Appeal from the Circuit Court of Carroll County. No. 12-CF-72. Honorable Val Gunnarsson, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant, DeAndrea Jones, was convicted of aggravated battery to a peace officer (720 ILCS 5/12-4(b)(18) (West 2010)) and obstructing a peace officer (720 ILCS 5/31-1(a) (West 2010)). The trial court sentenced him to five years' imprisonment. He appeals, contending that the State failed to prove beyond a reasonable doubt that the officer was engaged in an authorized act, as required for a conviction of obstructing. We affirm in part and reverse in part.
[¶2] Defendant was charged with aggravated battery and obstructing. He was also charged with domestic battery by making contact of an insulting or provoking nature with Susanne Guzman. That charge was severed before trial and is not at issue here.
[¶3] At trial, Phillip Small testified that on December 16, 2013, he was on his front porch when he saw a man get dropped off at a house across the street. The man, defendant, who appeared to have been drinking, crawled up the stairs. Small heard a man and a woman arguing and " stuff breaking." This argument lasted three or four minutes. Small then called the police.
[¶4] Savanna police officer John Loechel testified that he responded to a report of a " physical domestic." He saw Small standing in the doorway of his house. Small pointed across the street, where Loechel saw defendant and Guzman on the porch arguing. The porch was enclosed, with several windows and a screen door. Loechel knocked on the door and identified himself as a police officer. He opened the door, announced that he was there to investigate a domestic disturbance, and asked what the problem was. Defendant informed Loechel that there was no problem.
[¶5] Loechel told defendant that there would not be arguing if there were no problem. He asked defendant to step outside to discuss the situation, but defendant refused. In response to several such requests, defendant asserted that it was his house and that Loechel needed to leave. Defendant continued swearing at Loechel.
[¶6] Loechel testified that he was concerned about the safety of all involved at that point. He could smell alcohol coming from both parties, and he did not know whether anyone else was inside the house.
[¶7] Defendant then started walking back toward the main door of the house. Loechel grabbed his arm and tried to arrest him. Defendant started pushing and pulling away, so Loechel took him to the ground. Defendant began to kick the officer repeatedly. Loechel told him to stop resisting and that he was under arrest for resisting.
[¶8] At some point, Guzman ran over, yelling at Loechel to get off of defendant and pushing him. Loechel grabbed her arm and took her down also. He then pushed defendant out through the porch door. Outside in the yard the struggle continued, with Loechel trying to get defendant into handcuffs. Defendant tried to get Loechel into a headlock. Loechel got loose and drew his firearm, then backed away to catch his breath. Defendant continued swearing at him and started to walk back toward the house. Loechel holstered his firearm and followed defendant back toward the house. Additional officers eventually arrived to help with the arrest. Deputy Koepping tased defendant twice and he was eventually taken into custody.
[¶9] The jury found defendant guilty on both counts and the trial court sentenced him to five years' imprisonment. Defendant timely appeals.
[¶10] Defendant contends that the State did not prove him guilty beyond a reasonable doubt of obstructing. He notes that a conviction of obstructing requires that the officer be engaged in an " authorized act" within his official capacity. 720 ILCS 5/31-1(a) (West 2010). He contends that, once he assured Loechel that there was no problem and asked him to leave, and where Guzman neither exhibited injuries nor requested assistance, Loechel's investigation was finished and his remaining in defendant's home was unauthorized. We agree.
[¶11] Defendant was convicted of violating section 31-1 of the Criminal Code of 1961, which provides that one who " knowingly resists or obstructs the performance by one known to the person to be a peace officer *** of any authorized act within his official capacity commits a Class A misdemeanor." 720 ILCS 5/31-1(a) (West 2010). Generally, " authorized act" means simply an act of a type that an officer is authorized to perform. See People v. Pickett, 34 Ill.App.3d 590, 597, 340 N.E.2d 259 (1975). Where the authorized act is an arrest, the inquiry usually ends because a defendant is not privileged to resist even an unlawful arrest. City of Champaign v. Torres, 214 Ill.2d 234, 241-42, 824 N.E.2d 624, 291 Ill.Dec. 768 (2005) (citing 720 ILCS 5/7-7 (West 2002)). Where, however, the officer's act is the entry into (or remaining within) the defendant's home, section 7-7 does not apply. Id. at 243. Thus, an officer's entry into the defendant's home in violation of the fourth amendment is not an " authorized act" for purposes of section 31-1 ( id. (citing People v. Swiercz, 104 Ill.App.3d ...