2024 IL App (1st) 230830-U No. 1-23-0830 Order filed July 17, 2024 Third Division
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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ XAVIER PATTERSON, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 17 L 3053 ) VILLAGE OF RIVER FOREST and SETH DEYOUNG, ) Honorable ) Scott D. McKenna, Defendants-Appellees. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment.
ORDER
¶1 Held: Where plaintiff sued the village and the detective for malicious prosecution, the defendants were entitled to summary judgment because there was probable cause to believe the plaintiff had committed criminal sexual assault.
¶2 After plaintiff Xavier Patterson was acquitted of the charge of criminal sexual assault of a
college classmate, he sued defendant Seth DeYoung, a former detective of the River Forest Police
Department (RFPD), for malicious prosecution. Plaintiff also sued defendant Village of River
Forest (the Village) for derivative claims of respondeat superior and indemnification. The case No. 1-23-0830
was fully litigated through discovery, after which the circuit court awarded summary judgment in
favor of defendants and against plaintiff on the basis that probable cause supported plaintiff’s
charging.
¶3 On appeal, plaintiff argues that defendants were not entitled to summary judgment because
a reasonable jury could find that the classmate’s allegations lacked credibility and thus failed to
confer probable cause to prosecute plaintiff. Plaintiff also argues that the circuit court’s summary
judgment rests on an impermissible credibility determination.
¶4 For the reasons that follow, we affirm the judgment of the circuit court.1
¶5 I. BACKGROUND
¶6 On the morning of May 4, 2011, RFPD Officer Sarah Arrigo was dispatched to a university
campus regarding a report of criminal sexual assault. At the university, security personnel said that
they had received a telephone call from Jane Doe’s mother, who advised security that someone
gained access to her daughter’s dorm room and made her do things that she did not want to do.
Jane, her mother, and her boyfriend were in Jane’s room waiting for the police. The security
supervisor walked Jane, her mother, and her boyfriend to another room where Officer Arrigo
obtained statements from them. Officer Arrigo’s report does not indicate that she spoke to Jane in
the presence of her mother and boyfriend.
¶7 According to Officer Arrigo’s case report, Jane’s boyfriend received several text messages
from Jane to the effect of “wake up,” “emergency,” and “I want to go home.” He told Officer
Arrigo that when he spoke to Jane by telephone, she told him that she was up late studying for a
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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final examination, fell asleep, and woke up with a person pulling down her pants. Jane’s boyfriend
said that Jane was crying and provided no further details. He then telephoned Jane’s mother and
advised her of the situation. Jane’s mother spoke to Jane and then told Jane’s boyfriend that
someone forced Jane to have sex. Jane’s boyfriend was aware that Jane let another student into her
dorm room while she studied, but that student left the room.
¶8 Jane’s mother told Officer Arrigo that when Jane’s mother received the telephone call from
Jane’s boyfriend at 9 a.m. on May 4, he said that someone went into Jane’s room and pulled down
her pants. Jane’s mother then telephoned Jane, who said that she wanted to pretend that the incident
did not happen. Jane then explained that at 11 p.m., she was in her room studying for a final exam
when plaintiff, a fellow student and acquaintance, knocked on her door. Jane allowed plaintiff into
the room, but he left at some point. Soon Jane went to sleep and woke up with plaintiff on top of
her. Jane’s mother asked Jane if plaintiff was naked and if he raped her, and Jane replied, “Yes.”
¶9 When Jane talked to Officer Arrigo, Jane identified plaintiff by name and said that he was
her friend. They had met through Jane’s ex-roommate, who had moved out of the room two weeks
before the incident. Jane was never in a relationship with plaintiff and had never been sexually
intimate or affectionate with him. At 11 p.m. on May 3, she was studying in her room for a final
exam and listening to music when plaintiff knocked on her door. She allowed plaintiff into her
room and they spoke briefly about her French class. Plaintiff laid down on Jane’s bed while she
sat on the edge of the bed, studying on her laptop. Plaintiff soon fell asleep on top of the blanket,
facing the wall. At midnight, Jane went to bed underneath the blanket, facing away from plaintiff,
and quickly fell asleep. When she woke up, she was on her stomach and her leggings were pulled
down. Plaintiff was on top of her and, without her consent, had inserted his penis into her vagina.
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She started to move and pushed plaintiff away from her with her legs. She turned to her side and
plaintiff exited the bed and left the room. There was no conversation between her and plaintiff
prior to or after the incident. Neither she nor plaintiff were under the influence of alcohol or
narcotics at the time. Jane then attempted to reach her boyfriend by text and telephone. Officer
Arrigo accompanied Jane to her dorm room where Jane described the locations and positions
during the incident. Jane did not know if plaintiff used a condom or ejaculated but she pointed out
to Officer Arrigo an area of the bed that was wet after plaintiff had exited the bed.
¶ 10 Later that same morning of May 4, defendant DeYoung, who had been an RFPD officer
since 2002 and detective since 2007, was assigned to investigate. After being informed of Jane’s
complaint by Officer Arrigo, DeYoung proceeded to the hospital where Jane was present with her
family members. Jane, who was waiting for an examination and sexual assault kit to be completed
by hospital staff, appeared “confused, hunched over, distraught,” and in “a very defeated posture.”
As a result, DeYoung provided Jane with his contact information so that they could discuss her
case once she was discharged.
¶ 11 At 6:50 p.m. that same evening of May 4, DeYoung interviewed Jane at the RFPD.
DeYoung observed that Jane’s demeanor appeared just as it did at the hospital: “broken, crushed,
distraught, very upset.” After DeYoung read Jane warnings from a photographic array form—
which Jane signed, indicating that she understood the warnings and wished to view the array—
Jane immediately identified the photograph of plaintiff as her assailant, signed her name above his
photo, provided DeYoung with plaintiff’s name, and told DeYoung that she knew plaintiff well,
as they were friends.
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¶ 12 Jane then explained to DeYoung that after allowing plaintiff into her room around 11 p.m.
on May 3, they discussed final exams, and plaintiff at one point fell asleep on Jane’s bed on top of
her blanket while Jane studied. Jane told DeYoung that she continued studying until around
midnight, at which time she laid down at the edge of her bed—under the blankets and facing away
from plaintiff—and quickly fell asleep from exhaustion. Jane continued that, at some point during
the night, she awoke due to discomfort in her vaginal area. She noticed that her pants and
underpants were down by her knees and ankles and realized that plaintiff was penetrating her
vagina from behind with his penis. Jane stated to DeYoung that she then tensed up or wiggled,
after which plaintiff got off her, pulled up his shorts, and left the room without either person
speaking.
¶ 13 Jane told DeYoung that after plaintiff left her room, she called her boyfriend. When he
failed to answer, she texted him several times that he needed to immediately come get her. Jane
showed DeYoung the text messages she had sent to her boyfriend between 1:59 a.m. and 2:32 a.m.
on May 4. Because her boyfriend did not respond, Jane explained that she showered and fell asleep,
until she awoke around 8:30 a.m. due to a call from her boyfriend, at which time she described to
him what happened.
¶ 14 Jane told DeYoung that she had no prior sexual contact with plaintiff and only considered
him a friend. She said she did not give plaintiff consent to perform any sexual act on her, including
penetrating her vagina with his penis. Jane also told DeYoung, who had never met Jane or plaintiff
before this investigation, that she would sign a criminal complaint against plaintiff. During her
interview with DeYoung, Jane was upset and cried, which caused DeYoung to pause the interview
several times so Jane could compose herself. Before leaving the RFPD, Jane submitted buccal and
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pubic hair standards, and she signed a medical request form allowing DeYoung to obtain her
emergency room records. Jane also swore out a complaint against plaintiff for criminal sexual
assault.
¶ 15 The following afternoon of May 5, 2011, DeYoung interviewed plaintiff at the RFPD.
Plaintiff admits that, during this interview, he told DeYoung that he went to Jane’s room, engaged
in sexual contact with Jane, became frustrated because the sexual contact was twice interrupted,
lost his erection, and left Jane’s room. Plaintiff also states on appeal that he told DeYoung that
“Jane was fully awake and never stopped him.”
¶ 16 Later that same evening, around 9 p.m. on May 5, DeYoung asked Cook County Assistant
State’s Attorney (ASA) John Reich, who was assigned to the felony review unit of the State’s
Attorney’s office, to respond to the RFPD. The felony review unit is a 24-hour unit that assists
police departments with evaluating cases and evidence, determines the appropriate criminal
charges, interviews witnesses, victims, and suspects, and documents statements when necessary.
When a potential felony crime is called in for review, the assigned ASA ultimately decides whether
to approve charges. It was ASA Reich’s job to review the evidence and determine if criminal
charges should be filed. It was the responsibility of the police officer or detective to physically file
the charges.
¶ 17 Upon arrival at the RFPD, ASA Reich interviewed Jane Doe, Jane’s mother, and Jane’s
boyfriend. Jane told ASA Reich essentially what she had told DeYoung: that plaintiff, without her
consent, penetrated her vagina with his penis as she slept. Then—after ASA Reich advised plaintiff
that he was a prosecutor and was not plaintiff’s attorney, and read plaintiff his Miranda (Miranda
v. Arizona, 384 U.S. 436 (1966)) warnings—ASA Reich interviewed plaintiff in DeYoung’s
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presence. On a State’s Attorney’s office fact sheet, ASA Reich memorialized that plaintiff
admitted to the same events related by Jane, namely, that he placed his penis into Jane’s vagina
while believing she was asleep and unable to give consent.
¶ 18 At approximately 12:30 a.m. on May 6, 2011, ASA Reich approved one count of criminal
sexual assault against plaintiff. ASA Reich testified that he believed that this investigation was the
first time he had ever spoken with DeYoung, and that neither DeYoung nor anyone else at the
RFPD pressured Reich to approve charges. The independent decision to charge was ASA Reich’s
alone, based upon his interviews of Jane, her mother, her boyfriend, and plaintiff. ASA Reich did
not find that DeYoung misrepresented any information, and Reich did not recall any problems
with DeYoung’s conduct of the investigation.
¶ 19 II. ANALYSIS
¶ 20 Summary judgment should be granted where the pleadings, depositions, admissions, and
affidavits on file show there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Pasquinelli v. Sodexo, Inc., 2021 IL App (1st) 200851, ¶ 31 (citing
735 ILCS 5/2-1005(c) (West 2020)). “If the plaintiff cannot establish any element of his cause of
action, summary judgment is proper.” Milevski v. Ingalls Memorial Hospital, 2018 IL App (1st)
172898, ¶ 28. This court “review[s] appeals from summary judgment rulings de novo.”
Pasquinelli, 2021 IL App (1st) 200851, ¶ 31. To that end, this court “may affirm on any basis
appearing in the record, whether or not the trial court relied on that basis or its reasoning was
correct.” Trigsted v. Chicago Transit Authority, 2013 IL App (1st) 122468, ¶ 50.
¶ 21 Here, the tort of malicious prosecution is the only cause of action at issue. “Suits for
malicious prosecution are not favored in the law,” as “[p]ublic policy favors the exposure of
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crime,” such that “the circumstances in which malicious prosecution actions may be brought have
been rather narrowly circumscribed” and are “subject to more stringent limitations than other tort
actions.” (Citations and internal quotation marks omitted.) Beaman v. Freesmeyer, 2019 IL
122654, ¶¶ 24-25. “To succeed on a claim of malicious prosecution, the plaintiff must establish
‘(1) the commencement or continuation of an original criminal or civil proceeding by the
defendant, (2) the termination of the proceeding in favor of the plaintiff, (3) the absence of probable
cause for such proceeding, (4) malice, and (5) damages.’ ” Holt v. City of Chicago, 2022 IL App
(1st) 220400, ¶ 67. “[T]he absence of any one of the elements bars a plaintiff from pursuing a
claim for malicious prosecution.” Burrell v. Village of Sauk Village, 2017 IL App (1st) 163392,
¶ 20 (affirming summary judgment for defendant officers and village based on presence of
probable cause). Plaintiff’s challenge on appeal involves only one of the five elements—i.e.,
whether DeYoung lacked probable cause.
¶ 22 Plaintiff argues that the circuit court should not have resolved the probable cause inquiry
at summary judgment because a question of fact existed as to whether Jane’s statements to the
officers were sufficiently credible where her reported outcry statements were materially
inconsistent with her later statements. Plaintiff asserts that Jane’s initial statements, as reported by
her boyfriend and her mother to Officer Arrigo, and that Jane’s mother’s statement to university
security personnel, incorrectly implied or indicated that either the assailant was an unknown
intruder, or plaintiff gained access to Jane’s room without her permission, or plaintiff left her room
and then came back uninvited. Jane omitted the fact that plaintiff was asleep on her bed when she
went to bed at midnight and fell asleep. Furthermore, whereas Jane’s boyfriend told Officer Arrigo
that Jane said she woke up with a person pulling down her pants, Detective DeYoung reported that
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Jane said she woke up due to vaginal discomfort because plaintiff’s penis was inside her vagina
and Jane, who was a sound sleeper, did not awake when plaintiff pulled her pants and underpants
down. Plaintiff asserts that these are major inconsistencies and a jury could conclude that these
were deliberate distortions. According to plaintiff, Jane changed crucial facts, which shows
inconsistencies and unreliability and thus fails to confer probable cause, or so a reasonable jury
could conclude.
¶ 23 Defendants respond that plaintiff’s argument is not only wrong on its face, but its
consequences are deeply troubling because the law is clear that officers should refrain from
weighing the credibility of sexual assault complainants’ accounts and instead let criminal trials
sort out such reliability questions. See Holt, 2022 IL App (1st) 220400, ¶ 80. Defendants warn that
the theory of plaintiff’s argument would flip the law on its head and essentially force officers
investigating sexual assault claims to usurp the functions of prosecutors, judges, and juries, and
decide for themselves whether victims should be believed. Defendants add that there are diverging
versions of what plaintiff told DeYoung during plaintiff’s May 5 pre-arrest interview. Thus, to
avoid issues of material fact, defendants do not argue that probable cause existed based upon
anything DeYoung further gleaned from plaintiff’s interview.
¶ 24 This court has broadly defined probable cause as “ ‘a state of facts that would lead a person
of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the
accused committed the offense charged.’ ” Id. ¶ 68 (quoting Sang Ken Kim v. City of Chicago, 368
Ill. App. 3d 648, 654 (2006)). Critically, “probable cause does not require evidence sufficient to
convict.” People v. DeLuna, 334 Ill. App. 3d 1, 13 (2002). Rather, “ ‘[p]robable cause is a
common-sense inquiry requiring only a probability of criminal activity; it exists whenever an
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officer or a court has enough information to warrant a prudent person to believe criminal conduct
has occurred.’ ” Holt, 2022 IL App (1st) 220400, ¶ 68 (quoting Young v. City of Chicago, 987 F.3d
641, 644 (7th Cir. 2021)). As a result—and as here—“[a] person should not be held liable for
malicious prosecution merely because the accused was not convicted.” Holt, 2022 IL App (1st)
220400, ¶ 68.
¶ 25 In addition—and again, as here—“[w]hen the victim of the crime supplies the police with
the information forming probable cause, there is a presumption that the information so provided is
inherently reliable.” Id. Similarly, “ ‘[m]any putative defendants protest their innocence, and it is
not the responsibility of law enforcement officials to test such claims once probable cause has been
established.’ ” Id. ¶ 82 (quoting Spiegel v. Cortese, 196 F.3d 717, 724 (7th Cir. 1999)). Illinois law
provides that “[p]robable cause is an objective standard, and an officer’s subjective belief as to the
existence of probable cause is not determinative.” People v. Buss, 187 Ill. 2d 144, 209 (1999).
¶ 26 After reviewing the record, we conclude that the circuit court did not err in finding no
genuine issue of material fact existed as to whether there was probable cause to arrest plaintiff and
charge him with criminal sexual assault. Initially, Jane identified to her mother and Officer Arrigo
a specific individual by name—a college friend whom she knew prior to the occurrence—as the
perpetrator of a sexual assault against her. DeYoung’s investigation confirmed that plaintiff did
have sexual contact with Jane, and Jane adamantly insisted the sex was nonconsensual. In so doing,
Jane appeared visibly shaken. In addition, across multiple interviews, Jane never wavered from
the material aspects of her account: plaintiff was present in Jane’s room; he initiated sexual
penetration with Jane; the sex was nonconsensual.
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¶ 27 The information Jane provided to DeYoung falls comfortably within the rule that the
identification of a suspect by a putative victim establishes probable cause as a matter of law,
particularly when coupled with plaintiff’s admission that he engaged in sexual contact with Jane
at the same time and place identified by Jane in her account. See In re Edgar C., 2014 IL App (1st)
141703, ¶ 121 (collecting decades of caselaw demonstrating that victim identification of a suspect,
coupled with the suspect’s undisputed presence at or near the crime scene, establishes probable
cause). At a minimum, the evidence against plaintiff was more than sufficient to “ ‘lead a person
of ordinary caution and prudence to believe or to entertain an honest and sound suspicion’ ” that
plaintiff committed the crime. Holt, 2022 IL App (1st) 220400, ¶ 68 (quoting Sang Ken Kim, 368
Ill. App. 3d at 654).
¶ 28 Plaintiff, however, challenges the credibility of Jane and her statements. Specifically,
plaintiff argues that an issue of fact precluded summary judgment on probable cause grounds
because Jane’s “account of her alleged sexual assault was *** riddled with inconsistencies,” and
for the circuit court to credit said account, it necessarily “engaged in impermissible credibility
determination and evidence weighing.”
¶ 29 Initially, plaintiff’s argument—that Jane’s statements were too inconsistent for any
reasonable officer to find them credible—violates unambiguous law requiring officers to refrain
from engaging in precisely these sorts of credibility judgments in assessing probable cause. As this
court held in the context of sexual assault, “[t]he credibility of a putative victim or witness is a
question, not for police officers in the discharge of their considerable duties, but for the jury in a
criminal trial.” (Citation and internal quotation marks omitted.) Holt, 2022 IL App (1st) 220400,
¶ 80. “[A]s long as [the victim’s report] is not so incredible as to make the officer’s belief that
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plaintiff committed a crime unreasonable,” then the officer is “entitled to act on the basis of
observable events and let courts resolve conflicts about mental states.” (Citation and internal
quotation marks omitted.) Id.
¶ 30 A suspect’s contention that a reporting victim should not be believed when she asserts that
the sexual contact was nonconsensual raises the matter of consent, which is a legal “affirmative
defense” frequently raised by criminal defendants in sexual assault cases. People v. Lamonica,
2021 IL App (2d) 200136, ¶ 37. The validity of affirmative defenses is a matter for criminal court
judges and juries, rather than police officers, who have “no duty to investigate the validity of any
defense.” Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (citing
Baker v. McCollan, 443 U.S. 137, 145-46 (1979)).
¶ 31 To hold in this case that DeYoung lacked probable cause based on credibility grounds
would require the court to find that DeYoung should have disbelieved Jane when she told him she
was sexually assaulted by plaintiff. As described above, that is functionally the opposite of what
probable cause is meant to encapsulate. “Police are entitled to act on information that may be
inaccurate and let the courts determine whether to credit a suspect’s claim of innocence.”
(Emphasis added.) Ross v. Mauro Chevrolet, 369 Ill. App. 3d 794, 800 (2006). Where the involved
parties each confirm that they had sexual contact, the suspect says “the sex was consensual,” the
complainant says “she had been raped,” and “no evidence indicat[es the complainant’s] account
was so incredible that believing her was unreasonable,” judgment as a matter of law on probable
cause grounds is appropriate. Holt, 2022 IL App (1st) 220400, ¶ 80.
¶ 32 Here, the inconsistencies identified by plaintiff do not amount to objective incredibility.
Plaintiff asserts that Jane “changed crucial facts depending on who was present” when she related
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her story. The record does not support plaintiff’s assertion. Although Jane’s initial outcry
statements, as reported to the police by her boyfriend and her mother, did not exactly match all the
details of her later accounts to Officer Arrigo and Detective DeYoung, the material aspects of those
accounts—that plaintiff was present in Jane’s room; he initiated sexual contact with Jane; the
contact was nonconsensual—were consistent throughout.
¶ 33 It is not surprising that Jane’s initial statements to her boyfriend and mother—while Jane
initially processed what happened to her at the hands of her purported friend—were not exact
matches to her later statements to Officer Arrigo and Detective DeYoung. According to the record,
Jane wanted to pretend that the assault did not happen, indicating that she likely felt ashamed for
trusting someone who was not worthy of her trust. Thus, any absence in her accounts to her
boyfriend and mother of the fact that she went to bed under the blanket after plaintiff had fallen
asleep on top of her bed does not render Jane’s reports to the police so incredible as to make
DeYoung’s belief that plaintiff committed criminal sexual assault unreasonable. See Holt, 2022
IL App (1st) 220400, ¶ 80. The law expressly provides that probable cause is not undermined by
victim statements that suffer from immaterial inconsistencies. Sang Ken Kim, 368 Ill. App. 3d at
657 (probable cause is not defeated by an “inconsistency [that] was [not] serious enough to deprive
defendants of an honest and sound suspicion that the accused committed the offense charged”
(citation and internal quotation marks omitted)).
¶ 34 Plaintiff also argues that DeYoung “admitted” that Jane’s claims were unreliable when, at
the grand jury three weeks after plaintiff was charged, DeYoung responded to a grand juror’s
inquiry that “I know when you first hear the story, you’re like come on.” Plaintiff’s argument lacks
merit. DeYoung’s complete answer at the grand jury clearly reveals that he was actually explaining
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why he did not discount Jane’s allegation. After making that comment, DeYoung immediately told
the grand jury why that initial reaction would be wrong: specifically, Jane explained that since she
was a “deep sleeper,” she did not realize that plaintiff was lowering her pants and underwear prior
to the alleged penetration. Moreover, even if it were true that DeYoung doubted Jane’s story—he
did not—“[p]robable cause is an objective standard, and an officer’s subjective belief as to the
existence of probable cause is not determinative.” Buss, 187 Ill. 2d at 209; see Booker v. Ward,
905 F. Supp. 483, 487 (N.D. Ill. 1995) (“whether the police officer actually believed he or she had
probable cause or had other motives (good or bad) for arresting the person are not considerations”).
¶ 35 Plaintiff’s reference to the first grand jury returning a “No Bill” before a second grand jury
returned the indictment is of no consequence to the probable cause analysis. As a matter of
unambiguous Illinois law governing probable cause in malicious prosecution cases, “the return of
a ‘no true bill’ by the grand jury does not raise an inference that [a person of ordinary care and
prudence] did not honestly believe that the actions by [the arrestee] constituted” a crime. Turner
v. City of Chicago, 91 Ill. App. 3d 931, 936 (1980). Nor is the fact that plaintiff was later found
not guilty at trial relevant, as probable cause does not require evidence sufficient to support a
conviction. DeLuna, 334 Ill. App. 3d at 13.
¶ 36 To support his credibility argument, plaintiff cites Fabiano v. City of Palos Hills, 336 Ill.
App. 3d 635 (2002), where the court held that a genuine issue of material fact existed as to whether
the city and police chief acted maliciously in prosecuting a day care provider for allegedly sexually
abusing children in her daycare. Specifically, plaintiff cites Fabiano for its proposition that the
question of whether a statement is sufficiently reliable to support probable cause in a malicious
prosecution case is for the jury at trial. Id. at 642. However, plaintiff’s reliance on Fabiano is
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misplaced because the cited proposition is irrelevant in the present context. In Fabiano, the court
was referring to “hearsay statements [that] are urged to establish probable cause,” which “must be
shown to be reliable.” Id. Fabiano did not address eyewitness statements supporting probable
cause, let alone eyewitness victim statements in the specific context of sexual assault cases—which
are instead governed by Holt and Sang Ken Kim. Plaintiff also cites Fabiano to support his “major
inconsistencies” contention. See Fabiano, 336 Ill. App. 3d at 642. Again, this section of Fabiano
is exclusively concerned with hearsay statements. Fabiano has no bearing on the credibility of
Jane’s non-hearsay statements or the credibility of Jane herself.
¶ 37 Plaintiff also cites Fuller v. Benny’s Corner Bar & Grill, Inc., 2022 IL App (3d) 180670,
a dramshop action against four liquor establishments arising from a fatal motor vehicle crash, for
the proposition that the circuit court here made an inappropriate credibility determination. But the
Fuller promulgation of that principle arose out of a sharp dispute of fact between the parties as to
whether the driver who caused the crash was intoxicated at the time of the crash. Id. ¶ 104. There
were competing eyewitness accounts supporting both versions of events—that the driver did not
appear to be drunk; or that he did. Id. ¶¶ 104-05. The court simply found that it was not appropriate
for the trial court to determine at summary judgment which of those accounts was more likely than
the other, in part because it is the jury’s job, and not the court’s, to weigh those witnesses’
credibility. Id. ¶ 105.
¶ 38 This noncontroversial summary judgment fundamental principle—that a court is not to
engage in credibility determinations at summary judgment—does not adversely affect the vastly
different criminal law fundamental principle that probable cause lies as a matter of law where a
victim makes multiple statements to officers and the material aspects of her statements, especially
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her eyewitness identification of a perpetrator of sexual assault, remain consistent. Sang Ken Kim,
368 Ill. App. 3d at 657, 660 (affirming summary judgment “for defendants and against the plaintiff
on the claims of malicious prosecution because there was no genuine issue of material fact as to
whether probable cause existed at the time of arrest and the defendants were entitled to judgment
as a matter of law”). The latter principle does not require a court to make a “credibility”
determination at all, which is all that was discussed in Fuller. Rather, the latter principle merely
requires the court to simply look at whether the victim’s statements were consistent enough in their
material components to provide “ ‘an officer [with] enough information to warrant a prudent
person to believe criminal conduct has occurred.’ ” Holt, 2022 IL App (1st) 220400, ¶ 68 (quoting
Young, 987 F.3d at 644).
¶ 39 That is all that DeYoung did at the time of the incident, and that is all the circuit court did
here. Contrary to plaintiff’s arguments, DeYoung and the lower court refrained from making
credibility judgments. They simply looked at the information available to DeYoung and
determined that, pursuant to the clear law governing victim identifications of perpetrators of sexual
assault, probable cause was present.
¶ 40 Accordingly, we affirm the circuit court’s decision granting summary judgment in favor of
defendants because our review of the record establishes that probable cause existed to arrest and
charge plaintiff with criminal sexual assault. Furthermore, summary judgment for DeYoung on
the malicious prosecution claim necessarily quashes plaintiff’s respondeat superior and
indemnification claims against the Village, which were dependent on the malicious prosecution
claim against DeYoung. See Beaman v. Freesmeyer, 2019 IL App (4th), 160527, ¶ 128, rev’d on
other grounds, 2021 IL 125617. Based on our ruling, we do not address defendants’ alternative
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argument that summary judgment is also appropriate based on plaintiff’s failure to establish the
element of his malicious prosecution claim regarding the commencement or continuance of an
original criminal proceeding by DeYoung.
¶ 41 III. CONCLUSION
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 43 Affirmed.
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