People v. Hileman

Rule 23 order filed 2020 IL App (5th) 170481
December 1, 2020.
Motion to publish granted NO. 5-17-0481
December 21, 2020.
IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Union County.
)
v. ) No. 15-CM-146
)
RODERICK L. HILEMAN, ) Honorable
) Charles C. Cavaness,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE WHARTON delivered the judgment of the court, with opinion.
Justices Cates and Barberis concurred in the judgment and opinion.

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.

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¶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 some time 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

2
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

3
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, who 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

4
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

5
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

sustained significant injuries, including fractures on both sides of his face.

¶ 18 Dr. Buggs further testified that she did not tell the investigating officer that the defendant’s

wounds would heal on their own. She acknowledged that she did not remember her conversation

with the officer. She stated, however, that she would not have told him that the injuries would heal

on their own, noting, “obviously, we had to transfer him to a trauma center, and that would mean

that it wouldn’t heal on its own.”

¶ 19 On cross-examination, Dr. Buggs acknowledged that a nurse who examined the defendant

made a notation in his medical record indicating that his facial injuries looked like “road rash.”

She also acknowledged that it was not impossible for the defendant to have sustained the injuries

he did from a single fall. She testified that the defendant reported being intoxicated and that he had

a blood alcohol content of .129.

¶ 20 During closing argument, the defendant argued that the only credible witness was Dr.

Buggs. He argued that the defendant’s injuries were caused by being beaten with a blunt object by

Officer Ehler, and that Officer Leek arrived on the scene after the beating was over. The jury

returned verdicts of guilty on all five charges; however, the court noted that one of the obstruction

of a peace officer charges merged with the escape charge.

6
¶ 21 Subsequently, the State filed a sentencing memorandum with the court. The State argued

that three factors in aggravation were applicable—the defendant’s conduct threatened serious harm

(see 730 ILCS 5/5-5-3.2(a)(1) (West 2014)), he had a lengthy history of prior crimes (see id. § 5-

5-3.2(a)(3)), and a jail sentence was necessary to deter others (see id. § 5-5-3.2(a)(7)). In support

of its contention that the defendant’s conduct threatened serious harm, the State asserted that his

“direct actions were to threaten Officer Josh Ehler with bodily harm.” The State further asserted

that “[t]he defendant then blindly ran down East Vienna Street, causing two officers to have to

pursue him into the street.” In support of its argument that the defendant had a lengthy criminal

history, the State attached copies of dispositions for 31 previous charges. The State requested that

the defendant be sentenced to 364 days in jail and 24 months of conditional discharge.

¶ 22 At the sentencing hearing, the State repeated the arguments it made in its memorandum.

The defendant presented the testimony of his mother concerning the severity of his injuries. She

also testified that she relied on the defendant for financial assistance and for help maintaining her

home and running her farm. He argued that there were three applicable factors in mitigation—

there were “substantial grounds tending to excuse or justify the defendant’s criminal conduct,

though failing to establish a defense” (see id. § 5-5-3.1(a)(4)), a jail sentence would cause hardship

to his mother (see id. § 5-5-3.1(a)(11)), and a jail sentence would endanger his medical condition

(see id. § 5-5-3.1(a)(12)).

¶ 23 In ruling from the bench, the court found that no factors in mitigation were applicable and

that all three factors in aggravation relied upon by the State were present. Although the court found

that the defendant’s conduct threatened serious harm, the court noted that there was no evidence

that the defendant attempted to injure either of the officers. The court sentenced the defendant to

18 months of probation. As a condition of his probation, the court ordered the defendant to submit

7
to an alcohol evaluation and an anger management evaluation, to complete any treatment

recommended in these evaluations, and to submit to random drug and alcohol screenings. The

court further ordered that for the first 12 months of his probation, the defendant would be subject

to home confinement from 9 p.m. to 6 a.m. each night. However, the court noted that if the

defendant was successful in his treatment programs, he could petition the court to lift this

condition. The court also imposed fines, which are not at issue in this appeal. This appeal followed.

¶ 24 II. ANALYSIS

¶ 25 A. Sufficiency of the Evidence on the Escape Charge

¶ 26 The defendant first argues that there was insufficient evidence to prove him guilty of

escape beyond a reasonable doubt because there was no evidence that he was ever in “lawful

custody” within the meaning of the statute defining the offense. That statute provides, in relevant

part, that a “person in the lawful custody of a peace officer for the alleged commission of a

misdemeanor offense *** who intentionally escapes from custody commits a Class A

misdemeanor.” 720 ILCS 5/31-6(c) (West 2014). The defendant contends that there was no

evidence that the officers exercised sufficient control over him to constitute custody. We disagree.

¶ 27 Ordinarily, we review challenges to the sufficiency of the evidence to determine whether,

viewing all the evidence in the light most favorable to the State, any reasonable trier of fact could

have found all the essential elements of the offense beyond a reasonable doubt. People v. Collins,

106 Ill. 2d 237, 261 (1985). The defendant argues, however, that our review should be de novo

because his argument focuses on the meaning of the statutory term “lawful custody.” He points

out that statutory construction is an issue of law subject to de novo review. See People v. Alcozer,

241 Ill. 2d 248, 254 (2011). Two districts of the Illinois Appellate Court have already rejected this

argument. Both the Third District and the Fourth District found that whether a defendant was “in

8
lawful custody” depends on the factual question of whether the officers involved exercise a

sufficient degree of control over the defendant. People v. Garza, 2019 IL App (4th) 170165, ¶ 17;

People v. McClanahan, 2011 IL App (3d) 090824, ¶ 11. In this case, however, we believe the

defendant’s claim fails under either standard of review.

¶ 28 The defendant calls our attention to the case of People v. Kosyla, 143 Ill. App. 3d 937

(1986). There, police officers went to the home of the defendant and his wife in response to a

complaint about loud music from a stereo in their garage. Id. at 939. When one of the officers told

the defendant to turn down the volume because it was disturbing the neighbors, he instead turned

the volume louder and asked the officer, “ ‘What are you going to do, arrest me?’ ” Id. at 940. The

officer informed the defendant that he was under arrest. The defendant stated that he was going to

call his attorney, and he went into his house. Id. After the defendant’s wife and son—who were

also arrested in the incident—were secured in a squad car, the defendant came back out of his

house and told the officers that if they wanted him, they should “ ‘come and get’ ” him. Id. at 952.

He then ran back inside the house and slammed the door. Shortly thereafter, the defendant ran out

the back door of his house and into a nearby cornfield. He was not apprehended that day. Id.

¶ 29 The defendant was subsequently arrested on a warrant, charged with escape and resisting

a peace officer, and convicted on both charges. Id. at 939. On appeal, he argued that the escape

conviction should be reversed because the State did not prove that he was “in custody.” Id. at 950-

51. The defendant emphasized that although the officer told him that he was under arrest, he “never

completed the arrest and, thus, never attained custody over him.” Id. at 951. The appellate court

agreed, finding that the defendant was “not yet in [the] lawful custody of a peace officer,” and

noting that, “at most, *** the defendant was guilty of resisting arrest.” Id. at 952.

9
¶ 30 The defendant argues that this case is analogous to Kosyla in that the defendant was “not

yet in lawful custody” when he broke away from the officers. In support of this argument, he

emphasizes that both officers testified that when Officer Ehler was walking the defendant towards

his squad car, he was “trying to gain control over him.” He further emphasizes that on cross-

examination, Officer Ehler admitted that the defendant was never “in physical custody.”

¶ 31 We believe this argument places too much emphasis on the choice of words used by the

officers. Although both officers did testify that they had difficulty gaining control over the

defendant, they also testified that they had a hold of his arms and were walking him towards the

squad car before he broke free. This indicates that although the officers did not have complete

control over the defendant, they had enough control to restrain his movement. Similarly, after

Officer Ehler admitted that he never considered the defendant to be “in physical custody,” he

testified that the defendant was never transported to jail. While it appears that Officer Ehler may

consider “custody” to arise only after a defendant is taken to jail, that is not true for purposes of

the escape statute. As stated previously, a defendant is in “lawful custody” for purposes of the

escape statute when an officer exercises a sufficient degree of control over the defendant. Garza,

2019 IL App (4th) 170165, ¶ 17; McClanahan, 2011 IL App (3d) 090824, ¶ 11. In Kosyla, the

officers never exercised any control over the defendant. That clearly is not true in this case.

¶ 32 The State argues that the instant case is more like Garza, McClanahan, and People v.

Lauer, 273 Ill. App. 3d 469 (1995), than Kosyla. In each of those cases, the appellate court found

that the defendant was “in lawful custody” for purposes of the escape statute when officers “did

more than inform [the] defendant that he was under arrest.” McClanahan, 2011 IL App (3d)

090824, ¶ 16; see also Garza, 2019 IL App (4th) 170165, ¶ 22; Lauer, 273 Ill. App. 3d at 474.

10
¶ 33 In Garza, two police officers went to the defendant’s home in response to a complaint

about barking dogs. On the way to the house, they discovered that there was an outstanding warrant

for the defendant’s arrest in an unrelated case. Garza, 2019 IL App (4th) 170165, ¶ 4. When they

arrived at the house, the defendant’s girlfriend let them in, and they informed the defendant that

he was under arrest. Id. ¶ 5. The officers allowed the defendant to put a shirt on and say goodbye

to his family. One of the officers testified that he “escorted” the defendant as he moved through

the house to get a shirt and say goodbye to various family members, always staying within two

feet of the defendant. Id. The two officers then “escorted” the defendant towards the door, each

holding one of his arms. Id. ¶ 6. Once outside, the defendant asked if he could smoke a cigarette.

The officers allowed him to do so; however, he was told that after he lit the cigarette, he was going

to be handcuffed. Id. It is unclear whether either officer was holding onto the defendant as he lit

his cigarette. However, when he finished, he was asked to turn around and put his hands behind

his back. Instead of complying, the defendant took off running. Id. On appeal from a conviction

for escape, the Fourth District found that the officers exercised sufficient control over the

defendant to constitute “lawful custody” for purposes of the escape statute. Id. ¶¶ 22-23.

¶ 34 In McClanahan, an officer told the defendant he was under arrest. He grabbed onto the

defendant, but the defendant struggled. McClanahan, 2011 IL App (3d) 090824, ¶ 5. The officer

was able to pin the defendant onto the hood of a car; however, when he reached for his handcuffs,

the defendant was able to break away. Id. On appeal from a conviction for escape, the Third District

found that the “defendant was lawfully restrained notwithstanding his resistance.” Id. ¶ 16. This

was so, the court explained, because the officer “physically restrained him and forcefully moved

[the] defendant to the hood of the squad car.” Id.

11
¶ 35 In Lauer, two officers responded to a report of a loud party. Lauer, 273 Ill. App. 3d at 470.

After they ordered the guests to leave, an argument began between the officers and the defendant.

The argument soon turned into a scuffle. Id. at 471. One of the officers attempted to handcuff the

defendant, but he broke away and ran into the house. Id. The officers pursued the defendant.

Eventually, they caught him in a back bedroom, and one of the officers put his arm around the

defendant’s neck in a “retention hold.” Id. As the officer walked the defendant towards the front

door, he managed to break free of the retention hold and run out of the house. Id.

¶ 36 On appeal from a conviction for escape, the First District rejected the defendant’s argument

that he was never in lawful custody. Id. at 474. The court explained that an officer “actually

restrained” the defendant and “physically moved [him] *** to the front part of the house” before

he broke free and ran away. Id.

¶ 37 Here, as in Garza, McClanahan, and Lauer, the officers did more than tell the defendant

he was under arrest. They held him by the arms and walked him towards Officer Ehler’s squad car

before he broke free of their grip. We therefore find that there was sufficient evidence to prove

that he was in lawful custody before breaking away.

¶ 38 B. Rule 431(b) and Plain Error

¶ 39 The defendant next argues that the court failed to fully comply with Rule 431(b). That rule

requires courts to ask jurors whether they both understand and accept four principles known as the

Zehr principles. See People v. Thompson, 238 Ill. 2d 598, 606 (2010); see also People v. Zehr, 103

Ill. 2d 472, 477 (1984). Here, the court explained all four principles to the jurors and asked if the

jurors accepted the four principles, but the court did not ask whether the jurors understood the

principles. As such, the court did not fully comply with the rule. See People v. Wilmington, 2013

IL 112938, ¶ 32. The defendant acknowledges that he did not object during voir dire, thereby

12
forfeiting appellate review of this issue. See People v. Belknap, 2014 IL 117094, ¶ 47. He asks us

to consider it under the plain error doctrine. We find that it is inappropriate to do so.

¶ 40 Under the plain error doctrine, this court may overlook the defendant’s forfeiture and

consider his claim under two circumstances. Under the first part of the plain error test, we may

review his claim if the evidence was so closely balanced that the error alone threatened to tip the

scales of justice against the defendant, regardless of the seriousness of the error. Under the second

part of the test, we may consider his claim if the asserted error was so fundamental that it

undermined the fairness of the trial and threatened the integrity of the judicial process, regardless

of the strength of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The Illinois

Supreme Court has held that a claim of failure to comply with Rule 431(b) is cognizable only

under the first part of the test—that is, we may consider the claim only if the evidence is closely

balanced. People v. Sebby, 2017 IL 119445, ¶ 52. This is because although Rule 431(b) is designed

to help ensure that criminal defendants are tried by jurors who are fair and impartial, the absence

of full compliance does not necessarily lead to a jury is not fair and impartial. Thompson, 238 Ill.

2d at 609-10.

¶ 41 Review under the first prong of the plain error test is appropriate when the evidence was

so closely balanced that “the error alone severely threatened to tip the scales of justice.” Sebby,

2017 IL 119445, ¶ 51. The defendant bears the burden of persuasion on the question of whether

the evidence was close enough to meet this standard. People v. Choate, 2018 IL App (5th) 150087,

¶ 52. Here, we do not believe the defendant can meet that burden.

¶ 42 In arguing that the evidence was closely balanced, the defendant points out that there was

no extrinsic evidence—such as body camera video or store security footage—to support the

testimony of the two officers. He also points out that the officers’ testimony concerning how the

13
defendant was injured conflicts with that of Dr. Buggs, who was a disinterested witness with no

motive to lie. The defendant argues that, absent extrinsic evidence, the matter became a contest of

credibility between the two officers and Dr. Buggs. We are not persuaded.

¶ 43 As the State correctly points out, none of Dr. Buggs’s testimony related to the crucial

question of whether the defendant was in lawful custody before breaking away from the officers

and running. As we discussed earlier, the defendant’s theory at trial was that the two officers made

up the story of the defendant’s arrest to cover up the use of excessive force by Officer Ehler.

However, virtually no evidence supported this claim. Although defense counsel questioned both

officers on the similarities in their police reports, both officers denied that they decided together

what they would put in the reports, and the reports themselves were not entered into evidence.

¶ 44 Moreover, there was evidence that supported the officers’ testimony. A photograph of the

beer can was admitted into evidence, and, as noted, the medical evidence showed that the defendant

was intoxicated, which tends to support the officers’ testimony. The fact that the officers gave

accounts of events that were highly consistent also enhances the credibility of their testimony.

¶ 45 We acknowledge that Officer Ehler’s claim that Dr. Buggs told him the defendant’s injuries

were minor and would heal on their own was at odds with the medical evidence. However, while

this was something for jurors to consider in assessing his overall credibility as a witness, we do

not believe the credibility of the officers’ uncontroverted testimony was so suspect that it rendered

the evidence to be closely balanced. Because we do not find the evidence to be so closely balanced

that the Rule 431(b) error alone severely threatened to tip the scales of justice against the

defendant, we decline to consider the defendant’s claim under the plain error doctrine.

14
¶ 46 C. Sentencing

¶ 47 The defendant’s final contention is that the court erroneously considered a factor inherent

in the offense of aggravated assault as an aggravating factor in sentencing him on that charge.

Specifically, he argues that the threat of harm is inherent in the offense of aggravated assault. The

defendant acknowledges that he did not raise this issue at the sentencing hearing, but he asks us to

consider his claim under the plain error rule. The first step in plain error analysis is to determine

whether an error occurred at all. Piatkowski, 225 Ill. 2d at 565. For the following reasons, we

conclude that the court did not err in sentencing the defendant.

¶ 48 It is never proper for a sentencing court to consider a factor that is inherent in the offense

as an aggravating factor. People v. Dowding, 388 Ill. App. 3d 936, 942 (2009). “The burden is on

the defendant to affirmatively establish that the sentence was based on improper considerations.”

Id. at 943. Here, we do not believe the defendant can carry this burden for three reasons.

¶ 49 First, we do not agree with the defendant that a threat of serious harm is inherent in the

offense of aggravated assault as charged. In support of his argument, the defendant correctly notes

that assault is defined as “conduct which places another in reasonable apprehension of receiving a

battery.” 720 ILCS 5/12-1(a) (West 2014). Battery usually, though not always, involves bodily

harm. See id. § 12-3(a). The defendant argues that, as such, “a threat of harm is inherent in the

offense of aggravated assault.” The problem with this argument is that the aggravating sentencing

factor at issue applies when the defendant’s conduct causes or threatens to cause “serious harm.”

(Emphasis added.) 730 ILCS 5/5-5-3.2(a)(1) (West 2014). In this case, the defendant was charged

with aggravated assault, rather than simple assault, because the victim was a police officer, not

because he threatened serious bodily harm. See 720 ILCS 5/12-2(b)(4)(i) (West 2014). As such, a

threat of serious harm is not inherent in that charge.

15
¶ 50 Second, although it is not entirely clear from the record, it appears that the court most likely

found that the defendant’s conduct threatened serious harm because he ran across Vienna Street,

putting the officers in danger from vehicles as they pursued him. Although the State argued that

the defendant’s conduct threatened harm both because he threatened Officer Ehler with a battery

and because he ran across the street with the officers in pursuit, the trial court specifically found

that the defendant did not try to injure either officer. Obviously, a threat of serious harm is not

inherent in the offenses of escape and obstructing a peace officer.

¶ 51 Third, even assuming the court considered an improper factor in sentencing, we need not

remand for a new sentencing hearing if “it appears from the record that the weight placed upon the

improper factor was so insignificant that it did not lead to a greater sentence.” Dowding, 388 Ill.

App. 3d at 945. In this case, all the charges against the defendant were Class A misdemeanors. See

720 ILCS 5/12-2(d), 31-1(a), 31-6(c) (West 2014). The defendant could have been sentenced to

up to 364 days in jail (730 ILCS 5/5-4.5-55(a) (West 2014)) and 24 months of conditional release

(id. § 5-4.5-55(d)). Instead, the defendant received no jail time, and he was sentenced to concurrent

sentences of 18 months of probation, which was 75% of the maximum period of probation

permissible for a Class A misdemeanor (see id. § 5-4.5-55(d)). The fact that the defendant’s

sentence was substantially lower than the maximum authorized sentence is an important

consideration in determining whether the improper aggravating factor was given significant

weight. See Dowding, 388 Ill. App. 3d at 945.

¶ 52 Considering the defendant’s lengthy criminal history and the fact that the court found no

mitigating factors, we think it is clear that the court gave little weight to the aggravating factor of

the threat of harm when it imposed a sentence that was substantially lower than the maximum. We

16
therefore find that no error occurred during sentencing, and we need not consider whether

application of the plain error rule is appropriate.

¶ 53 III. CONCLUSION

¶ 54 For the foregoing reasons, we affirm the defendant’s convictions and sentences.

¶ 55 Affirmed.

17
 2020 IL App (5th) 170481
NO. 5-17-0481
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Union County.
)
v. ) No. 15-CM-146
)
RODERICK L. HILEMAN, ) Honorable
) Charles C. Cavaness,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

Rule 23 Order Filed: December 1, 2020
Motion to Publish Granted: December 21, 2020
Opinion Filed: December 21, 2020
______________________________________________________________________________

Justices: Honorable Milton S. Wharton, J.

Honorable Judy L. Cates, J., and
Honorable John B. Barberis, J.
Concur
______________________________________________________________________________

Attorneys James E. Chadd, Appellate Defender, John M. McCarthy, Deputy
for Defender, Jessica L. Harris, Assistant Appellate Defender,
Appellant Office of the State Appellate Defender, Fourth Judicial District, 400 West
Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-5240
______________________________________________________________________________

Attorneys Hon. Daniel Klingemann, State's Attorney, Union County Courthouse,
for 309 West Market Street, Jonesboro, IL 62952, Patrick Delfino, Director,
Appellee Patrick D. Daly, Deputy Director, Valerie A. Ozment, Staff Attorney,
Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois
Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
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