People v. Hileman

2020 IL App (5th) 170481

172 N.E.3d 209

446 Ill.Dec. 901

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Roderick L. HILEMAN, Defendant-Appellant.

NO. 5-17-0481

Appellate Court of Illinois, Fifth District.

Rule 23 order filed December 1, 2020

Motion to publish granted December 21, 2020

Opinion filed December 21, 2020

James E. Chadd, John M. McCarthy, and Jessica L. Harris, of State Appellate Defender's Office, of Springfield, for appellant.

Daniel Klingemann, State's Attorney, of Jonesboro (Patrick Delfino, Patrick D. Daly, and Valerie A. Ozment, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE WHARTON delivered the judgment of the court, with opinion.

¶ 1 The defendant, Roderick L. Hileman, was convicted of one count of escape ( 720 ILCS 5/31-6(c) (West 2014)), three counts of obstruction of a peace officer (Id. § 31-1(a)), and one count of aggravated assault (Id. § 12-2(b)(4)(i) ). The defendant appeals his conviction for escape, arguing that the evidence was insufficient to prove beyond a reasonable doubt that he was in lawful custody, an element of the offense. He appeals all of his convictions, arguing that the court's failure to fully comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) constituted plain error. Finally, he appeals his sentence for aggravated assault, arguing that the court impermissibly considered a factor inherent in the offense—the threat of harm—as an aggravating factor. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On July 20, 2015, Officer Josh Ehler encountered the defendant in the parking lot of the Blue Fish Liquor Store in Anna, Illinois. At the defendant's trial in this matter, Officer Ehler testified that he was on patrol sometime after midnight when he noticed an individual sitting on some rocks at the edge of the parking lot of Blue Fish Liquor. The individual, who was later identified as the defendant, was holding what appeared to be a beer can. Because consumption of alcohol in public violates an Anna city ordinance, Officer Ehler pulled into the parking lot, approached the defendant, and spoke to him through the open window of his squad car.

¶ 4 According to Officer Ehler, the defendant appeared to be intoxicated. When Officer Ehler asked the defendant about the beer can, the defendant told him he was old enough to drink. Officer Ehler explained that a local ordinance prohibited him from having an open container in public. He testified that the defendant approached the vehicle, leaned into the window, and cursed at Officer Ehler. Officer Ehler drove his vehicle to another part of the parking lot and called dispatch to request back-up.

¶ 5 Officer Ehler testified that he then approached the defendant once again. This time, he got out of his vehicle. He asked the defendant for identification because it was police protocol to do so. The defendant took out his wallet and began "fumbling" through it, but he did not produce an identification card. While this was taking place, Officer Leek pulled into the parking lot.

¶ 6 Officer Ehler testified that the defendant told him to take his badge off and said he would "beat [his] fucking ass." Officer Ehler interpreted this as "an aggressive threat." He then took out a pair of handcuffs and told the defendant to place his arms behind his back because he was under arrest. The defendant did not comply. Instead, he "took an aggressive stance." Officer Ehler stated that he reached out, grabbed the defendant's left arm, and pulled his hand behind his back. He testified, "I attempted to walk him towards my patrol car in order to place him against it to try to gain control over the suspect." At this point, Officer Leek grabbed the defendant's right arm "to help gain control." Asked if this meant that the defendant "was walking towards the car" with both officers, he replied, "Yes."

¶ 7 Officer Ehler testified that the defendant pulled both of his arms free from the officers' grip and then "took off running." Officer Ehler yelled to him twice, directing him to stop; however, the defendant continued running. The officers ran after the defendant, who ran towards Vienna Street. Based on the defendant's verbal threat and resistance to arrest, Officer Ehler believed that he may have committed a crime. As such, he explained, he did not want to let the defendant "run off into the night." He therefore used his TASER on the defendant. The defendant, who was running at full speed, tensed up and fell forward. Officer Ehler explained that when a TASER is used on a suspect, it "locks all the muscles up." As such, the defendant was unable to put his hands out to brace himself when he fell.

¶ 8 According to Officer Ehler, when he and Officer Leek approached the defendant, they noticed that he was unconscious and that his face was bleeding. Officer Leek handcuffed the defendant and called for an ambulance. According to Officer Ehler, the defendant regained consciousness before the ambulance arrived a few minutes later.

¶ 9 On cross-examination, Officer Ehler testified that he placed the defendant under arrest because he believed he was in danger of receiving a battery due to the defendant's threat. He acknowledged, however, that the defendant did nothing other than threaten him verbally. Officer Ehler further testified that the emergency room physician who treated the defendant told him that the defendant's injuries were minor and would heal on their own. When shown photographs of the defendant's injuries, however, Officer Ehler acknowledged that there were injuries on both sides of the defendant's face. He denied that these injuries resulted from a beating by police. When asked by defense counsel whether his police report was "almost a duplicate" of Officer Leek's report, Officer Ehler acknowledged that it was. However, he denied that he and Officer Leek discussed the matter and "came up with a story"; rather, he testified that the reports were nearly identical "because that's what happened."

¶ 10 Defense counsel asked, "Did you ever have him in custody and control?" Officer Ehler replied, "He was not physically in custody." On redirect examination, Officer Ehler testified that the defendant was "never physically put into custody" and was "never transported to the jail."

¶ 11 Officer Leek testified that he drove past the Blue Fish Liquor Store while on patrol that night and noticed Officer Ehler's patrol car in the parking lot. He did not see anyone else in the parking lot. However, as he drove past, he heard over his radio that Officer Ehler had requested back-up to assist him with a "combative male subject." Officer Leek turned his vehicle around and pulled into the parking lot. As he did, he saw Officer Ehler exiting his squad car and approaching an individual, whom he recognized as the defendant.

¶ 12 According to Officer Leek, he told the defendant to cooperate with Officer Ehler because it would "make this much easier and smoother." However, the defendant did not acknowledge Leek or look at him. Instead, he continued to be "uncooperative" and "argumentative" towards Officer Ehler. Officer Leek testified that the defendant said to Officer Ehler, "Take that badge off and I'll beat your ass."

¶ 13 Officer Leek's account of the events that followed was consistent with Officer Ehler's account. He gave a somewhat more detailed description of the "aggressive stance" taken by the defendant. He explained that the defendant "bladed his body" towards Officer Ehler. Asked to explain what he meant by "bladed," Officer Leek responded, "It's more of a defensive stance more or less, * * * kind of sideways as if maybe you might want to throw a punch or possibly reach for a weapon or something."

¶ 14 On cross-examination, defense counsel questioned Officer Leek about the similarity in the wording in portions of the two officers' police reports. The following exchange took place:

"Q. So the fact that some of this wording is identical is just a coincidence?

A. Is that a question?

Q. Yeah.

A. I guess."

We note that the police reports were not admitted into evidence. Counsel next showed Officer Leek photographs of the injuries to the defendant's face, which, as we noted earlier, showed that he received injuries to both sides of his face. Counsel asked if the defendant received these injuries from landing on the sidewalk on one side of his face. Officer Leek replied, "Yes, he was running at a full speed."

¶ 15 Officer Leek's testimony concerning what transpired after Officer Ehler used his TASER differed somewhat from that of Officer Ehler. He testified that the barbs from the TASER must have made contact with the defendant's body, explaining that, otherwise, he would not have tensed up and fallen forward as he did. Officer Ehler, by contrast, testified that because the barbs fired from a TASER exude an electrical charge, the defendant could have been affected even if they did not make physical contact.

¶ 16 Dr. Madlene Buggs was the defendant's treating physician in the emergency room. She testified that the defendant sustained multiple injuries to his head and face. He sustained multiple fractures to facial bones as well as abrasions on both sides of his face. In addition, the defendant experienced a decrease in his ability to communicate. Dr. Buggs testified that he had to be transported to a trauma center for further treatment of his injuries. She testified that she did not observe any indication that the defendant's body was pierced by the barb from a TASER; however, she also testified that she did not frequently see patients after a TASER was used on them.

¶ 17 When asked if the defendant's injuries were likely caused by something other than a fall to the pavement, Dr. Buggs opined that while it was not impossible for him to receive such injuries from a single fall to the pavement, they were more likely to have resulted from either multiple falls or from being struck multiple times with an object. This was so, she explained, because he...