APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES W. IBEN, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of conviction entered by the Circuit Court of Peoria County after a trial without jury. The defendant, Michael Rickman, was found guilty of two counts of aggravated battery.
The incident which resulted in the charges took place on July 2, 1977. On July 5, 1977, defendant was charged with two counts of battery. On August 25, 1977, an information was filed charging defendant with two counts of aggravated battery. The first count charged defendant with striking, hitting, and kicking John Mingus, thereby causing Mingus great bodily harm while committing a battery, knowingly and without justification. The second count contained identical allegations of battery on Gerald Brink. On October 13, 1977, the State filed an additional information charging the defendant with the theft of blue jeans from Montgomery Ward and Company. Defendant filed notice that he would raise the affirmative defense of the justifiable use of force.
Trial was held on October 21, 1977. The defendant moved to dismiss the theft count, but the State wished to join all three counts for trial. The court granted joinder, but indicated that a delay would be granted if all three charges were to be tried at once. In order to avoid delay the court then dismissed the theft count, without prejudice, and proceeded to trial on the aggravated battery counts.
John Mingus and Gerald Brink testified for the State; Rickman testified for the defense.
Mingus testified that he was the security manager of the Montgomery Ward store, but not a commissioned police officer. He was working at the store on July 2, 1977, at 11 a.m. He observed Rickman in the store and followed him to the parking lot in order to retrieve the merchandise which he believed that Rickman had taken from the store. Mingus then testified that he approached Rickman and showed his badge and identified himself as Montgomery Ward security. Rickman testified that Mingus did not show him a badge and he did not hear Mingus say he was a security officer.
Mingus then asked Rickman to turn over the pants that were taken. Rickman insisted that he had done nothing, but eventually gave Mingus a pair of pants, which according to Mingus he took from under his belt. Mingus grabbed at Rickman's collar and may have grabbed his skin, but Rickman escaped and fled through the parking lot. Mingus followed and yelled to him to stop and talk and the defendant stopped running and was grabbed by Mingus around the arms. Mingus had his handcuffs, which he had taken out during the encounter at the car, in his hand.
Brink, a commissioned police officer who was working for mall security in plain clothes, had seen Mingus pursuing Rickman through the lot. Brink was driving a mall security car with lights on top at the time. According to Mingus and Brink the defendant struggled to escape the grasp of Mingus, and Brink attempted to assist him in restraining the defendant. Brink took out his handcuffs and managed to get one cuff on defendant's left wrist after Mingus failed to handcuff him. The defendant struggled to prevent the attachment of the second handcuff.
During the struggle the defendant fell directly on top of Mingus' ankle and Mingus then fell to the ground with a broken ankle. Mingus testified that the defendant never threw him during the struggle; that there was apparently no way anyone could have prevented the broken ankle as a result of the fall. Brink testified that he did not know how Mingus and the defendant fell.
The defendant then broke loose from Mingus and stood up. Brink grabbed the defendant in order to attach the second handcuff and the struggle continued. According to Brink he and the defendant were standing in a slightly crouched position as Brink attempted to force the defendant to the ground. Brink had one arm on defendant's shoulder and the other hand on his hair. The defendant resisted by shoving, hitting, and kicking Brink as they faced one another. Brink testified that the defendant kicked him in the legs four or five times and on the last kick he felt his leg snap and heard a loud crack. Brink fell to the ground and pulled the defendant down. Brink testified at the trial that a direct kick at the break caused his broken leg. At the preliminary hearing Brink had testified only that the defendant was struggling by hitting and kicking but denied that the defendant kicked him in the area of the break. Brink insisted that the injury did not result from the defendant falling on his leg.
Brink then yelled to Mingus that his leg was broken. He feared further harm so he drew his gun from its holster in order to subdue the defendant. Since the defendant was close to Brink, he struck the defendant across the face with his gun. During further struggle the defendant fell near Mingus, who hit him across the face with his handcuffs several times.
The defendant testified that when Mingus approached him near his car, Mingus grabbed him in a bear hug and lifted him off the ground, shaking him a little bit. The defendant began shaking in order to escape and Mingus then threw him to the ground. The defendant then said "I give" but Mingus used his weight to keep him down. Mingus replied that defendant would never give up and struck him behind the ear with his handcuffs. The defendant then began to fight to protect himself. During the struggle the defendant realized that someone had joined to assist Mingus, but did not know who the other person was.
The defendant is 5' 9" tall and weighs 140 to 160 pounds. Mingus is 6' 3" tall and weighs 195 to 200 pounds. Brink is 6' 2" tall and weighs 200 pounds.
The trial court found that there was sufficient proof of suspicious circumstances to justify a search and detention by Mingus, but found that no proof indicated that a shoplifting incident occurred. Since the defendant tried to get away from the detention and a struggle ensued, he must bear the consequences of that struggle. The court felt that since the defendant had fled once, there was reason for Mingus to fear conflict when he caught up to the defendant, so some force was warranted ...