People v. Nasolo

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Nasolo, 2012 IL App (2d) 101059
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KHADIJAH S. NASOLO, Defendant-Appellant.
District & No. Second District
Docket No. 2-10-1059
Filed March 28, 2012
Modified upon denial
of rehearing April 23, 2012
Held Defendant’s convictions for two counts of resisting or obstructing a peace
(Note: This syllabus officer were upheld over her contention that there was no evidence she
constitutes no part of committed a physical act of resistance as to the second count, but her
the opinion of the court fines were reduced to reflect the correct calculation of the Violent Crime
but has been prepared Victims Assistance Fund and a $5 credit against the mental-health-court
by the Reporter of fine for the one day she was in custody before trial.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 10-CM-2290; the
Review Hon. George D. Strickland, Judge, presiding.
Judgment Affirmed as modified.
Counsel on Thomas A. Lilien and Christopher McCoy, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices Zenoff and Hudson concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Khadijah S. Nasolo, was convicted of two counts of
resisting or obstructing a peace officer (720 ILCS 5/31-1(a) (West 2010)). She appeals,
contending that one of the convictions should be reversed because the State presented no
evidence that she committed a physical act of resistance. She further contends that her fines
should be reduced. We affirm as modified.
¶2 Defendant was charged with two counts of resisting following an incident on May 15,
2010. The first count alleged that defendant “pulled away from Officer Travis Dragicevich
as he took her into custody.” The second count alleged that she obstructed the booking
process in that she “refused to be fingerprinted or photographed.”
¶3 At trial, Officer Robert Wagner testified that he received a report that a woman was
sleeping at the Highland Park fire station. He went there and found defendant in the vestibule
area. She appeared to be intoxicated. Dragicevich arrived at the fire station. Dragicevich
checked his computer and found that defendant had an outstanding warrant.
¶4 Dragicevich testified that he attempted to place defendant under arrest. Defendant
insisted that she did not have a warrant and refused to place her hands behind her back. She
pulled away as the officers grabbed her arms. Even after the officers handcuffed her,
defendant continued “twisting around.” They eventually took her to the ground and
Dragicevich was able to get her into his squad car.
¶5 At the police station, Dragicevich began the booking paperwork. He got much of the
needed information from defendant’s driver’s license, but needed additional information.
Defendant refused to give it to him. He asked defendant to be fingerprinted and “she
refused.” He also asked her to be photographed and “she refused.” The jury found defendant
guilty of both counts of resisting, and the trial court sentenced her to one year of conditional
discharge. In addition, defendant was assessed, among other charges, a $10 mental-health-
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court fine and a $40 Violent Crime Victims Assistance Fund fine. Defendant timely appeals.
¶6 Defendant does not challenge her conviction on the first count, which alleged that she
physically resisted being arrested. She contends, however, that the conviction on the second
count cannot stand because the State presented no evidence of a physical act of resistance.
¶7 When a defendant challenges on appeal the sufficiency of the evidence, we ask only
whether, after viewing all the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found all the elements of the offense beyond a reasonable
doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). As a reviewing court, we may not
substitute our judgment for that of the trier of fact on questions involving the weight of the
evidence, the witnesses’ credibility, or the resolution of conflicting testimony. People v.
Jackson, 232 Ill. 2d 246, 280-81 (2009).
¶8 Defendant contends that her refusal to be fingerprinted or photographed amounted to
“mere argument,” rather than a physical act. In People v. Raby, 40 Ill. 2d 392 (1968), the
supreme court, in rejecting the defendant’s contention that section 31-1 of the Criminal Code
of 1961 (now 720 ILCS 5/31-1 (West 2010)) was vague and overbroad, held that resisting
required “some physical act” that impeded or hindered an officer’s duties; “mere argument”
with the police was insufficient. (Internal quotation marks omitted.) Id. at 399. In People v.
Weathington, 82 Ill. 2d 183, 185-86 (1980), the court held that a defendant who refused to
answer routine booking questions could not be convicted of obstructing.
¶9 This court recently followed Weathington, holding that a defendant who refused to give
officers his name could not be charged with obstructing. People v. Fernandez, 2011 IL App
(2d) 100473. In Fernandez, the defendant refused to leave a movie theater. Police officers
were called to the scene and asked the defendant his name. He refused to answer and was
charged with obstructing a police officer. In reversing, this court noted that there is no
obligation to answer the questions of a police officer in the context of a Terry stop and held
that the defendant’s refusal to answer the questions could not support a conviction of
obstructing. We do not disagree with this conclusion.
¶ 10 In contrast, here, the refusal to comply was not in the context of a Terry stop. Rather,
defendant’s refusal to be photographed or fingerprinted was in the course of booking
procedures. In Weathington, the court instructed that, during a booking procedure, when a
defendant initially refuses to answer questions for a brief time and then complies, the refusal
can be considered mere argument and, thus, no offense is committed. Weathington, 82 Ill.
2d at 185-86. However, Weathington did not consider the consequence of a complete refusal,
as presented here.
¶ 11 Recently, the supreme court observed that Raby was concerned primarily with
constitutional considerations and that “criminalizing verbal conduct may run afoul of free
speech and other constitutionally protected conduct.” People v. Baskerville, 2012 IL 111056,
¶ 20. According to the court, focusing solely on whether conduct is “active” or “passive” is
overly simplistic. Rather, the focus should be on whether the defendant actually obstructed
the officers in performing their duties. Id. ¶ 23. “Although a person may commit obstruction
of a peace officer by means of a physical act, this type of conduct is neither an essential
element of nor the exclusive means of committing an obstruction.” Id.
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¶ 12 This court has previously recognized that “passive” conduct that obstructs the police can
amount to resistance. In People v. Synnott, 349 Ill. App. 3d 223, 228 (2004), the defendant
repeatedly refused an officer’s order to exit his vehicle. In People v. Ostrowski, 394 Ill. App.
3d 82, 88 (2009), the defendant was “ ‘flinching’ ” and “pulling away” from officers for
several seconds as they attempted to handcuff him. These cases make clear that the focus is
on whether the officers were actually obstructed, not on an artificial distinction concerning
whether the defendant committed a “physical act.”
¶ 13 Here, it is clear that defendant actually obstructed the officers, regardless of whether she
can be said to have committed a physical act. It is clear that Dragicevich was actually
impeded from completing the booking process due to defendant’s refusal to be fingerprinted
or photographed. In Weathington, on which defendant primarily relies, the court noted that
the defendant eventually answered the booking questions and it held that where the
defendant, “after an indefinite but certainly a brief time, did answer the questions, no offense
took place.” Weathington, 82 Ill. 2d at 187. Here, there was more than a brief delay;
defendant completely refused to be either fingerprinted or photographed. This clearly
obstructed the officers in completing the booking process.
¶ 14 Defendant further contends that her fines must be reduced, a contention with which the
State agrees. As part of defendant’s sentence, she was assessed a $10 mental-health-court
fine and a $40 Violent Crime Victims Assistance Fund fine. Defendant contends, and the
State agrees, that the crime-victims fine must be reduced to $16 and the mental-health-court
fine reduced to $5. We agree with the parties.
¶ 15 The propriety of the fines is a matter of statutory construction that we review de novo.
People v. Price, 375 Ill. App. 3d 684, 697 (2007). The statute authorizing the Violent Crime
Victims Assistance Fund fine provides that the court shall collect from a convicted defendant
“an additional penalty of $4 for each $40, or fraction thereof, of fine imposed.” 725 ILCS
240/10(b) (West 2010). Here, defendant was assessed $150 in other fines. The $150 can be
divided into three $40 segments, plus an additional $30. Thus, we reduce the crime-victims
fine to $16.
¶ 16 Defendant was also assessed a $10 fine for the mental-health court. Defendant argues that
she is entitled to a $5 credit toward that fine because she spent part of a day in custody before
trial. A defendant incarcerated on a bailable offense is entitled to a $5 credit against certain
fines for each day that he or she was incarcerated before sentencing. 725 ILCS 5/110-14(a)
(West 2010). Here, there is no dispute that defendant was jailed for at least part of one day
and is thus entitled to a $5 credit. Accordingly, we modify the judgment to reduce
defendant’s mental-health-court fine by a $5 credit.
¶ 17 The judgment of the circuit court of Lake County is affirmed as modified.
¶ 18 Affirmed as modified.
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