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10/21/88 the People of the State of v. Albert Bartlett

October 21, 1988





530 N.E.2d 90, 175 Ill. App. 3d 686, 125 Ill. Dec. 172 1988.IL.1559

Appeal from the Circuit Court of Du Page County; the Hon. Thomas E. Callum, Judge, presiding.


JUSTICE NASH delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.


Following a bench trial defendant, Albert Bartlett, was convicted of battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(2)), resisting a peace officer (Ill. Rev. Stat. 1985, ch. 38, par. 31-1), and criminal damage to State-supported property (Ill. Rev. Stat. 1985, ch. 38, par. 21-4(a)), such offenses stemming from confrontations with police officers on May 28, 1986. The trial court sentenced defendant to three concurrent terms of nine months in the county jail. On appeal, defendant challenges only the conviction for criminal damage to State-supported property, arguing that he was not proved guilty beyond a reasonable doubt. We agree and reverse the criminal damage conviction.

At trial, James Lullo testified that he was working on the evening of May 28, 1986, as a security officer for a clothing store in Addison, Illinois. From the entryway of the store, Lullo observed the defendant changing a flat tire on his car in the store parking lot and he appeared to be swaying back and forth.

Lullo called the Addison police and Officers Muniz and Krutzkowsky arrived in a marked car. Lullo left the store upon the arrival of the officers and made his way through the parking lot to the scene, where the defendant was yelling profanities at Officer Muniz and waving his arms. At one point, the defendant said "F -- you" to Muniz and, in an upward motion with his finger, hit Muniz in the face. The defendant was then placed under arrest for battery.

Officer Barry Muniz testified that he was employed as an Addison police officer at the time of the incident and was called to the scene at the parking lot to check on an intoxicated subject. Upon seeing the defendant, Muniz observed that he was very intoxicated and told him that he should look for another way home. After further brief small talk about the defendant's drinking, Muniz asked the defendant for identification. The defendant thereupon became upset and started swearing. For two or three minutes, the defendant swore at Muniz and pointed a finger at Muniz' face. Suddenly, the defendant "motioned up with his hand" and struck Muniz in the chin with his fingers; he was placed under arrest for battery and was transported in Muniz' car to the police station.

Officer Muniz further testified that following his booking, the defendant was placed in a holding cell and, pursuant to department regulations, Muniz asked the defendant to surrender his boots. The defendant refused. Officer Muniz called for assistance, and while he and Officer Hardt held the defendant, Officer Pope removed the defendant's boots. During this time, defendant fought the officers, kicking Pope and pushing Hardt against the wall.

Muniz returned to the booking room to finish his report. A short time later, Muniz noticed a foul smell coming from the cell area. Upon investigation, he saw human excrement and toilet paper thrown on the wall.

At the close of the State's case, defendant's counsel moved for a directed verdict on all the charges. In particular, counsel argued that there was inadequate proof that there was any damage to State-supported property. The trial court denied the motion.

Defendant testified that he was changing a flat tire in the parking lot when police officers arrived and asked to see his driver's license. He responded by telling the officers that they knew he did not have the license. He stated that Officer Muniz kept harassing him and that he told Muniz, "Get away from me you Chink." Defendant stated that as he was about to close the trunk of his car, Muniz jumped on him from behind and placed the defendant in a bear hug. Defendant spun around, and his hand went up, accidentally striking the chin of the officer. He was then placed under arrest for battery. Defendant denied being uncooperative at that time.

The defendant stated that he was not taken to booking, but went straight to a holding cell. He was angry over the battery charge because he felt that he did not deserve it and threw some wet, soiled toilet paper on the wall of the holding cell area. About 10 to 15 minutes later, four or five police officers came into the cell, jumped on him, and twisted his arm behind his back; he subsequently noticed that his bootlaces were cut off. ...

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