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January 27, 1994


Appeal from the Circuit Court of Kane County. No. 92-CF-155. Honorable Barry E. Puklin, Judge, Presiding.

Released for Publication March 3, 1994.


The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Defendant, Carlyle Baldwin, was charged with the offenses of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4 (now 720 ILCS 5/12-4 (West 1992))), mob action (Ill. Rev. Stat. 1991, ch. 38, par. 25-1 (now 720 ILCS 5/25-1 (West 1992))), and resisting a peace officer (Ill. Rev. Stat. 1991, ch. 38, par. 31-1 (now 720 ILCS 5/31-1 (West 1992))). After a trial in the circuit court of Kane County, the jury returned verdicts of not guilty on the aggravated battery charge and guilty on the mob action and resisting a peace officer charges. The court sentenced defendant to an extended-term of six years' imprisonment on the mob action conviction, but did not sentence defendant on the resisting a peace officer conviction.

On appeal, defendant contends that: (1) the State did not prove him guilty of mob action beyond a reasonable doubt; (2) the trial court erred in not properly crediting defendant for presentencing time served; and (3) the cause must be remanded to the circuit court with directions to vacate defendant's conviction of resisting a peace officer, rather than remanded for sentencing on that conviction as the State asserts.

On the night of January 25, 1992, at about 11 p.m., the victim, Mark Rank (Rank), and his wife, Marlene Rank (Marlene), were driving home after dining out. They were driving southbound on State Street in Elgin. As they approached the intersection of State and Wing Streets, they saw a woman, later identified as Carla Clements (Clements), trying to get into a car stopped on State Street. They saw a man, later identified as Joseph Johnson (Johnson), pull Clements away from the car and hit Clements in the face. Rank pulled his car to a stop in front of the other car, south of the intersection. He told Marlene to stay in their car, got out, and walked back toward Johnson and Clements. By then, Johnson was forcing Clements west on Wing Street. Rank approached them and told Johnson to leave Clements alone.

Rank testified that as he attempted to intervene between Johnson and Clements, Johnson hit Rank in the face knocking Rank to the street. The next thing Rank recalled was waking up in a hospital emergency room. He had an injury to his upper lip which was split almost in half and required the services of a plastic surgeon to repair; a lost tooth and four other teeth cracked; a concussion; a laceration on his head; and multiple contusions on his stomach, back, and legs.

Rank did not recall anything after being hit and knocked to the ground by Johnson. He did not see defendant at the scene.

Marlene did not see the beating of her husband. She had stayed in their car which was parked around the corner out of sight of the beating.

Clements testified for defendant and essentially corroborated Rank's testimony. On the night of January 25, 1992, she was six months' pregnant with Johnson's child. She was at Johnson's apartment in the 621 Wing Street apartment complex near the intersection of Wing and State Streets. The couple had an argument and Johnson hit Clements. She left the apartment and went to a nearby gas station, where she called the police emergency number. Before completing the call, Clements saw Johnson approaching her, dropped the phone, and began walking along State Street. A car with five women in it stopped. The women asked Clements if she needed a ride. Before Clements could get into the car, however, Johnson grabbed her and pulled her away from the car. Johnson then began forcing Clements back toward his apartment by pushing her west along Wing Street. At this point, Rank appeared and tried to intervene. Clements testified that some of Johnson's friends then came running at Rank and attacked him by kicking and beating him as he lay in the street.

Officer Todd Eschman (Eschman), an Elgin police officer, who was on duty on the night in question, testified as follows. He and his partner, Officer Everett Bell (Bell), were proceeding north on State Street in a squad car in response to an emergency call made from the area of Wing and State Streets. As they approached the intersection, they saw Marlene, standing in the street about 40 feet south of the intersection of Wing and State Streets. The officers stopped their squad car and spoke to Marlene who told them her husband was around the corner trying to break up a fight between a man and a woman. Eschman looked in the direction of the intersection, but could not see around the corner because a building on the southwest corner blocked his view. The intersection was well lit.

The officers then drove the short distance northbound on State Street to its intersection with Wing Street. The intersection is T-shaped with State Street running north and south and Wing Street running west, but not east, from the intersection. Upon reaching the intersection, Eschman saw a group of four or five men on Wing Street just west of State Street. The group was in the turn lane for cars driving eastbound on Wing Street to turn south onto State Street. Officers Eschman and Bell were in uniform. They stopped their squad car so its headlights were pointed directly at the group of men. The squad car's floodlights, red and blue grill lights, and flashing strobe light on the dash were also on.

As he stopped the squad car, Eschman saw four or five men kicking and beating Rank whose body was lying in the street. After the police arrived, the men beating Rank started to flee. Eschman saw defendant, the last man to leave, kick Rank in the midsection and then run. Because Eschman had seen defendant kick Rank, Eschman took particular note of defendant.

Eschman further testified that he ran after four of the fleeing men, including defendant, who ran west on Wing Street toward the apartment complex at 621 Wing Street. Eschman was able to describe the clothes which defendant was wearing. Defendant's clothes were different from the clothes worn by at least two of the other fleeing men.

At 621 Wing Street, one of the fleeing men, whom Eschman then recognized as Johnson, ran into an apartment. The other three, including defendant, continued running behind the apartment buildings. Eschman lost sight of them for "a brief second" as they turned a corner, but regained sight of them when he turned the same corner. The three men were running ...

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