People v. Negray , 2021 IL App (4th) 200024-U ( 2021 )

NOTICE FILED
This Order was filed under 2021 IL App (4th) 200024-U September 14, 2021
Supreme Court Rule 23 and is Carla Bender
not precedent except in the NO. 4-20-0024 4th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
JACOB NEGRAY, ) No. 18CM225
Defendant-Appellant. )
) Honorable
) Scott J. Black,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices DeArmond and Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed, concluding the evidence was insufficient to sustain
defendant’s conviction for resisting a peace officer where it did not show the peace
officer was still engaged in the authorized act of investigating a theft complaint at
the time of the alleged resistance by defendant.
¶2 Following a jury trial, defendant, Jacob Negray, was convicted of resisting a peace
officer and sentenced to 24 months of conditional discharge. Defendant appeals, arguing (1) the
trial court erred when it denied his motion for a directed verdict at the close of the State’s
case-in-chief, (2) the State failed to prove him guilty beyond a reasonable doubt, and (3) trial
counsel provided ineffective assistance by failing to renew the motion for a directed verdict at the
close of all the evidence. Because we conclude the evidence did not show the peace officer was
still engaged in the authorized act of investigating a theft complaint at the time of the alleged
resistance by defendant, we find the evidence is insufficient to sustain defendant’s conviction and
reverse.
¶3 I. BACKGROUND
¶4 A. Misdemeanor Complaint
¶5 In October 2018, the State filed a one-count misdemeanor complaint against
defendant, charging him with the following:
“On or about September 22, 2018, in Livingston County,
Illinois, defendant JACOB B. NEGRAY committed the offense of
RESISTING A PEACE OFFICER (Class A Misdemeanor), in that
said defendant knowingly resisted the performance of Livingston
County Sheriff’s Sergeant J.R. Bunting of an authorized act within
his official capacity, being the investigation into a theft complaint,
knowing Sergeant Bunting to be a peace officer engaged in the
execution of his official duties, in that said defendant physically
struggled with and pulled away from Sergeant Bunting, in violation
of [section 31-1(a) of the Criminal Code of 2012 (Criminal Code)
(720 ILCS 5/31-1(a) (West 2018))].
¶6 B. Jury Trial
¶7 In November 2019, the trial court held a jury trial.
¶8 1. State’s Case-in-Chief
¶9 In its case-in-chief, the State first called Deputy Jason Draper as a witness. Deputy
Draper testified he had been employed with the Livingston County Sheriff’s Department for 16
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years.
¶ 10 On the evening of September 22, 2018, Deputy Draper, who was wearing a uniform
which contained insignia indicating he was a peace officer, was dispatched to investigate a report
of a stolen vehicle. Deputy Draper testified “the report was from [defendant],” and defendant had
indicated his vehicle was parked near a bar. Deputy Draper, assisted by Sergeant Doug Bunting
(also known as Sergeant J.R. Bunting), responded to the bar, where they located the vehicle. They
also located Katie Hirtzig, whom Deputy Draper described as the mother of defendant’s children,
at an apartment near the bar and then spoke with her about the report of a stolen vehicle. After
speaking with Hirtzig, Deputy Draper and Sergeant Bunting drove in a marked patrol vehicle to
defendant’s home.
¶ 11 Upon arriving at defendant’s home, Deputy Draper and Sergeant Bunting spoke
with defendant on the back porch of his home. Deputy Draper described the porch as “pretty long,”
such that it could possibly hold about 12 to 15 people. Deputy Draper testified he first discussed
the report of a stolen vehicle with defendant. Deputy Draper summarized defendant’s account as
follows:
“The defendant stated that [Hirtzig] had taken the vehicle with his
permission. He had called her and wanted the vehicle back. She was
unable to bring the vehicle back. She said he could still have it. It
was behind the driveway of this building. He said he wasn’t going
to go get it because he had the kids [at the home]. And as we were
discussing this, I think he got flustered with the fact that we weren’t
going to arrest her for stealing the vehicle.”
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Deputy Draper testified he then began to discuss the relationship between defendant and Hirtzig
with defendant. Deputy Draper explained:
“I was trying to make him understand that if you are living
with somebody for 13 years,—and I specifically said you are
together with somebody, obviously you are going to share items.
And a truck can’t be stolen, one of these items if you are together
call them in and say that they stole your items from you if you are
using them with their permission.
At that point, he did not like what I had to hear (sic), turned
around and said he was done.”
Deputy Draper testified defendant began walking towards the door to the inside of the house.
Deputy Draper described the next events as follows:
“[Sergeant] Bunting said, hey, stop. He didn’t stop. [Sergeant]
Bunting proceeded to grab him and then he jerked away from
[Sergeant] Bunting[.]”
¶ 12 After Deputy Draper explained the preceding, the following inquiry occurred by
the State:
“Q. Okay. And, okay. So at this point when you are still
engaging in this discussion, are you still investigating the report?
A. Yes, we were.
Q. Okay. And possibly other offenses as well at this point?
A. That is correct.
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Q. Okay. So the investigation was still going on?
A. Yes.
Q. Okay. And is that why you were still wanting to continue
talking to him?
A. Yes.”
¶ 13 Deputy Draper testified he told defendant to stop resisting after he “started pulling
away” from Sergeant Bunting. Sergeant Bunting then took defendant down to the ground by using
an “arm bar” maneuver. Deputy Draper assisted Sergeant Bunting by trying to control one of
defendant’s arms. Deputy Draper believed the struggle ensued for “[m]aybe no longer than 30
seconds or so.” Deputy Draper also believed he told defendant to stop resisting twice.
¶ 14 On cross-examination, Deputy Draper testified he believed defendant was wearing
jeans and shirt during their conversation but acknowledged it was possible defendant was wearing
less clothing. Deputy Draper explained defendant told him he initially gave Hirtzig permission to
use his vehicle but then took back that permission because he needed to use his vehicle to get to
work the next day. Deputy Draper testified both he and Sergeant Bunting posed questions to
defendant but Sergeant Bunting posed most of the questions immediately before the altercation.
Deputy Draper believed Sergeant Bunting told defendant to stop once and then, after about
one-and-a-half seconds, grabbed defendant’s arm. Deputy Draper testified the altercation took
place about 10 to 12 minutes after the conversation commenced with defendant. Deputy Draper
acknowledged defendant was not under arrest when he began to walk towards the door to the inside
of the house. Deputy Draper never heard defendant ask if he was being detained or arrested.
¶ 15 Deputy Draper was asked on cross-examination about an arrestee intake
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questionnaire and a written report, both of which he prepared after the incident. Deputy Draper
testified defendant reported during booking that he had a metal rod in his right leg. Deputy Draper
did not recall if defendant reported being hurt during the incident. Deputy Draper acknowledged
his written report did not state that defendant pulled away from Sergeant Bunting or that he told
defendant to stop resisting. Deputy Draper acknowledged his written report did not indicate
defendant resisted in any fashion. Deputy Draper explained his report did not address defendant’s
resistance because Sergeant Bunting told him he would include such facts in his written report.
¶ 16 The State next called Sergeant Bunting as a witness. Sergeant Bunting testified he
had been employed with the Livingston County Sheriff’s Department for 17 years.
¶ 17 On the evening of September 22, 2018, Sergeant Bunting, who was wearing a
uniform which contained insignia indicating he was a peace officer, was dispatched to investigate
a report of a stolen vehicle. Sergeant Bunting agreed the report of a stolen vehicle was “reported
by” defendant. As part of the investigation, Sergeant Bunting, along with Deputy Draper, spoke
with Hirtzig and then defendant.
¶ 18 Sergeant Bunting testified he and Deputy Draper spoke with defendant on a deck
outside his home about the report of a stolen vehicle. He testified the conversation went on “for a
while” but he could not remember the length of time. Sergeant Bunting testified Deputy Draper
did “most of the interview” with defendant. Sergeant Bunting heard defendant state his girlfriend,
Hirtzig, had taken his vehicle and he wanted to report it stolen. Defendant further stated Hirtzig
regularly used his vehicle, he had given Hirtzig permission to use the vehicle that day, and he
wanted the vehicle back to use it to drive to work.
¶ 19 Sergeant Bunting testified defendant eventually became frustrated during the
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conversation based on the responses he heard from the officers. Sergeant Bunting explained,
“When we told him we weren’t going to take the stolen vehicle report, he became agitated and
began to get louder, more boisterous.” Shortly thereafter, defendant attempted to go back inside
his home. Sergeant Bunting testified he told defendant to stop “[a]t least twice.” After defendant
did not stop, Sergeant Bunting grabbed defendant by his left arm, at which time defendant tried to
“pull away.” He then struggled with defendant for a short period, during which time both he and
Deputy Draper told defendant to stop resisting. Sergeant Bunting eventually used an arm bar
maneuver to take defendant to the ground. Sergeant Bunting testified Deputy Draper assisted with
gaining control of defendant. Sergeant Bunting believed a window was broken during the struggle
with defendant. Defendant was then placed in the back of the patrol vehicle, at which time Sergeant
Bunting heard defendant state he was sorry. Sergeant Bunting also heard defendant acknowledge
being told to stop and state he did not want to listen to the command.
¶ 20 After Sergeant Bunting explained the preceding, the following inquiry occurred by
the State:
“Q. Okay. So at the point where you were telling the
defendant to stop, were you trying to detain him so that you could
investigate further?
A. Yes.
Q. All right. And so talking a little bit I guess about the
investigation process. When you are investigating a report, what are
some of the steps I guess that you take when you are investigating
when someone calls to report something?
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A. We always try to talk to the victim. We always make
contact with the suspect. There is always two sides to a story, so we
want to get both sides. Sometimes report—people will report
something and it will be entirely different. In this example, I will
just say he was reporting a stolen vehicle when it really could have
been a case of domestic violence.
Q. Okay. So just because you get something is reported to
you as an X, that doesn’t necessarily mean that that is what it ends
up being?
A. Correct.
Q. Okay. So when you investigate something, you are
prepared to look into other potential offenses that could have
occurred as well?
A. Yes.”
¶ 21 On cross-examination, Sergeant Bunting testified Hirtzig had shown him text
messages on her phone indicating defendant gave her permission to take the vehicle. Sergeant
Bunting did not recall what defendant was wearing when they arrived at his house but believed he
would have told defendant to go inside and put additional clothes on if he had been only wearing
underwear. Sergeant Bunting acknowledged defendant was not under arrest prior to the altercation.
Sergeant Bunting testified defendant did not ask if he was under arrest prior to turning around and
walking towards the inside of his house. Sergeant Bunting believed defendant was about three to
five feet away from him before he told him to stop. Sergeant Bunting testified defendant did not
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comply and then continued toward the house and opened the door. Sergeant Bunting believed the
estimate of about one to two seconds was “probably close” for how long it took from the moment
he told defendant to stop until he grabbed him. Sergeant Bunting testified Deputy Draper also told
defendant to stop at least once. Sergeant Bunting testified defendant never stated he was in pain
nor did he accept medical attention when it was later offered to him. When asked if he there were
any weapons on or near defendant, Sergeant Bunting testified, “I didn’t see any at that time,” but
then noted, “[t]echnically, everything is a weapon.” Sergeant Bunting acknowledged it may have
been some light bulbs that were broken during the struggle with defendant.
¶ 22 Sergeant Bunting was asked on cross-examination about a written report he
prepared after the incident. Sergeant Bunting acknowledged his written report did not indicate that
he told defendant to stop more than once and to stop resisting or that Deputy Draper told defendant
to stop and then assisted in taking defendant to the ground. Sergeant Bunting explained he would
not document “things that regularly occur” or repeated statements. Sergeant Bunting initially
testified he did not speak with Deputy Draper about preparing the written reports. He later testified
he probably spoke with Deputy Draper about how they would handle the “stolen vehicle report.”
¶ 23 Following Sergeant Bunting’s testimony, the State rested its case.
¶ 24 2. Motion for a Directed Verdict
¶ 25 After the State rested its case, the trial court excused the jurors. Defendant then,
through trial counsel, moved for a directed verdict, arguing the State had “not made out a
prima facie case.” The court denied defendant’s motion.
¶ 26 3. Defendant’s Case-in-Chief
¶ 27 Defendant elected to testify in his defense. Defendant testified, on the evening of
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September 22, 2018, his girlfriend, Hirtzig, left after an argument between the two of them. Prior
to doing so, defendant told Hirtzig not to take his vehicle as he had to leave for work early the next
morning. Hirtzig left with defendant’s vehicle. Defendant called the police and reported his vehicle
had been taken. Two police officers later arrived at his home. Defendant testified he spoke with
the officers from a breezeway leading to his deck for about five minutes. At the time, he was
wearing only his underwear. He also noted large, nine-foot halogen light bulbs were located in the
breezeway.
¶ 28 Defendant testified Deputy Draper stated Hirtzig “had unprecedented access and
rights to take [his vehicle] whenever she needed to” because they lived together. Defendant
disagreed with Deputy Draper’s statement, noting his vehicle was registered in only his name.
Defendant testified both officers repeatedly asked if he wanted to press charges, to which
defendant indicated he did not and simply wanted his vehicle returned. Defendant testified the
officers called him “a criminal” and “an over-controlling boyfriend.” Defendant testified the
officers also suggested he and Hirtzig had “an abusive relationship.” At that point, defendant
testified, Deputy Draper backed away but Sergeant Bunting was within a few feet of him and
“about two notches below shouting,” which made him feel very uncomfortable. Sergeant Bunting
then asked why defendant was “making movements,” to which defendant stated he was not making
movements but was rather cold because he was standing outside in his underwear. Sergeant
Bunting then reportedly continued saying defendant was “a bad individual and a criminal.”
Defendant asked what the officers “were going to do,” to which Sargent Bunting said, “he wasn’t
too for sure yet.” Defendant testified he asked if he was detained or under arrest, to which Sergeant
Bunting indicated he was not. At that point, defendant said, “great; cancel my order, my phone
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call.” He followed up with “if you guys don’t want to do it, let’s just be done, I will call Grandma,
I will get a ride to work. Thank you for your time.” Defendant then turned around and walked
away from the officers.
¶ 29 Defendant testified the events after he walked away from the officers happened
“very, very quickly.” Defendant testified he “made about three steps in” when he heard, “hey, we
are not done talking to you.” Defendant testified he responded, “it is my Fifth Amendment. I am
done talking. I am not under arrest.” He then heard, “stop resisting arrest,” at which point he began
to turn his head while reaching for the doorknob with his right hand. His arm then involuntarily
came up behind his back, and he was knocked off balance into the corner where the light bulbs
were located, breaking them as he fell into them. Defendant testified he was then “picked up by
my underwear, pulled all the way back, slammed down on the deck.” At that point, Deputy Draper
reportedly approached and asked, “[W]hat is going on here[?]” Deputy Draper then put his hand
on his defendant’s shoulder. Sergeant Bunting placed his knee on defendant’s back and told
Deputy Draper to get the patrol vehicle. Defendant testified he told Sergeant Bunting he was in
pain and had a metal rod in his leg, to which Sergeant Bunting “kind of chuckled and he pushed
his knee further into my back.” Defendant testified he told Sergeant Bunting, “I completely give
up.” Sergeant Bunting released defendant after Deputy Draper returned. He was then taken to the
patrol vehicle. While inside the patrol vehicle, defendant told Deputy Draper he was sorry, and
Deputy Draper “agreed that things had seemed to have gotten out of line really quick by the
sergeant.” Defendant testified he was not given a chance to turn around after he was told to stop
and he did not intend to resist any arrest.
¶ 30 On cross-examination, defendant testified he and Hirtzig had been dating “[o]n and
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off for about 14 years.” Defendant did not expect the police officers to show up at his home. He
testified he did not give Hirtzig permission to use his vehicle and he stated the same to the police
officers. Defendant testified he did not report his vehicle as stolen but rather “called them to have
my [vehicle] returned.” Defendant agreed he told the officers he wanted to report his vehicle as
stolen and have Hirtzig arrested if she was not going to return his vehicle. Defendant acknowledged
stating to the officers that he heard Sergeant Bunting tell him to stop and he did not want to listen.
¶ 31 On redirect examination, defendant testified he did not expect the police officers to
show up at his home because he and Hirtzig had the same issue the year before and Hirtzig returned
his vehicle after a police officer called her. Defendant also testified he told the police officers he
did not want to press charges because he “would have to go get her.” Defendant testified he stated
to the officers he did not want to listen to them because he was not under arrest.
¶ 32 Following his testimony, defendant rested his case.
¶ 33 4. State’s Rebuttal Case
¶ 34 In rebuttal, the State first recalled Deputy Draper as a witness. Deputy Draper
testified neither he nor Sergeant Bunting made statements to defendant indicating he was a
controlling or abusive boyfriend, a bad individual, or a criminal. Deputy Draper testified defendant
never asked if he was detained or under arrest. Deputy Draper did not believe Sergeant Bunting
was shouting, or close to shouting, at defendant.
¶ 35 On recross-examination, Deputy Draper acknowledged he left to get the patrol
vehicle after defendant was taken to the ground. He also acknowledged giving defendant
relationship advice.
¶ 36 The State next recalled Sergeant Bunting as a witness. Sergeant Bunting testified
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he did not recall making any statement to defendant indicating he was a controlling or abusive
boyfriend, a bad individual, or a criminal. Sergeant Bunting testified defendant never asked if he
was detained or under arrest or stated he was in pain. Sergeant Bunting testified he had a
conversational tone with defendant.
¶ 37 Following Sergeant Bunting’s testimony, the State rested its rebuttal case.
¶ 38 5. Closing Arguments
¶ 39 In closing, the State argued that the evidence showed defendant had committed the
offense of resisting a peace officer. With respect to whether defendant knowingly resisted the
performance of Sergeant Bunting of an authorized act within his official capacity, the State
asserted:
“So what do we know happened? We know that both officers
were responding to this report for a stolen vehicle. That there is some
conversation between them and the defendant. That he gets upset,
he is angry. He is agitated. That he turns and says the heck with this,
basically, and to go inside. They tell him to stop. They tell him to
stop multiple times. And they tell him to stop resisting multiple
times. That in the midst of when they are telling him to stop, Sgt.
Bunting tries to make him stop and grabs his arm. And he is pulling
away and he is struggling with them. And this goes on for about 30
seconds. And then he said they were able to, between the two of
them, get him to the ground and kind of get him secured so that he
can’t, you know, fight with them anymore.
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So this is resisting, Ladies and Gentlemen. This is resisting,
pulling away, struggling with police officers when they are telling
you to stop and stop resisting. You can’t can [sic] do that. That is
resisting a peace officer. That is resisting the performance of an
authorized act within his official capacity. He is trying to investigate
this crime. He is trying to stop him from going inside. He is trying
to detain him so he can investigate. So that is what the defendant is
doing.
You know, in addition, I would note that the defendant did
state that he heard them say that, tell him to stop. He heard them.
And he decided he didn’t want to. So we know that he told them that
when they were in the squad car afterwards. Even admitted when he
was testifying that he didn’t want to admit to that, but he even
admitted, yes, I said that. I said that I heard them tell me to stop; I
didn’t want to listen.
That is what happened here, Ladies and Gentlemen. He was
told to stop. He was told to stop resisting. He ignored it. He didn’t
want to listen to them. He was agitated. He was angry. He wasn’t
getting his way. And so he was resisting them. That is what
happened here. And I would ask that you find him guilty.”
¶ 40 In response, the defense argued the State had not met its burden of proving
defendant committed the offense of resisting a peace officer. In support, the defense initially
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asserted the testimony from the police officers was not credible given the inconsistencies with their
written reports. Alternatively, the defense asserted, even if the testimony from the officers was
credible, defendant was not given an opportunity to obey Sergeant Bunting’s command to stop and
any subsequent struggle was because he was in pain as opposed to an attempt to resist the officers.
¶ 41 In rebuttal, the State initially asserted the testimony from the police officers as
opposed to the testimony from defendant was credible. The State then asserted:
“[T]hey tried to stop him and then he continued to resist. He was
pulling away. I think that is the key here, you know, that we are
missing is that it’s not that the defendant didn’t stop; it is that the
defendant—they were trying to stop him and then they got into a
struggle with him because he still wasn’t stopping. Even after they
told him to stop resisting, he is still pulling away and struggling with
them until between, you know, the two of them, they are able to
subdue him. ***
***
You know, that, you know, we teach children that, you
know, they need to obey authority. That, you know, they need to
listen. And I would argue that we should expect the same thing out
of the defendant, that you don’t get to just turn around and leave
when officers are telling you to stop because they are in an
investigation, that once they are telling you to stop, you need to stop.
But even more so, once they grab you and they are trying to stop
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you, certainly, you can’t physically resist them. Certainly, you can’t
start pulling away and fighting with them.”
¶ 42 6. Jury Verdict
¶ 43 Following its deliberations, the jury returned a verdict finding defendant guilty of
resisting a peace officer.
¶ 44 C. Sentencing Hearing
¶ 45 In December 2019, the trial court held a sentencing hearing. Based on the evidence
and recommendations presented, the court sentenced defendant to 24 months of conditional
discharge, which was subject to certain terms and conditions, including the performance of 150
hours of community service and the participation in an anger management evaluation and any
recommended treatment.
¶ 46 This appeal followed.
¶ 47 II. ANALYSIS
¶ 48 On appeal, defendant argues (1) the trial court erred when it denied his motion for
a directed verdict at the close of the State’s case-in-chief, (2) the State failed to prove him guilty
beyond a reasonable doubt, and (3) trial counsel provided ineffective assistance by failing to renew
the motion for a directed verdict at the close of all the evidence. The State disagrees with each of
defendant’s arguments.
¶ 49 We begin with defendant’s challenge to the sufficiency of the evidence. Defendant
asserts the State failed to present sufficient evidence to establish (1) Sergeant Bunting was still
engaged in the authorized act of investigating a theft complaint at the time of the alleged resistance,
(2) he had the requisite intent to resist the investigation into the theft complaint where the officers
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had indicated the investigation had concluded, and (3) the alleged resistance was anything more
than a de minimis reflex.
¶ 50 When presented a challenge to the sufficiency of the evidence, our inquiry is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
People v. Jackson, 2020 IL 124112, ¶ 64, 162 N.E.3d 223. “A criminal conviction will not be set
aside on a challenge to the sufficiency of the evidence unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Id.¶ 51 In this case, defendant was charged with committing the offense of resisting a peace
officer in violation of section 31-1(a) of the Criminal Code (720 ILCS 5/31-1(a) (West 2018)).
Section 31-1(a) provides, “A person who knowingly resists or obstructs the performance by one
known to the person to be a peace officer *** of any authorized act within his or her official
capacity commits a Class A misdemeanor.” Id. Thus, to prove defendant guilty of resisting a peace
officer, the State had to present evidence establishing, among other things, Sergeant Bunting was
still engaged in an authorized act at the time of the alleged resistance by defendant. See People v.
Slaymaker, 2015 IL App (2d) 130528, ¶ 12, 27 N.E.3d 642 (“[I]f [the peace officer] was not
engaged in an authorized act when defendant resisted, defendant’s conviction must be reversed.”).
¶ 52 Defendant asserts the State failed to present sufficient evidence to establish
Sergeant Bunting was still engaged in the authorized act, as charged, of investigating a theft
complaint at the time of his alleged resistance. The State, in response, asserts it presented sufficient
evidence to establish Sergeant Bunting was still engaged in the authorized act of investigating
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defendant’s report of a stolen vehicle and any other crime brought to his attention as a result at the
time of defendant’s alleged resistance.
¶ 53 The evidence presented at trial, viewed in the light most favorable to the
prosecution, shows (1) Sergeant Bunting and Deputy Draper were dispatched to investigate a
report of a stolen vehicle made by defendant, (2) the officers located the vehicle, (3) the officers
located and interviewed the suspect, (4) the officers spoke with defendant outside his home about
the report, (5) Deputy Draper informed defendant they were not “going to arrest [the suspect] for
stealing the vehicle,” (6) Sergeant Bunting informed defendant they “weren’t going to take the
stolen vehicle report,” (7) Deputy Draper began discussing the relationship between defendant and
Hirtzig with defendant, and (8) defendant attempted to end the conversation and return inside his
home. Only after the preceding events, did the alleged resistance occur by defendant.
¶ 54 From the evidence presented, we fail to see how any rational trier of fact could have
found Sergeant Bunting was still investigating the theft complaint at the time of the alleged
resistance by defendant. While the State continues to rely upon the testimony from the officers
suggesting an investigation was ongoing, we find that conclusory and vague testimony insufficient
in light of the other testimony presented. We conclude insufficient evidence was presented to
establish Sergeant Bunting was still engaged in the authorized act of investigating the theft
complaint at the time of the alleged resistance by defendant. The evidence is insufficient to sustain
defendant’s conviction, and we need not address the other arguments presented in this appeal.
¶ 55 In so finding, we emphasize our decision is limited to the specific facts and
circumstances of this case. Interestingly, the State did not allege in the charging instrument or
pursue a theory at trial suggesting defendant’s resistance was unlawful in that it occurred when
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Sergeant Bunting was engaged in the authorized act of detaining defendant. Had it done so, case
law indicates the State would have been required to establish the detention, which was
undisputedly not an arrest, was lawful in order to sustain a conviction for resisting a peace officer.
See People v. Shipp, 2015 IL App (2d) 130587, ¶ 51, 34 N.E.3d 204. The State, on appeal, further
does not present any written argument, even after defendant argued in his opening brief that his
detention was unlawful, suggesting defendant’s conviction may be sustained based upon
defendant’s alleged resistance to Sergeant Bunting’s act of detaining him. In fact, in response to
the case law defendant cites to support his argument, the State asserts that case law “is irrelevant
to the issue of the officer[’]s authority to investigate a crime reported by the defendant himself.”
Accordingly, our inquiry, given the charging instrument, the manner in which the case was
prosecuted, and the arguments presented on appeal, has been limited to whether the State presented
sufficient evidence to establish Sergeant Bunting was still engaged in the authorized act of
investigating a theft complaint at the time of the alleged resistance by defendant.
¶ 56 III. CONCLUSION
¶ 57 We reverse the trial court’s judgment.
¶ 58 Reversed.
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