People v. Norberg ( 2021 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190215-UOrder filed September 29, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0215
v. ) Circuit No. 18-CF-104
)
AUSTIN D. NORBERG, ) Honorable
) Terence M. Patton,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court.
Justices Holdridge and Lytton concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: Defendant’s conviction of resisting a peace officer violated the one-act, one-crime
doctrine.
¶2 Defendant, Austin D. Norberg, appeals his convictions for aggravated battery and
resisting a peace officer, arguing that the less serious conviction violates the one-act, one-crime
doctrine. We affirm in part and vacate in part.
¶3 I. BACKGROUND
¶4 Defendant was charged with two counts of aggravated battery (720 ILCS 5/12-3.05(d)(4)
(West 2018)), one count of resisting a peace officer (id. § 31-1(a-7)), and one count of fleeing or
eluding a peace officer (625 ILCS 5/11-204(a) (West 2018)). Relevant to this appeal, count II for
aggravated battery alleged that defendant
“knowingly caused bodily harm to Derek Hendrick, in that said defendant drove
away from the scene while *** Hendrick was holding on to the defendant’s wrist,
causing *** Hendrick to be struck by the vehicle door and causing bruising and
pain to *** Hendrick, knowing *** Hendrick to be a peace officer who was
engaged in the execution of his official duties.”
Count IV for resisting a peace officer alleged that defendant
“knowingly resisted the performance of *** Hendrick of an authorized act within
his official capacity, being the investigation of said defendant, knowing ***
Hendrick to be a peace officer engaged in the execution of his official duties, in
that said defendant shifted his vehicle into drive and accelerated, causing injury to
*** Hendrick’s arm and back.”
¶5 A jury trial was held, and Deputy Derek Hendrick testified that he was on duty when he
observed defendant, in the driver’s seat of a vehicle, parked at a gas station. Hendrick
approached the driver’s side of the vehicle and told defendant to exit the vehicle. After defendant
refused to exit the vehicle, Hendrick opened the driver’s side door and grabbed defendant by the
arm. As Hendrick reached for his handcuffs, defendant began to drive away, causing Hendrick to
be caught in the doorframe. The vehicle door hit Hendrick, causing bruising to his arm and ribs.
¶6 The jury found defendant guilty of one count of aggravated battery, resisting a peace
officer, and fleeing or attempting to elude a peace officer. Defendant was sentenced to
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concurrent terms of eight years’ imprisonment for aggravated battery, four years’ imprisonment
for resisting a peace officer, and 364 days in jail for fleeing or attempting to elude a peace
officer.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that his conviction for resisting a peace officer violates the
one-act, one-crime doctrine because it was based on the same physical act as the aggravated
battery conviction. Defendant argues that his conviction for resisting a peace officer must be
vacated. The State contends that there was no violation of the one-act, one-crime doctrine
because there were two separate acts that led to defendant’s convictions.
¶9 Defendant concedes that he forfeited this issue by failing to raise it at trial or in a posttrial
motion but asks us to conduct plain error review. See People v. Enoch, 122 Ill. 2d 176, 186
(1988). A reviewing court may consider an unpreserved issue when
“(1) a clear or obvious error occurred and the evidence is so closely balanced that
the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
This issue may be reviewed under the second prong of the plain error analysis because a one-act,
one-crime violation affects the integrity of the judicial process. People v. Harvey, 211 Ill. 2d 368,
389 (2004). The application of the one-act, one-crime doctrine is reviewed de novo. People v.
Coats, 2018 IL 121926, ¶ 12.
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¶ 10 Under the one-act, one-crime doctrine, “a defendant may not be convicted of multiple
offenses that are based upon precisely the same single physical act.” People v. Johnson, 237 Ill.
2d 81, 97 (2010). However, multiple convictions are permitted when the defendant has
“committed several acts, despite the interrelationship of those acts.” People v. King, 66 Ill. 2d
551, 566 (1977). We employ a two-step analysis to determine whether there was a violation of
the one-act, one-crime doctrine. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). First, it must
be determined “whether the defendant’s conduct consisted of a single physical act or separate
acts.” Coats, 2018 IL 121926, ¶ 12. The definition of an “act” for the purposes of the one-act,
one-crime doctrine is “ ‘any overt or outward manifestation which will support a different
offense.’ ” Rodriguez, 169 Ill. 2d at 188 (quoting King, 66 Ill. 2d at 566). If there was only one
physical act, the less serious conviction must be vacated. Johnson, 237 Ill. 2d at 97. “If it is
determined that the defendant committed multiple acts, the court then moves to the second step
and determines whether any of the offenses are lesser-included offenses.” Coats, 2018 IL
121926, ¶ 12. The less serious offense is the one which carries the less serious punishment.
People v. Artis, 232 Ill. 2d 156, 170 (2009). The convictions are proper if there are no lesser-
included offenses. Coats, 2018 IL 121926, ¶ 12.
¶ 11 We must first determine whether defendant’s conduct consisted of separate acts or a
single physical act. See id. Defendant was convicted of aggravated battery, which required the
State to prove that he knowingly caused bodily harm to an individual or made physical contact of
an insulting or provoking nature with an individual, and that he knew the individual to be a peace
officer. See 720 ILCS 5/12-3.05(d)(4) (West 2018). Defendant was also convicted of the Class 4
felony form of resisting a peace officer, which required the State to show that he knowingly
resisted the performance by one known to the person to be a peace officer of any authorized act
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within his or her official capacity (id. § 31-1(a)), and that defendant’s violation was the
proximate cause of an injury to a peace officer (id. § 31-1(a-7)).
¶ 12 Defendant argues that his convictions for aggravated battery and resisting a peace officer
derive from his single act of driving away which both knowingly caused bodily harm to and
proximately caused injury to Hendrick. We agree. Hendrick was struck by the door of
defendant’s vehicle as defendant drove away. This door strike, which derived from defendant’s
single act of driving away, was the sole cause of Hendrick’s injuries. Therefore, it cannot serve
as the basis for both his aggravated battery and resisting a peace officer convictions.
Accordingly, we vacate the resisting a peace officer conviction as it is the lesser offense—
resisting a peace officer is a Class 4 felony (id.), and the aggravated battery in this case is a Class
2 felony (id. § 12-3.05(d)(4), (h)).
¶ 13 III. CONCLUSION
¶ 14 The judgment of the circuit court of Henry County is affirmed in part and vacated in part.
¶ 15 Affirmed in part and vacated in part.
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