People v. Agnew-Downs

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
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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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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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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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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

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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

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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,

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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.

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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.

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