         At trial, Phillip Small testified that on December 16, 2013, he was on his front porch when
       he saw a man get dropped off at a house across the street. The man, defendant, who appeared to
       have been drinking, crawled up the stairs. Small heard a man and a woman arguing and “stuff
       breaking.” This argument lasted three or four minutes. Small then called the police.
¶4         Savanna police officer John Loechel testified that he responded to a report of a “physical
       domestic.” He saw Small standing in the doorway of his house. Small pointed across the street,
       where Loechel saw defendant and Guzman on the porch arguing. The porch was enclosed,
       with several windows and a screen door. Loechel knocked on the door and identified himself
       as a police officer. He opened the door, announced that he was there to investigate a domestic
       disturbance, and asked what the problem was. Defendant informed Loechel that there was no
       problem.
¶5         Loechel told defendant that there would not be arguing if there were no problem. He asked
       defendant to step outside to discuss the situation, but defendant refused. In response to several
       such requests, defendant asserted that it was his house and that Loechel needed to leave.
       Defendant continued swearing at Loechel.
¶6         Loechel testified that he was concerned about the safety of all involved at that point. He
       could smell alcohol coming from both parties, and he did not know whether anyone else was
       inside the house.
¶7         Defendant then started walking back toward the main door of the house. Loechel grabbed
       his arm and tried to arrest him. Defendant started pushing and pulling away, so Loechel took
       him to the ground. Defendant began to kick the officer repeatedly. Loechel told him to stop
       resisting and that he was under arrest for resisting.



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¶8         At some point, Guzman ran over, yelling at Loechel to get off of defendant and pushing
       him. Loechel grabbed her arm and took her down also. He then pushed defendant out through
       the porch door. Outside in the yard the struggle continued, with Loechel trying to get defendant
       into handcuffs. Defendant tried to get Loechel into a headlock. Loechel got loose and drew his
       firearm, then backed away to catch his breath. Defendant continued swearing at him and
       started to walk back toward the house. Loechel holstered his firearm and followed defendant
       back toward the house. Additional officers eventually arrived to help with the arrest. Deputy
       Koepping tased defendant twice and he was eventually taken into custody.
¶9         The jury found defendant guilty on both counts and the trial court sentenced him to five
       years’ imprisonment. Defendant timely appeals.
¶ 10       Defendant contends that the State did not prove him guilty beyond a reasonable doubt of
       obstructing. He notes that a conviction of obstructing requires that the officer be engaged in an
       “authorized act” within his official capacity. 720 ILCS 5/31-1(a) (West 2010). He contends
       that, once he assured Loechel that there was no problem and asked him to leave, and where
       Guzman neither exhibited injuries nor requested assistance, Loechel’s investigation was
       finished and his remaining in defendant’s home was unauthorized. We agree.
¶ 11       Defendant was convicted of violating section 31-1 of the Criminal Code of 1961, which
       provides that one who “knowingly resists or obstructs the performance by one known to the
       person to be a peace officer *** of any authorized act within his official capacity commits a
       Class A misdemeanor.” 720 ILCS 5/31-1(a) (West 2010). Generally, “authorized act” means
       simply an act of a type that an officer is authorized to perform. See People v. Pickett, 34 Ill.
       App. 3d 590, 597 (1975). Where the authorized act is an arrest, the inquiry usually ends
       because a defendant is not privileged to resist even an unlawful arrest. City of Champaign v.
       Torres, 214 Ill. 2d 234, 241-42 (2005) (citing 720 ILCS 5/7-7 (West 2002)). Where, however,
       the officer’s act is the entry into (or remaining within) the defendant’s home, section 7-7 does
       not apply. Id. at 243. Thus, an officer’s entry into the defendant’s home in violation of the
       fourth amendment is not an “authorized act” for purposes of section 31-1 (id. (citing People v.
       Swiercz, 104 Ill. App. 3d 733, 736-37 (1982))), even if the entry is undertaken pursuant to an
       official investigation (id. at 243-44 (citing People v. Hilgenberg, 223 Ill. App. 3d 286, 294
       (1991))).
¶ 12       Here, the act that defendant was charged with obstructing was Loechel’s entry onto (or
       remaining on) defendant’s porch. If Loechel’s conduct violated the fourth amendment, it was
       unauthorized and defendant could not be convicted of obstructing it. Thus, we consider
       whether Loechel’s entry onto the porch and remaining there to continue his investigation were
       permitted by the fourth amendment.
¶ 13       The fourth amendment guarantees “[t]he right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend.
       IV. The chief evil against which the fourth amendment is directed is physical entry into the
       home. Payton v. New York, 445 U.S. 573, 585 (1980); People v. Wear, 229 Ill. 2d 545, 562
       (2008). The fourth amendment generally prohibits the police from entering a private residence
       without a warrant. People v. Foskey, 136 Ill. 2d 66, 74 (1990). Indeed, the fourth amendment
       “has drawn a firm line at the entrance to the house.” Payton, 445 U.S. at 590. Accordingly,
       absent exigent circumstances, the police may not enter a private residence to make a
       warrantless search or arrest. Id.; People v. Davis, 398 Ill. App. 3d 940, 948 (2010). The State


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       bears the burden of demonstrating exigent circumstances necessitating a warrantless search or
       arrest. Foskey, 136 Ill. 2d at 75.
¶ 14       Defendant essentially concedes that Loechel’s initial entry onto the porch was authorized.
       Loechel had just received a credible report of a loud argument, including the sound of things
       breaking, at defendant’s residence. Loechel saw two people arguing on the porch as he
       approached the house. Defendant appeared extremely intoxicated and belligerent. Thus,
       Loechel was authorized to at least step onto the porch to see whether Guzman was injured or
       needed assistance. See Sneed v. Howell, 306 Ill. App. 3d 1149, 1159 (1999) (Illinois Domestic
       Violence Act of 1986 (750 ILCS 60/305 (West 1994)) puts an affirmative duty on the police to
       respond to and investigate complaints); see also 750 ILCS 60/304(a) (West 2010).
¶ 15       Defendant contends, however, that once defendant assured Loechel that there was “no
       problem,” Loechel observed that Guzman was not visibly injured, and she did not request his
       assistance, he was obligated to respect defendant’s request that he leave the premises. We
       agree.
¶ 16       While Loechel was undoubtedly authorized to conduct some initial investigation, in doing
       so he found no evidence of domestic violence, or of any other offense for that matter. The
       report that prompted the investigation stated only that a verbal argument was occurring,
       accompanied by the sound of objects breaking. Loechel, too, heard arguing and things
       breaking, but, even after entering defendant’s home, he discovered no evidence of violence.
       Guzman, the ostensible victim, had no visible injuries and did not request assistance. Loechel’s
       authority to remain in defendant’s home effectively ended at that point. His remaining in the
       home in an attempt to detain defendant was an unauthorized act that defendant could obstruct.
       See City of Champaign, 214 Ill. 2d at 243-44 (where a police officer is not trying to make an
       arrest, owner would not be prohibited from using reasonable force to prevent the officer from
       making an unconstitutional entry into his or her apartment).
¶ 17       This case is unlike People v. Santana, 121 Ill. App. 3d 265 (1984). There, officers
       responded to a late-night call reporting that a domestic quarrel was occurring in an apartment,
       that a woman had been injured, and that a weapon might be involved. When they heard the
       sounds of argument and a dish breaking in the defendant’s apartment, the officers approached
       the door and noticed that it had been damaged as though by forcible entry. They knocked on
       the door and, when the defendant opened it, inquired whether there was a problem; they saw
       that the defendant was agitated and had blood on his hand and that the woman behind him had
       blood on her face and blouse. The defendant then slammed the door shut. Id. at 266. The
       officers entered the apartment. On appeal, the defendant argued that, because he and the
       woman had told the officers that they could not enter, the entry was unlawful. We rejected the
       defendant’s argument, concluding that the officers had reasonable grounds to believe that a
       crime was being committed and that the defendant was involved. Id. at 269. Moreover, we held
       that exigent circumstances authorized the warrantless entry. Id. at 268-70.
¶ 18       In Santana, the door was broken and both parties had blood on them. No such facts were
       present here, as both parties appeared uninjured. We thus reverse defendant’s conviction of
       obstructing a peace officer.
¶ 19       We note, however, that defendant’s argument applies only to his conviction of obstructing.
       Defendant was also convicted of aggravated battery to a peace officer, which requires only that
       the officer be performing his official duties (see 720 ILCS 5/12-4(b)(18) (West 2010)). He
       argues perfunctorily that, because Loechel was not performing an authorized act, he was not

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       performing his official duties either. Defendant cites no authority for this argument, and it is
       thus forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); People v. Ward, 215 Ill. 2d 317, 332
       (2005) (point raised in brief but not supported by relevant authority is forfeited).
¶ 20       Defendant next contends that the trial court should have sua sponte instructed the jury on
       self-defense as a defense to aggravated battery. Defendant acknowledges that he forfeited this
       contention by failing to raise it in a posttrial motion. See People v. Sargent, 239 Ill. 2d 166,
       188-89 (2010). He thus argues that we should invoke the plain-error exception to the forfeiture
       rule. See Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013).
¶ 21       The plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court
       to consider unpreserved error where either: (1) a clear or obvious error occurs and the evidence
       is so closely balanced that such error threatens to tip the scales of justice against the defendant,
       regardless of the seriousness of the error; or (2) a clear or obvious error occurs and is so serious
       that it affects the fairness of the defendant’s trial and challenges the integrity of the judicial
       process, regardless of the closeness of the evidence. People v. Walker, 232 Ill. 2d 113, 124
       (2009). In both instances, the burden of persuasion remains on the defendant. People v.
       Herron, 215 Ill. 2d 167, 187 (2005).
¶ 22       Consistent with the plain-error rule, Rule 451(c) provides that, where a jury instruction
       suffers from a substantial defect, claims of error are not subject to forfeiture on appeal. The
       erroneous omission of an instruction constitutes a substantial defect, or plain error, when the
       omission created a serious risk that the defendant was incorrectly convicted because the jury
       did not understand the applicable law, so as to threaten the fundamental fairness of the
       defendant’s trial. People v. Hopp, 209 Ill. 2d 1, 8 (2004).
¶ 23       Defendant acknowledges the rules that one may not resist even an unlawful arrest (see 720
       ILCS 5/7-7 (West 2010)) and that an officer may generally use any force that he reasonably
       believes necessary to effect an arrest (see 720 ILCS 5/7-5(a) (West 2010)). Defendant argues
       that these rules do not apply where an officer uses excessive force to effect an arrest. However,
       he points to no evidence of excessive force by Loechel.
¶ 24       Defendant cites evidence that Loechel grabbed his arm and twisted it. Then, when
       defendant continued to pull away from him, Loechel took him to the ground. Defendant fails to
       explain how the arrest could have been accomplished with a lesser degree of force.
¶ 25       People v. Sims, 374 Ill. App. 3d 427 (2007), on which defendant relies, is plainly
       distinguishable. There, evidence showed that the defendant generally cooperated with the
       officers until, after being arrested and placed in a squad car, his girlfriend, holding their baby,
       approached the car and began talking to the defendant. They got into an argument and an
       officer either told her to back away (according to the officer) or “ ‘nudged’ ” her (according to
       the defendant). Id. at 429-30. In any event, the defendant became upset and began banging on
       the window of the squad car. The officers then removed the defendant from the car. The
       defendant testified that the officers threw him face-first to the ground, placed a knee or elbow
       against his neck, and threw him into the back of the car, where an officer began hitting him in
       the ribs. He added that he was again dragged out of the car and “ ‘roughed *** up’ ” by several
       officers. Id. at 430. Photographs admitted at trial showed that the defendant’s face was
       extremely swollen, his right eye was swollen completely shut, and he sustained numerous cuts,
       scrapes, and bruises. Id. at 435. The reviewing court found that there was sufficient evidence of
       excessive force such that the defendant was entitled to his requested instruction on
       self-defense. Id.

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¶ 26       There was no similar evidence of excessive force here. Rather, the evidence
       overwhelmingly showed that defendant was belligerent and combative from the beginning of
       the encounter. When it was clear that defendant would not cooperate, Loechel merely grabbed
       his arm and tackled him, which was necessary to effect the arrest. Moreover, unlike in Sims,
       defendant did not request a self-defense instruction. To hold that the trial court was required,
       sua sponte, to instruct the jury on self-defense under these facts would mean that in virtually
       every resisting-arrest case the trial court would have to instruct the jury on self-defense,
       inviting it to speculate that the officer used excessive force. This in turn would all but
       eviscerate the rule that one may not resist an unlawful arrest.
¶ 27       Defendant’s real argument seems to be that, because Loechel unlawfully remained at his
       home, all his subsequent acts were tainted, entitling defendant to resist them by any force
       necessary. This is not the law. Once Loechel attempted to arrest defendant, defendant was not
       entitled to resist. 720 ILCS 5/7-7 (West 2010). Thus, we reject this argument and affirm
       defendant’s aggravated-battery conviction.
¶ 28       The judgment of the circuit court of Carroll County is affirmed in part and reversed in part.

¶ 29      Affirmed in part and reversed in part.




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