concurring in part and dissenting in part:
I concur in the majority’s judgment remanding the matter to the trial court to amend the mittimus and determine the appropriate amount of additional pretrial custody credit. 396 Ill. App. 3d at 1033.1 dissent, however, from the finding that the evidence was sufficient to prove defendant guilty of escape beyond a reasonable doubt. 396 Ill. App. 3d at 1032-33. Defendant argues that the facts do not establish that he was in the “lawful custody” of McCollum at the time he pulled away and fled into the apartment building. I agree.
At the outset, I note that the parties dispute the appropriate standard of review. Defendant contends that the facts are undisputed and thus the appropriate standard of review is de novo. The State does not actually challenge this assertion. Instead, the State argues that “the determination of whether *** defendant was proven guilty beyond a reasonable doubt was a finding of fact delegated to the jury and not a matter of law as argued by *** defendant”; and thus the relevant question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The majority does not offer any substantive analysis as to this issue. Instead, it simply finds that the record is sufficient to “affirm defendant’s conviction under either standard.” 396 Ill. App. 3d at 1030. I choose to view the facts under the appropriate standard of review. Because the facts are undisputed and defendant merely contends that the State’s evidence of guilt was insufficient to sustain his conviction, de novo review is appropriate. See People v. Smith, 191 Ill. 2d 408, 411, 732 N.E.2d 513, 514 (2000). I now turn to the question of whether defendant was proven guilty of escape beyond a reasonable doubt.
Section 31 — 6(c) of the Criminal Code of 1961 (Code) states:
“A person in the lawful custody of a peace officer for the alleged commission of a felony offense and who intentionally escapes from custody commits a Class 2 felony ***.” 720 ILCS 5/31 — 6(c) (West 2006).
While the term “lawful custody” is not defined in the escape statute, the parties discuss three cases which examine the issue of custody for purposes of escape (People v. Lauer, 273 Ill. App. 3d 469, 653 N.E.2d 30 (1995); People v. Elsperman, 219 Ill. App. 3d 83, 579 N.E.2d 22 (1991); People v. Kosyla, 143 Ill. App. 3d 937, 494 N.E.2d 945 (1986)).
The defendant in Elsperman was charged with obstructing justice. The charge alleged that defendant, “ ‘with the intent to prevent *** apprehension *** knowingly ran from, hid from and had to be chased on foot by *** a peace officer, thereby concealing the physical evidence of his person.’ ” Elsperman, 219 Ill. App. 3d at 84, 579 N.E.2d at 23. In affirming the trial court’s dismissal of the charge, the court found that it is the offense of resisting arrest that the legislature intended to apply to those instances where an officer attempts to make an arrest but the suspect runs away. Elsperman, 219 Ill. App. 3d at 85, 579 N.E.2d at 23. The offense of escape, however, applies to those situations where a police officer has succeeded in making an arrest and the suspect escapes from custody. Elsperman, 219 Ill. App. 3d at 85-86, 589 N.E.2d at 23.
After being found guilty of escape, the defendant in Kosyla argued that the State failed to establish the element of custody. There, police confronted the defendant at his residence after receiving a complaint that he was playing his music too loudly. The police told the defendant he was under arrest. In response, the defendant indicated that he was going to call his lawyer and ran into his house. The defendant then reappeared, shouted an obscenity at the police, and ran into a cornfield behind his home to elude the police. He was later arrested and charged with escape. On appeal, the court stated that “[biased on [the] facts, the defendant was not yet ‘in the lawful custody of a peace officer’ as that phrase is used in section 31 — 6(c).” Kosyla, 143 Ill. App. 3d at 952, 494 N.E.2d at 955.
The defendant in Lauer was found guilty of escape. On appeal, the defendant argued that he was not proven guilty beyond a reasonable doubt “because his arrest was never completed and he was never in the lawful custody” of a police officer. Lauer, 273 Ill. App. 3d at 474, 653 N.E.2d at 33. There, the police and the defendant engaged in an altercation outside the defendant’s residence. One of the officers attempted to handcuff the defendant, but the defendant broke away and ran inside the house. Inside the house, the defendant ran to the back bedroom where the officers grabbed him, put him in a choke hold, and dragged him to the front of the house. The defendant ultimately freed himself from the officers’ grasps and ran out of the house. In affirming the defendant’s conviction, the court stated that, in contrast to Kosyla, the police did more than just announce the defendant was under arrest. Lauer, 273 Ill. App. 3d at 474, 653 N.E.2d at 33. The officer had restrained the defendant and physically moved him from the back to the front room of the house before the defendant broke free and ran out the back door of the house. Lauer, 273 Ill. App. 3d at 474, 653 N.E.2d at 33. As a result, the court held that this was sufficient evidence to establish “lawful custody.” Lauer, 273 Ill. App. 3d at 474, 653 N.E.2d at 33.
The above authority illustrates that “lawful custody” is defined by the control exercised by the police over the defendant. In the present case, I cannot say that the evidence presented at trial was sufficient to establish “lawful custody.” The record is void of any evidence that defendant was even told that he was under arrest. Instead, the evidence showed that defendant exited the vehicle because McCollum informed the driver that he needed to “talk” to defendant. The majority in affirming defendant’s conviction, however, relies upon the fact that defendant subsequently placed his hands behind his back at the direction of McCollum and McCollum then placed a handcuff on defendant’s right wrist to establish that defendant was “in the lawful custody of’ McCollum. 396 Ill. App. 3d at 1032. This fact does not establish that defendant submitted to custody, however, because it is unclear that McCollum ever actually told defendant he was under arrest. The proposition that someone can submit to something of which he is unaware simply defies logic.
Immediately after the handcuff was placed on defendant, he spun out of McCollum’s reach and fled. While McCollum clearly attempted to arrest defendant, he never succeeded in doing so. See Elsperman, 219 Ill. App. 3d at 85-86, 589 N.E.2d at 23. Unlike the facts presented in Lauer, the facts here do not establish that McCollum ever had control over defendant. See Lauer, 273 Ill. App. 3d at 474, 653 N.E.2d at 33. Moreover, the Lauer court’s decision rested upon the parties’ second altercation where the officer had restrained the defendant and physically moved him from the back bedroom to the front room of the house before the defendant broke free. It did not rest upon the parties’ initial contact where the officer attempted to handcuff the defendant, but the defendant broke away and ran inside the house. Thus, while the facts of this case support defendant’s conviction of resisting a peace officer, I do not believe they support defendant’s conviction of escape.
Accordingly, I would vacate defendant’s conviction of escape and remand the matter with instructions that the trial court: (1) enter judgment and impose sentence only on defendant’s conviction of resisting a peace officer; (2) amend the mittimus to reflect credit for one additional day spent in custody; and (3) determine the appropriate amount of simultaneous custody credit to be awarded.