People v. Burge

2023 IL App (1st) 221452-U

• Court: Appellate Court of Illinois
• Decided: October 20, 2023
• Docket: 1-22-1452
• Status: Unpublished

Opinion

2023 IL App (1st) 221452-U No. 1-22-1452 Order filed October 20, 2023 Fifth 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 __________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 20 CR 60025 ) RONALD BURGE, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) Judge presiding.

JUSTICE NAVARRO delivered the judgment of the court. Justices Mikva and Lyle concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s convictions for aggravated battery and official misconduct where there was sufficient evidence to convict him of the offenses.

¶2 Following a jury trial, defendant Ronald Burge was found guilty of two counts of

aggravated battery and one count of official misconduct. The trial court subsequently sentenced

him to two years’ probation. On appeal, defendant contends that the State failed to present

sufficient evidence to convict him of any of the offenses. For the reasons that follow, we affirm. No. 1-22-1452

¶3 I. BACKGROUND

¶4 A grand jury indicted defendant on several counts of aggravated battery, official

misconduct and disorderly conduct. The State proceeded to trial against him on four counts of

aggravated battery and one count of official misconduct. Count 2 alleged that defendant committed

aggravated battery by striking Carla Bourgouis’ head against a wall while on public property.

Count 4 alleged that defendant committed aggravated battery by striking Bourgouis’ head against

a wall while knowing she was 60 years of age or older. Count 5 alleged that defendant committed

official misconduct by committing a battery while in his capacity as a police officer. Count 8

alleged that defendant committed aggravated battery by dragging Bourgouis with his arm across

her neck and chest with her feet at times dangling off the ground while on a public way or public

property. Count 9 alleged that defendant committed aggravated battery by dragging Bourgouis

with his arm across her neck and chest with her feet at times dangling off the ground knowing she

was 60 years of age or older.

¶5 The case proceeded to a jury trial, where Bourgouis was the State’s sole witness. She

testified that, on October 5, 2019, she was 5-feet, 1-inch tall, weighed approximately 112 pounds

and was 65 years old. That morning, Bourgouis saw her brother-in-law outside her house. When

he refused to leave, Bourgouis called the Dixmoor Police Department. Sergeant Villegas and

Officer Thomas responded. Instead of removing Bourgouis’ brother-in-law, Sergeant Villegas and

Officer Thomas got into an argument with one of her grandsons, Kajuan. The argument escalated,

and as Bourgouis grabbed Kajuan while Sergeant Villegas and Officer Thomas were trying to

arrest him, they all fell into a ditch. Ultimately, the officers arrested Kajuan.

¶6 Bourgouis and her daughter, Mia, who was Kajuan’s mother, went to the Dixmoor police

station to find out why Kajuan had been arrested, but, according to Bourgouis, they were not able

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to speak to anyone. Video evidence admitted and played at trial, however, showed Bourgouis and

Mia discussing the incident with Officer Thomas and Sergeant Villegas. Bourgouis left the police

station, and when she returned, Mia was there along with Javaris Sr., Kajuan’s father, and three

children, two of which were Bourgouis’ grandchildren and one of which was Javaris Sr.’s child.

¶7 While in the lobby, defendant appeared and discussed the incident with Bourgouis.

According to her, defendant was “upset” that he had to come to the police station on his day off.

While they were talking, Javaris Sr. was recording the encounter with his cell phone, which

defendant asserted was illegal. Defendant gave Javaris Sr. an ultimatum to either give him the

phone or be arrested. Javaris Sr. chose the latter. Still, defendant attempted to retrieve the phone,

but the family passed it amongst each other with Javaris Sr. eventually getting it back. Video

evidence was consistent with Bourgouis’ testimony. As defendant began to lead Javaris Sr. out of

the lobby and into the non-public area of the police station, Bourgouis started recording with her

phone. Bourgouis followed them toward the door separating the lobby and non-public area, which

indicated the non-public area was restricted. She propped the door open, though did not cross the

door’s threshold, and continued recording. Defendant immediately yelled “whoa, whoa, whoa,”

which prompted Bourgouis to run out of the police station. She crossed West 145th Street, which

was adjacent to the station, and ran into a parking lot, all in an effort to keep her phone. At trial,

Bourgouis denied that she heard defendant telling her to stop or that she was under arrest. Video

evidence, however, showed that defendant yelled to her that she was under arrest as she ran out of

the station.

¶8 Video evidence further showed defendant chase after Bourgouis with Sergeant Villegas,

Mia and the three children all running outside. After Bourgouis ran into the parking lot, she paused

behind various vehicles. While behind those vehicles, and out of view of the security camera,

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defendant caught up to her. Shortly after, Mia, the three children and Sergeant Villegas all

disappeared behind the vehicles in the parking lot. According to Bourgouis, once defendant caught

her, he took out his firearm and grabbed her around the chest and neck. Video evidence showed

defendant with his left arm around Bourgouis and a firearm in his right hand and pointed toward

the ground a couple of feet into West 145th Street. As this occurred, Mia and the three children

can be seen yelling at defendant with Sergeant Villegas right by them while a black SUV drove

slowly toward them. As the vehicle drove near them, defendant dragged Bourgouis closer toward

the middle of West 145th Street. The vehicle slowed down and briefly stopped several feet in front

of defendant and Bourgouis with Sergeant Villegas, Mia and the three children all congregated

around it. Although Bourgouis testified that her family was yelling at defendant, she denied that

any of them threatened him. Once the vehicle left the scene, Officer Thomas came outside and

walked toward defendant. Bourgouis testified that neither she nor anyone else with her was armed

with a weapon.

¶9 According to Bourgouis, defendant then lifted her off of her feet and dragged her to the

backdoor of the police station. Video evidence showed defendant drag Bourgouis several feet to

the backdoor of the police station with his left arm around her neck and with a firearm in his right

hand while, at times, her feet dangled off of the ground. While defendant dragged Bourgouis, the

rest of her family members remained by the parking lot. At the backdoor of the police station,

defendant pinned Bourgouis against the door with his body. According to Bourgouis, due to

defendant’s conduct, she was “losing [her] breath” and trying to prevent herself from being

“choked to death.” Video evidence showed Mia approach the backdoor of the police station yelling

at defendant and forcibly walking within inches of him while being restrained by Sergeant Villegas

with Officer Thomas at his side. A dispatcher opened the backdoor, and defendant dragged

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Bourgouis inside with his arm still around her neck. Video evidence showed defendant give his

firearm to the dispatcher. According to Bourgouis, after taking a few steps down a hallway,

defendant pinned her against a wall and “bashed” her face against the wall multiple times.

Defendant then swung Bourgouis around and pushed her against a counter on the opposite side of

the hallway. Video evidence was generally consistent with Bourgouis’ testimony. At trial,

Bourgouis denied being aggressive toward defendant, or ever hitting or scratching him

¶ 10 In the defense’s case, defendant testified that he was 33 years old, 6-feet tall and weighed

between 235-240 pounds. On October 5, 2019, defendant was a commander with the Dixmoor

Police Department but off duty. Sergeant Villegas called him into work because he and Officer

Thomas had been attacked while responding to a call. After defendant arrived, he came into the

lobby where Bourgouis, Mia, Javaris Sr., and the three children were located. Defendant spoke

with Bourgouis, who claimed that Sergeant Villegas had been aggressive with her. While there,

defendant received a text message alerting him that Javaris Sr. was livestreaming the interaction

at the police station on Facebook. According to the text message, in the livestream, Javaris Sr. told

people that the police had attacked Kajuan and viewers were asking for the address of the police

station as well as commenting “[w]e’re going to come up there” and “f*** that fat [officer].”

Defendant told Javaris Sr. to stop recording and that it was illegal, but he refused. At trial, although

defendant conceded it was not illegal to record police officers performing their duties, he claimed

that it was illegal to record in secure areas of the police station.

¶ 11 Defendant told Javaris that he would have to take him into custody and attempted to take

possession of the phone, but the family members passed the phone around. Eventually, Javaris Sr.

re-took possession of the phone, and defendant walked him out of the lobby through a door and

into the non-public area of the police station. According to defendant, that door had a sign stating:

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“Do not open. Authorized personnel only.” As defendant brought Javaris Sr. back into the non-

public area of the police station, defendant noticed Bourgouis recording him at the threshold of the

door. Defendant told Bourgouis to give him the phone and that she was under arrest, but Bourgouis

ran out of the police station.

¶ 12 Defendant chased after her because she disobeyed a lawful arrest order, and when he

approached her behind vehicles in the parking lot, he tried to grab her shoulder. As he reached for

Bourgouis, she punched him and dug her nails into his groin area. Defendant was able to get ahold

of Bourgouis and walked into West 145th Street with her. After walking into the street, he drew

his weapon because her family members had begun to make gang signs, yell gang slurs and flagged

down an SUV. According to defendant, the family members also tried to run toward him with Mia

yelling at him to get off Bourgouis. At trial, defendant explained: “I not only feared for my life

and safety, but also hers and the other officers outside after I drew my sidearm and put it at my

side.” Although he drew his firearm, he did not lift it or point it anyone. According to defendant,

he told Bourgouis to walk, but she resisted by trying to scratch him and grab his groin area.

Defendant had to “restrain” her with his hands because he did not have handcuffs, which he did

by the shoulder, not the neck. As they began to walk back to the police station, Bourgouis “lifted

her legs bending her knees trying to throw [him] off balance.” Once inside the police station,

defendant gave his firearm to a dispatcher because Bourgouis broke his holster. In the hallway,

defendant applied “pressure point technique[s],” which he had learned at the Illinois State Police

academy, on her shoulder and below her earlobe to help subdue her. While performing the one

near her earlobe, Bourgouis’ body jerked and her head bumped the wall. Bourgouis continued to

resist in the hallway before defendant was able to get her into a holding cell with Javaris Sr.

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¶ 13 Following closing arguments, the jury found defendant guilty of the two counts of

aggravated battery based on being on a public way or public property, and one count of official

misconduct, but not guilty of the two counts of aggravated battery premised upon knowing that

Bourgouis was 60 years of age or older. Following defendant’s unsuccessful motion for new trial,

the trial court sentenced him to two years’ probation.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Defendant challenges the sufficiency of the evidence to convict him of both aggravated

battery offenses and official misconduct. When a defendant challenges the sufficiency of the

evidence against him, we must determine whether, when the evidence is viewed in the light most

favorable to the State, a rational trier of fact could have found the essential elements of the offense

proven beyond a reasonable doubt. People v. Jackson, 2020 IL 124112, ¶ 64. Under this standard

of review, the jury has the responsibility to weigh the evidence, resolve conflicts in the evidence

and to draw rational inferences from the evidence. Id. The reviewing court does not retry the

defendant, and thus, we do not substitute in our judgment for that of the trier of fact on issues

affecting the credibility of witnesses or the weight of the evidence. Id. We will not reverse a

defendant’s conviction “unless the evidence is so improbable or unsatisfactory that it creates a

reasonable doubt of the defendant’s guilt.” Id.

¶ 17 A. Count 2 – Aggravated Battery

¶ 18 For Count 2, where the jury found that defendant committed aggravated battery by striking

Bourgouis’ head against a wall while on public property, the State had to prove that defendant

committed a battery and that he was on public property. 720 ILCS 5/12-3.05(c) (West 2018).

Defendant correctly does not contest that a police station, as property owned by the government,

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constitutes public property. See People v. Castillo, 2022 IL 127894, ¶ 28. In turn, his guilt for

Count 2 turns on whether he committed a battery. “A person commits battery if he *** knowingly

without legal justification by any means *** makes physical contact of an insulting or provoking

nature with an individual.” 720 ILCS 5/12-3(a)(2) (West 2018). Defendant argues that the State

failed to present sufficient evidence that he knew his conduct would result in an insulting or

provoking contact to her. Defendant posits that his act of applying a pressure point technique on

Bourgouis was not the type of conduct that a person would be consciously aware was practically

certain to result in an insulting or provoking contact.

¶ 19 “A person knows, or acts knowingly or with knowledge of:

(a) The nature or attendant circumstances of his or her conduct, described by the

statute defining the offense, when he or she is consciously aware that his or her

conduct is of that nature or that those circumstances exist. Knowledge of a material

fact includes awareness of the substantial probability that the fact exists.

(b) The result of his or her conduct, described by the statute defining the offense,

when he or she is consciously aware that that result is practically certain to be

caused by his conduct.” 720 ILCS 5/4-5 (West 2018).

“Knowledge may be, and ordinarily is, proven circumstantially.” People v. Ortiz, 196 Ill. 2d 236,

260 (2001). Thus, the defendant’s knowledge can be inferred from the surrounding circumstances

and facts. People v. Monteleone, 2018 IL App (2d) 170150, ¶ 26. Whether a defendant acted

knowingly is a question of fact for the jury to determine. Id. Additionally, whether physical contact

is of an insulting or provoking nature “is an objective inquiry.” People v. Davidson, 2023 IL

127538, ¶ 16. In other words, “it is the nature of the contact, not the actual impact on the victim,

that must be established.” Id. To this end, “the trier of fact is asked to determine whether a

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reasonable person under the circumstances would find the physical contact insulting or provoking

in nature.” Id.

¶ 20 In the instant case, based on the video evidence and Bourgouis’ testimony, there was

evidence that defendant was consciously aware that his conduct would result in Bourgouis’ head

striking the wall multiple times. Defendant claims that his physical contact with Bourgouis was

not done knowingly where he applied a pressure point technique that caused her head to

involuntarily jerk and hit the wall, seeming to imply that her head struck the wall only once. “By

electing to testify, defendant became bound to provide a reasonable account of events or be judged

by their improbabilities and inconsistencies.” People v. Peterson, 171 Ill. App. 3d 730, 735 (1988).

The jury rationally rejected defendant’s explanation. Moreover, given the significant size and age

disparity between Bourgouis and defendant, the jury could rationally disbelieve that defendant

needed to use a pressure point technique against her. See People v. Sullivan, 366 Ill. App. 3d 770,

782 (2006) (the jury may “accept or reject as much or as little of a witness’s testimony as it

pleases”). Given that the jury found defendant acted knowingly and the State’s evidence supported

that finding, we have no basis to overrule the jury’s determination on this question of fact. See

Monteleone, 2018 IL App (2d) 170150, ¶ 26. And, based on the circumstances, when defendant

pushed Bourgouis’ head into the wall multiple times in the hallway of a police station, a reasonable

person under the circumstances would find that physical contact insulting or provoking in nature.

See Davidson, 2023 IL 127538, ¶ 16.

¶ 21 Nevertheless, defendant likens his actions to those of the defendant in People v. Martino,

2012 IL App (2d) 101244. In that case, the defendant was charged with aggravated domestic

battery after he broke his wife’s arm when he fell on top of her after being tased. Id. ¶ 1. After the

trial court found the defendant guilty, he appealed, where the issue was whether he acted

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intentionally or knowingly. Id. ¶¶ 13-14. This court found that the defendant did not act

intentionally or knowingly because the police’s act of tasing him “rendered [him] incapable of

controlling his muscles.” Id. ¶ 15. Because of this, the defendant’s “act of falling on [his wife] and

breaking her arm was an involuntary act for which he cannot be held accountable.” Id. Therefore,

this court found insufficient evidence to prove the defendant guilty of aggravated domestic battery.

Id.

¶ 22 In this case, unlike in Martino, defendant was fully capable of controlling his actions and

movements when making physical contact with Bourgouis. Martino is therefore inapposite.

Because defendant knowingly made physical contact of an insulting or provoking nature with

Bourgouis when he struck her head against a wall while on public property, the State presented

sufficient evidence to prove that he committed aggravated battery.

¶ 23 B. Count 8 – Aggravated Battery

¶ 24 For Count 8, where the jury found that defendant committed aggravated battery by

dragging Bourgouis with his arm across her neck and chest while on a public way or property, the

State had to prove that defendant committed a battery and that he was on a public way or public

property. 720 ILCS 5/12-3.05(c) (West 2018). As with Count 2, defendant correctly does not

contest that the police station constitutes public property (see Castillo, 2022 IL 127894, ¶ 28), or

that West 145th Street, where the evidence showed defendant dragging Bourgouis, was a public

way. See People v. Aguilar, 286 Ill. App. 3d 493, 498 (1997). In turn, his guilt for Count 8 turns

on whether he committed a battery. As noted, “[a] person commits battery if he *** knowingly

without legal justification by any means *** makes physical contact of an insulting or provoking

nature with an individual.” 720 ILCS 5/12-3(a)(2) (West 2018). And here, defendant argues that

the State failed to disprove beyond a reasonable doubt that he acted in self-defense. He posits that

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he had legal justification to make physical contact with Bourgouis in the manner he did where he

was effectuating an arrest, which allowed him to use any force reasonably necessary, and the

situation was fluid and chaotic with Bourgouis battering him along with her family threatening

him, including them appearing to flag down an SUV.

¶ 25 “A person is justified in the use of force against another when and to the extent that he

reasonably believes that such conduct is necessary to defend himself or another against such

other’s imminent use of unlawful force.” 720 ILCS 5/7-1(a) (West 2018). The elements of self-

defense are: “(1) unlawful force threatened against a person, (2) the person threatened was not the

aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) the person

threatened actually and subjectively believed a danger existed that required the use of the force

applied, and (6) the beliefs of the person threatened were objectively reasonable.” People v. Gray,

2017 IL 120958, ¶ 50. Self-defense is an affirmative defense, and when the defendant raises it, the

State bears the burden of disproving one of the elements of self-defense beyond a reasonable doubt

along with proving the other elements of the charged offense beyond a reasonable doubt. Id.

Whether the defendant was justified in using self-defense is a question of fact for the jury to

resolve. People v. Felella, 131 Ill. 2d 525, 533 (1989).

¶ 26 Therein lies a potential problem with defendant’s self-defense argument on appeal, as he

did not pursue a pure self-defense affirmative defense at trial. It is true that, in defendant’s various

pretrial answers to discovery, he stated that he would assert self-defense at trial. But, during the

jury instructions conference, the trial court asked defense counsel if he was requesting a self-

defense instruction and counsel responded that he was not. Instead, defense counsel requested, and

the court allowed, Illinois Pattern Jury Instructions, Criminal, No. 24-25.12, which provides that a

peace officer need not retreat or desist in making a lawful arrest and that he can use reasonable

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force to effectuate an arrest. That instruction is modeled after section 7-5(a) of the Criminal Code

of 2012 (Code) (720 ILCS 5/7-5(a) (West 2018)). See Illinois Pattern Jury Instructions, Criminal,

No. 24-25.12, Committee Note. Meanwhile, Illinois Pattern Jury Instructions, Criminal, No. 24-

25.06, which details the defense of self-defense, is modeled after section 7-1 of the Code (720

ILCS 5/7-1 (West 2018)). See Illinois Pattern Jury Instructions, Criminal, No. 24-25.06,

Committee Note. Section 7-1 of the Code provides a distinct affirmative defense from section 7-

5(a) of the Code. See 720 ILCS 5/7-1; 7-5(a) (West 2018).

¶ 27 In a sufficiency of the evidence argument, “[a] defendant forfeits an affirmative defense by

failing to make it in the trial court.” People v. Shepherd, 2020 IL App (1st) 172706, ¶¶ 16-17; see

also People v. Bardsley, 2017 IL App (2d) 150209, ¶¶ 16-17 (same); but see People v. Tarasiuk,

2023 IL App (1st) 211453-U, ¶ 29 (not finding forfeiture in a sufficiency of the evidence

contention); People v. Wiggen, 2021 IL App (3d) 180486, ¶¶ 16-18 (same). Defendant did not

request a self-defense instruction and, in fact, his defense counsel affirmatively denied wanting

one. As such, it is arguable that defendant forfeited his self-defense contention on appeal. See

Shepherd, 2020 IL App (1st) 172706, ¶¶ 16-17; Bardsley, 2017 IL App (2d) 150209, ¶¶ 16-17.

¶ 28 Additionally, “[b]ecause self-defense presupposes the intentional use of force in defense

of one’s person, no instruction of self-defense is applicable to an act that a defendant denies

committing.” People v. Cacini, 2015 IL App (1st) 130135, ¶ 44; see also People v. Johnson, 2023

IL App (4th) 210662, ¶ 87 (observing that the “[d]efendant’s argument on appeal that he was

entitled to a self-defense instruction after denying the charged conduct is in direct contradiction to

an entire body of appellate caselaw”). In Count 8, the charged conduct alleged that defendant

dragged Bourgouis with his arm across her neck and chest with her feet at times dangling off the

ground. But, at trial, defendant denied that he dragged Bourgouis by her neck or chest, but rather

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asserted he had restrained her by the shoulder. Furthermore, he explained how Bourgouis’ feet

lifted off the ground by asserting she did it herself trying to throw him off balance.

¶ 29 These issues aside and assuming arguendo that this contention is properly before us, the

State sufficiently disproved that defendant acted in self-defense. First, as discussed, Bourgouis was

significantly smaller than defendant, and there was no video evidence supporting his claims that

she threatened him or physically assaulted him before his aggressive conduct toward her began.

See Gray, 2017 IL 120958, ¶ 52 (size disparity between the victim and the defendant relevant in

an alleged self-defense case). Moreover, Bourgouis herself denied threatening or physically

assaulting defendant. Second, although defendant claimed that Mia and the three children made

the scene chaotic by threatening him, the video evidence does not conclusively support his claim.

Furthermore, three of the four people outside were children, and defendant was not alone outside,

as Sergeant Villegas and Officer Thomas were there by the time defendant started dragging

Bourgouis toward the police station. In fact, when defendant dragged Bourgouis to the backdoor

of the police station, none of Bourgouis’ family members were near them, as they remained in the

parking lot with Sergeant Villegas who had support from Officer Thomas. Additionally, according

to Bourgouis, none of her family members were armed.

¶ 30 Lastly, although defendant makes much of the SUV that slowly drove toward him and

Bourgouis, there was no evidence that this vehicle was in any way connected to Bourgouis or her

family. More likely, the driver of that vehicle drove slowly toward them because they were in the

middle of the street with defendant having his arm around Bourgouis’ neck with his firearm out.

After considering this evidence and the remaining evidence presented by the State in the light most

favorable to it, a rational trier of fact could have found beyond a reasonable doubt that defendant’s

belief in the need to defend himself was not objectively reasonable. Because the State presented

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sufficient evidence to disprove one of the elements of self-defense beyond a reasonable doubt and

defendant does not contest the sufficiency of the evidence as to the other elements of Count 8, the

State presented sufficient evidence to prove that defendant committed aggravated battery by

dragging Bourgouis with his arm across her neck and chest with her feet at times dangling off the

ground while on a public way or property. See Gray, 2017 IL 120958, ¶ 50.

¶ 31 C. Count 5 – Official Misconduct

¶ 32 Defendant lastly concedes that, if the State sufficiently proved either aggravated battery

conviction, there would be sufficient evidence to prove he committed official misconduct. We

agree.

¶ 33 To prove Count 5, the State had to show that defendant, as a public employee in his official

capacity, “[k]nowingly perform[ed] an act which he knows he is forbidden by law to perform”

(720 ILCS 5/33-3(a)(2) (West 2018)), i.e., a battery in this case. There is no question that defendant

was a public employee in his official capacity when the incident happened. See 720 ILCS 5/2-17

(West 2018); People v. Williams, 393 Ill. App. 3d 77, 82 (2009), aff’d, 239 Ill. 2d 119 (2010). And

because the State sufficiently proved that defendant committed two counts of aggravated battery,

which necessarily means he committed battery, the State proved beyond a reasonable doubt that

he committed official misconduct. See 720 ILCS 5/33-3(a)(2) (West 2018).

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 36 Affirmed.

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