2025 IL App (1st) 232039-U No. 1-23-2039 Third Division September 17, 2025
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 Cook County. Plaintiff-Appellee, ) ) No. 22 CR 07625 v. ) ) The Honorable KENDELL CARR, ) Stanley J. Sacks, ) Judge Presiding. Defendant-Appellant. ) ) ______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court. Presiding Justice Martin and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for aggravated battery to a peace officer is affirmed, where a rational trier of fact could have found beyond a reasonable doubt that defendant committed a battery while knowing that the victim was a peace officer engaged in the performance of his official duties.
¶2 After a jury trial, defendant Kendell Carr was convicted of aggravated battery to a peace
officer (720 ILCS 5/12-3.05(d)(4) (West 2022)), and was sentenced to 30 months’ probation,
in connection with an incident in which he spat on a police officer during the course of a traffic
stop. On appeal, defendant contends that the State failed to prove him guilty of the offense No. 1-23-2039
where it failed to establish beyond a reasonable doubt (1) that the officers were performing an
official duty in good faith and (2) that defendant was aware they were doing so. Accordingly,
defendant claims that his conviction should be reduced to simple battery. For the reasons set
forth below, we affirm.
¶3 BACKGROUND
¶4 On May 9, 2022, police officers on routine patrol observed defendant’s vehicle reversing
down a one-way street and briefly double-parking in front of a house before driving down an
alley. The officers followed the vehicle down the alley, where it parked on a concrete pad
behind the same house. The officers performed a traffic stop with respect to the traffic
violations, which escalated to the point that additional officers were called to the scene,
resulting in defendant being bodily removed from his vehicle and carried to the police vehicle.
While defendant was in the police vehicle, he spat on one of the officers. 1 Defendant was
charged with one felony count of aggravated battery to a peace officer, and the matter
proceeded to a jury trial. At trial, the State presented the testimony of two of the police officers
involved in the arrest, while the defense presented the testimony of defendant and his mother.
¶5 Officer Hureta
¶6 Chicago police officer Emmanuel Hureta testified that, on May 9, 2022, at approximately
2:45 p.m., he was on routine patrol with his partner, Officer Moreno, 2 in an unmarked police
vehicle. Near 101st Street and South Normal Avenue, he observed a black Mazda sedan
reversing down Normal Avenue, which was a one-way street; the officers’ vehicle was “a few
1 While defendant claimed at trial that he did not knowingly spit on the officer, he concedes on appeal that the State presented sufficient evidence to prove the issue beyond a reasonable doubt. Accordingly, the question of whether defendant spat on the officer is no longer in dispute. 2 Moreno’s first name is not contained in the record on appeal. 2 No. 1-23-2039
feet away,” behind the Mazda. The Mazda then came to a complete stop, double-parking on
the street. Hureta “attempted to curb the vehicle” to initiate a traffic stop, but as the police
vehicle approached, the Mazda drove away. Hureta followed as the Mazda turned down a
nearby alley and parked “in the driveway” behind a residence. Hureta and Moreno then exited
the police vehicle and approached the Mazda, with Hureta approaching the driver’s side and
Moreno approaching the passenger’s side. Hureta testified that the reason for the traffic stop
was due to “[u]nsafely backing and double parking on the street.”
¶7 As Hureta approached the Mazda, he observed the driver open the door and look outside
the vehicle at the police; the door remained open for some time. When Hureta reached the
driver’s side door, he observed two occupants inside the Mazda: the driver—who he identified
in court as defendant—and a “really young” child in the backseat, who was identified as
defendant’s daughter. Hureta announced that he was a police officer and the reason for the
traffic stop, and defendant “became irate and angry.” Hureta asked defendant for his driver’s
license and insurance, which he provided, and Hureta returned to the police vehicle to conduct
a name check on the vehicle’s computer system; the name check ultimately did not reveal any
problems with defendant’s documentation. While Hureta conducted the name check, Moreno
remained near the Mazda, next to the rear passenger’s side window.
¶8 When Hureta completed the name check, he returned to the Mazda, and Moreno
approached him, indicating that he had observed defendant making “furtive movements”
toward the center console, which defendant had previously opened at the beginning of the
traffic stop. Hureta asked defendant “if he was okay[,] at which time he became irate again and
began yelling.” Hureta asked defendant to lower the windows of the Mazda, and defendant
lowered the passenger’s side window slightly. He asked defendant to lower it further, and
3 No. 1-23-2039
defendant lowered it a bit more, but “[n]ot enough for my partner to see inside the vehicle.”
Hureta then asked defendant to exit the vehicle, but defendant refused. Hureta repeated his
demands several times, but defendant continued to refuse to exit the vehicle. Defendant began
making calls on his cell phone, after which Hureta again asked him to exit the vehicle and
defendant again refused.
¶9 Hureta then “grabbed” defendant’s arm, and, in response, defendant held on to the steering
wheel tightly and “stiffen[ed]” his body; Hureta testified that he grabbed defendant’s arm to
place him in custody “[b]ecause we felt we were about to receive a battery, and he was
obstructing our command” by not following Hureta’s requests. Defendant’s mother arrived on
the scene, and Hureta addressed her, asking her to obtain her son’s cooperation. Defendant and
his mother “exchanged words” and defendant indicated that he was not going to comply with
the officers’ demands.
¶ 10 Hureta and Moreno approached the driver’s side of the Mazda and demanded several times
for defendant to exit the vehicle, but defendant did not comply. Moreno then placed handcuffs
on one of defendant’s wrists and, in response, defendant grasped the steering wheel and
stiffened his body. Two other officers, including Officer John Szajerski, then arrived at the
scene; Hureta had requested additional officers as backup to “[d]eescalate the situation” due to
defendant’s behavior. The officers approached the driver’s side of the vehicle, where Moreno
was attempting to remove defendant from the vehicle, and Szajerski and Moreno “assist[ed]
the defendant out of the vehicle.”
¶ 11 Once defendant was outside the vehicle, he “dropped his dead weight” to the ground and
pulled his arm toward the center of his body. Defendant was then “taken to the squad car” and,
4 No. 1-23-2039
when Szajerski placed defendant inside the police vehicle, defendant “spit on Officer
Szajerski’s shoulder.”
¶ 12 Hureta testified that he was wearing a body-worn camera at the time of the events in
question, and that it was activated and working properly. Portions of the video from the body-
worn camera were admitted into evidence and published to the jury.
¶ 13 The video, which is contained in the record on appeal, is slightly under eight minutes long
and contains no audio. 3 It depicts Hureta exiting an unmarked police vehicle which is parked
on the street, partially blocking a concrete pad located in the rear of the backyard of a house.
The backyard is fenced with a chain-link fence, but the gate is open, permitting a black Mazda
to park on the concrete. Immediately after Hureta exits the vehicle, the Mazda’s driver’s side
door opens, and defendant’s head appears; the driver’s side door appears to remain open during
the entirety of the video. While there is no audio, it appears as though Hureta is addressing
defendant as he approaches, pointing toward the front of the house—where defendant allegedly
double-parked—and defendant responds. While Hureta and defendant continue speaking,
defendant hands Hureta his driver’s license and other documentation; a car seat can be
observed in the backseat of the vehicle, on the passenger’s side, and Moreno is standing outside
the vehicle next to the rear passenger’s side door.
¶ 14 Slightly less than one minute into the traffic stop, Hureta returns to the police vehicle to
perform a name check. Approximately one minute later, Hureta again approaches the Mazda;
on his way, Moreno meets him and says something to him. After speaking with Moreno, Hureta
returns to the driver’s side of the vehicle and Moreno stands next to the front passenger’s side
door. Hureta makes a gesture for defendant to lower the front passenger’s side window, and it
3 As we describe later, a different State’s exhibit contains the same video with audio. 5 No. 1-23-2039
lowers slightly. He appears to request that it be lowered further, and the window is opened
approximately a third of the way. Defendant and Hureta continue conversing, while Moreno is
crouched to look through the front passenger’s side window. During the conversation,
defendant appears to become agitated.
¶ 15 Approximately three and a half minutes into the traffic stop, Hureta makes a gesture which
appears to indicate that defendant should exit the vehicle. Instead, defendant makes a phone
call on his cell phone. Hureta again makes a similar gesture, and defendant again appears to
make a phone call. Hureta addresses defendant and, while they converse, Moreno reaches
through the passenger’s side window and opens the door, leaning one arm on the top of the
front passenger’s seat while his other hand rests on his firearm, where it remains for
approximately the next minute. When defendant observes Moreno touching his firearm, he
immediately takes objection, gesturing to the backseat—where his young daughter is seated—
and placing both hands in front of him near the steering wheel. Hureta repeatedly makes
gestures indicating that defendant should exit the vehicle, and defendant continuously shakes
his head, holding both hands on the steering wheel. Defendant raises one hand, which has been
holding his cell phone, and speaks animatedly into the phone. During the conversation,
defendant looks at each officer, appearing to read their nametags to relay over the phone.
¶ 16 Six minutes into the video, Moreno moves from the Mazda into the street, appearing to
look down the street, then again approaches the Mazda on the passenger’s side. Hureta and
defendant continue to speak to each other, when a woman appears from the street and stands
near the police vehicle. Hureta appears to address her, ordering her to stay back, and the woman
responds. Defendant then sticks his head out of the vehicle and speaks to her. At that point,
Hureta, defendant, and the woman all appear to be speaking simultaneously. Defendant leans
6 No. 1-23-2039
out of the vehicle to yell something at her, and Moreno reaches into the vehicle through the
open passenger’s side door, appearing to remove the keys from the ignition. Moreno then
approaches the woman, who is holding a cell phone, and speaks with her. She walks to the end
of the concrete, looking down the street as Moreno approaches the driver’s side of the Mazda,
and additional police officers soon arrive at the scene. Moreno removes a pair of handcuffs
from his belt and motions to the other officers. As the video ends, Moreno is holding the
handcuffs while Hureta stands near the driver’s side door, another officer stands at the
passenger’s side door, and a fourth officer is approaching.
¶ 17 Officer Szajerski
¶ 18 Chicago police officer John Szajerski testified that, on May 9, 2022, at approximately
2:45 p.m., he was on routine patrol with two other officers when he received a call that a fellow
officer needed assistance with respect to a traffic stop; while Szajerski was in an unmarked
police vehicle, he was in full police uniform. When he arrived at the address, he observed
officers performing a traffic stop, with defendant seated inside the vehicle and an infant in the
rear passenger’s seat. When he approached the vehicle, Szajerski observed that defendant was
“very agitated” while Moreno was speaking to him and “trying to de-escalate him, trying to
get him to calm down and just have a normal conversation with him.” Moreno attempted to
convince defendant to exit the vehicle of his own volition, but defendant refused to do so, so
Moreno placed one handcuff on defendant’s wrist, at which point defendant “tensed up his
body, grabbed onto the steering wheel and refused to move.”
¶ 19 Szajerski attempted to remove defendant from the vehicle, placing his arm under
defendant’s shoulder to guide him out, but defendant “grab[bed] on the steering wheel and held
on.” Eventually, Szajerski and Moreno were able to pull him from the seat; momentum caused
7 No. 1-23-2039
the officers to fall backward and caused defendant to fall to the ground. While defendant was
on the ground, Szajerski noticed a pair of scissors in defendant’s front pocket, so he helped
place defendant onto his stomach, where Szajerski and the other officers placed defendant in
handcuffs. After defendant was handcuffed, Szajerski assisted defendant to his feet, and he and
two other officers walked defendant to one of the police vehicles. While they were walking to
the police vehicle, defendant was “still agitated, screaming, yelling profanities,” and, at one
point, threw himself to the ground. Szajerski and the other two officers each grabbed defendant
by a limb and carried him to the police vehicle. When they reached the police vehicle, Szajerski
placed defendant inside the vehicle. As he was guiding defendant’s legs into the vehicle,
Szajerski “heard a loud spitting noise, at which point I looked down and realized that I had spit
and saliva on my uniform,” just above his right shoulder.
¶ 20 Szajerski testified that he was wearing a body-worn camera at the time of the events in
question, and that it was activated and working properly. Portions of the video from the body-
worn camera were admitted into evidence and published to the jury.
¶ 21 Szajerski’s body-worn camera video, which is contained in the record on appeal, is in the
form of two clips, one which is slightly under four minutes long and one which is 13 seconds
long; neither clip contains audio. 4 The first clip begins with Szajerski standing near the rear
driver’s side window of the Mazda; Hureta is standing next to the driver’s door, which is open,
and an infant can be observed in a car seat on the rear passenger’s side. Hureta and defendant
speak for approximately 30 seconds, then Hureta leaves and Moreno, holding handcuffs in one
hand, takes his place. Moreno speaks to defendant, who becomes increasingly agitated.
4 As with Hureta’s video footage, a different State’s exhibit contains the same video with audio. 8 No. 1-23-2039
¶ 22 After approximately one minute, Moreno reaches into the Mazda and grabs defendant’s
left hand, placing a handcuff on it. Simultaneously, Szajerski reaches into the vehicle and
places his arm under defendant’s left armpit. Defendant does not leave the vehicle but lowers
his head and holds on to the steering wheel. The officers then pull him out of the vehicle and
defendant falls to the ground, losing his glasses; a pair of scissors can be observed in his front
pocket and are removed by one of the officers. Defendant is placed onto his stomach and
handcuffed by multiple officers, after which Szajerski and another officer assist him to his feet.
Szajerski then escorts defendant to the alley and down several houses, to where a police vehicle
is parked. As they are passing a different vehicle, defendant appears to make contact with that
vehicle, then falls to the ground. Szajerski and other officers then pick defendant up and carry
him the rest of the way to the police vehicle. Defendant is placed head-first into the police
vehicle, and the first video clip ends with Szajerski swinging defendant’s legs into the vehicle.
¶ 23 The second clip, which is only 13 seconds long, begins where the first video ended, with
Szajerski placing defendant’s legs into the police vehicle. Defendant then sits up inside the
vehicle as Szajerski closes the door.
¶ 24 Yolanda Harris
¶ 25 After the State rested and a motion for directed verdict was denied, Yolanda Harris,
defendant’s mother, testified on his behalf that, on May 9, 2022, defendant resided at an
address on the 10100 block of South Normal Avenue with his girlfriend and seven-month-old
daughter. Harris was present when the officers removed defendant from the Mazda and
observed that he was placed facedown on the ground before being bodily moved to the police
vehicle and further observed that, at some point, defendant lost his glasses.
9 No. 1-23-2039
¶ 26 Defendant
¶ 27 Defendant testified that, on the afternoon of May 9, 2022, he had just left for work—and
to drop his infant daughter off to daycare—when he realized he had forgotten his work ID at
home. He had only reached the corner, which was approximately three houses away from his
residence, so he reversed down the street until he was in front of his home, where he turned on
his hazard lights and double-parked for several minutes, waiting for his girlfriend to bring him
his ID. Defendant looked at his rearview mirror and observed an approaching unmarked police
vehicle, so he moved his vehicle, parking it in his backyard; the other vehicle did not have any
lights or sirens to indicate that it was attempting to effectuate a traffic stop. After defendant
parked in his backyard, the other vehicle turned on its lights and sirens and parked behind him.
Two officers exited the vehicle and approached, asking why he “was running away from them.”
Defendant responded that he was not running away but simply parked on his own property.
They asked for his license, insurance, and registration, which he provided. While waiting for
Hureta to perform a name check, defendant denied making any furtive movements or other
“random movements.”
¶ 28 After returning defendant’s documentation to him, Hureta asked defendant to turn off the
engine and lower his window. The driver’s side door was still open, but defendant lowered the
passenger’s side window to the level where “I felt safe enough they can see me and I could see
them.” The officer on the passenger’s side of the vehicle reached through the window, opened
the door, and removed the keys from the ignition. Defendant also noticed that the officer had
placed his hand on his weapon, and defendant asked Hureta “what’s the deal.” Hureta told
defendant not to concern himself and to focus on Hureta. Defendant indicated that, from that
point, “I didn’t feel safe in this condition with my daughter being in the car.” The officers
10 No. 1-23-2039
indicated that defendant could step outside and continue the conversation from outside the
vehicle, but defendant said that he would “feel more comfortable talking to y’all inside my
vehicle.” At that point, the officers informed him that they were going to detain him and search
his vehicle for contraband. Defendant testified that Hureta also “threatened me and told me
that my daughter was going to be placed under DCFS custody.”
¶ 29 Defendant denied ever threatening the officers, but testified that he made three phone calls
to his girlfriend, his mother, and his father, letting him know the situation and that he was
going to be detained by the police. Shortly after speaking with his mother, she arrived at the
residence; at that point, defendant was still sitting inside his vehicle. Defendant was again
instructed to exit the vehicle and refused, after which he was physically pulled from the vehicle
by several officers; defendant identified Hureta and Szajerski as two of the officers involved
in removing him from the vehicle. Defendant admitted that he grabbed the steering wheel as
he was being pulled out of the vehicle, as he “didn’t want to leave the vehicle until someone
came to pick up my daughter.” Even though his mother had arrived by then, “[his] daughter
wasn’t in her custody” at that time.
¶ 30 As he was being taken to the police vehicle, defendant was “slammed onto the hood of” a
nearby vehicle, which hurt his abdomen, and defendant fell to the ground. The officers then
picked him up and carried him by the limbs to the police vehicle, which caused him pain.
Defendant had lost his glasses when he was removed from his vehicle, so he was unable to see
clearly, and had “dirt and debris” on his face and body, including in his mouth. His “first
reaction was to get the foreign substances out of my mouth,” so he spat toward the ground
outside the police vehicle. He did not notice where Szajerski was standing at the time, but knew
that he was nearby, as he was pushing defendant’s legs into the police vehicle.
11 No. 1-23-2039
¶ 31 On cross-examination, defendant admitted that he was not happy when he was stopped by
the police and was yelling and cursing during his interactions with them. Defendant also
admitted to telling the officers that “it was about to get worse with one phone call,” then
proceeded to make three phone calls. Defendant further admitted that he cursed at Szajerski as
Szajerski closed the door to the police vehicle.
¶ 32 On redirect examination, defendant testified that the officers were cursing at him
throughout the interaction, as well, with Hureta informing him at one point that “it was going
to be your bad f*** day.”
¶ 33 Rebuttal Witnesses
¶ 34 After the defense had presented its case-in-chief, the State called Hureta and Szajerski as
rebuttal witnesses. In each case, the officer again authenticated the video from the body-worn
camera he was wearing during the time in question, and the same video from earlier was
admitted into evidence and played for the jury, this time with audio. 5
¶ 35 At the beginning of Hureta’s video, as he approaches defendant, defendant can be heard in
the background informing him that there is a baby inside the Mazda. Hureta responds by
congratulating him on the baby, but informs him that he is not permitted to reverse down a
one-way street or double-park. Defendant appears annoyed, but hands over his documentation.
After Hureta completes the name check, as he returns, Moreno approaches him and indicates
that defendant made movements toward the center console after Hureta walked away.
¶ 36 Hureta returns to the Mazda and asks defendant to lower the passenger’s side window, then
asks, “so why are you driving recklessly with a baby in the back?” Defendant denies he was
5 We note that Hureta’s video stops at an earlier point than the previously-admitted version with no audio, but otherwise appears identical to that version. 12 No. 1-23-2039
driving recklessly and Hureta disagrees, saying that he had been speeding and reversing down
a one-way street, and defendant interrupts, denying that he was speeding. Defendant then
indicates that it had been a bad day, and that “it’s gonna to get even worse for you two d*** if
y’all don’t leave me the f*** alone.” Hureta asks if that was a threat and defendant states that
it was not, but that they are on his property, the purpose of the traffic stop had ended, and they
were now trespassing. Hureta indicates that they still had the right to be on the property, and
defendant states that he disagrees, growing increasingly agitated, especially when Hureta
suggests that defendant had “sped away” upon observing the police vehicle.
¶ 37 Hureta asks defendant to step outside the vehicle, and defendant indicates that he is going
to call his father. Hureta asks defendant to exit the vehicle again, but defendant remains on the
phone with his father, explaining that the police had stopped him. As he speaks, Hureta asks
him to exit the vehicle again, while Moreno opens the passenger’s side door and places his
hand on his firearm. When Moreno opens the door, defendant places the call on speakerphone
and narrates that the officer is now entering his vehicle without permission and, upon observing
Moreno placing his hand on his firearm, defendant grows more agitated, asking repeatedly why
he is holding his firearm and asking if he is planning to shoot defendant with his baby in the
vehicle. Defendant holds his hands in front of him, repeatedly expressing concern about the
officer shooting him and when Hureta asks him again to exit the vehicle, indicates that he is
not leaving, as he is afraid that if he does, he would be killed. Hureta indicates that defendant
is “acting a little hostile,” and defendant yells in response, “Because I’m f*** scared!”
¶ 38 Defendant then makes another phone call and again relays that he is stopped by the police
and is afraid they will shoot him, reciting the officers’ names and badge numbers. Hureta again
demands that defendant exit the vehicle and defendant refuses. Defendant’s mother then
13 No. 1-23-2039
appears, asking him to calm down, but defendant continues to be agitated, informing his mother
that Moreno was “ready to draw his gun on me *** with my baby in the car.” While defendant
is talking to his mother, Moreno removes the keys from the ignition, and defendant becomes
more upset, indicating that the officers had no jurisdiction to do so. The video then ends.
¶ 39 In Szajerski’s video, the video opens with defendant and his mother expressing concern
about the officers’ firearms, and the officers repeatedly state that he will not be shot and that
he had never been threatened with a weapon. Defendant points to the fact that Moreno
previously had his hand on his firearm, and argues that there were “way too many” officers for
him to feel comfortable. He then again expresses concern about being killed, and Moreno asks
him to exit the vehicle. Moreno indicates that no one was threatening him with a firearm and
defendant responds, “you did, m***! You reached for your gun! That’s the biggest f*** threat
that you could do in Chicago!” Moreno then states, “you spit in my face one more time, then
we’re going to have a f*** problem,” and defendant responds, “What you gonna do? You
gonna kill me?” Moreno proceeds to reach into the vehicle and handcuff defendant, while
Szajerski attempts to remove defendant from the vehicle. Defendant’s mother can be heard in
the background, crying and saying “please don’t kill” him. After defendant is pulled from the
vehicle and handcuffed, he continues cursing at the officers while they handcuff him and
transport him to the police vehicle.
¶ 40 In the second video, which is shorter, a spitting sound can be heard, and defendant states
“F*** off” as the door to the police vehicle swings closed.
¶ 41 After deliberations, the jury found defendant guilty of aggravated battery to a peace officer.
Defendant’s motion for a new trial was denied, and he was ultimately sentenced to 30 months’
probation. Defendant timely filed a notice of appeal, and this appeal follows.
14 No. 1-23-2039
¶ 42 ANALYSIS
¶ 43 On appeal, defendant contends that the State failed to prove him guilty of aggravated
battery to a peace officer where it failed to establish beyond a reasonable doubt (1) that the
officers were performing an official duty in good faith and (2) that defendant was aware they
were doing so. When reviewing the sufficiency of the evidence in a criminal case, we must
determine whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541
(1999). “[A] reviewing court will not reverse a criminal conviction unless the evidence is so
unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant’s
guilt.” People v. Rowell, 229 Ill. 2d 82, 98 (2008). A reviewing court does not retry the
defendant or substitute its judgment for that of the trier of fact with regard to the credibility of
witnesses or the weight to be given to each witness’ testimony. People v. Jackson, 232 Ill. 2d
246, 281 (2009); People v. Ross, 229 Ill. 2d 255, 272 (2008). Instead, “it is our duty to carefully
examine the evidence while bearing in mind that the trier of fact is in the best position to judge
the credibility of witnesses, and due consideration must be given to the fact that the fact finder
saw and heard the witnesses.” People v. Herman, 407 Ill. App. 3d 688, 704 (2011) (citing
People v. Cunningham, 212 Ill. 2d 274, 280 (2004), and Smith, 185 Ill. 2d at 541).
¶ 44 In this case, defendant was found guilty of aggravated battery to a peace officer, which
required the State to prove (1) that defendant committed a battery other than by the discharge
of a firearm and (2) that he knew the battered individual to be a peace officer “performing his
or her official duties.” 720 ILCS 5/12-3.05(d)(4) (West 2022). On appeal, defendant does not
dispute that the State established the first proposition, namely, that he committed a battery by
15 No. 1-23-2039
spitting on Szajerski, but challenges only the second proposition. Specifically, defendant
contends that the State failed to prove that Szajerski was a peace officer performing his official
duties or that defendant was aware of that fact.
¶ 45 Defendant’s argument on appeal is premised on his challenge to the traffic stop itself.
Defendant claims that the traffic stop was unconstitutional or, at a minimum, that the officers
exceeded the scope of a permissible stop, and, therefore, the officers were not performing their
official duties at the time he spit on Szajerski. He further contends that even if they were
considered to have been performing their official duties, he was unaware of this fact, as he
believed that the traffic stop was unlawful.
¶ 46 As an initial matter, the State claims that, since defendant’s argument is, in essence, a
challenge to the constitutionality of the traffic stop, it should have been raised in a motion to
quash or motion to suppress. The State further suggests that defendant’s failure to raise the
issue in such a pretrial motion results in the forfeiture of his argument on appeal. The issue of
whether a defendant was arrested without probable cause must be raised before the trial court
in the first instance or else it is forfeited on appeal. People v. Nilsson, 44 Ill. 2d 244, 246-47
(1970); People v. Jarrell, 248 Ill. App. 3d 1043, 1049 (1993). In this case, defendant’s
argument concerning the constitutionality of the traffic stop is not the typical one in which a
criminal defendant seeks to quash his arrest or suppress evidence found as a result of the stop.
Instead, defendant claims that the alleged impropriety of the traffic stop affects the
determination as to whether the police officers were performing their official duties at the time
of the battery. As such, defendant contends that his challenge to the traffic stop, in this context,
is part of a sufficiency-of-the-evidence analysis and is therefore not forfeited for that purpose.
16 No. 1-23-2039
¶ 47 We observe, however, that raising issues of probable cause in a pretrial motion to quash or
motion to suppress permits both parties to develop the factual record concerning the
circumstances surrounding the traffic stop and subsequent arrest. See, e.g., People v. Krinitsky,
2012 IL App (1st) 120016, ¶ 26 (finding that, where the State raised a new argument
concerning the defendant’s fourth amendment claims for the first time on appeal, that argument
was forfeited, as “this argument would have been best presented in the circuit court, where
both sides would have been able to present evidence outlining their respective positions”).
Here, defendant makes numerous factual claims concerning the officers’ intentions and
motivations during the traffic stop, including a claim that they “used the stop as a pretext to
harass” him. Since defendant’s claims were never raised below, however, neither party
developed a full evidentiary record on the matter, and the trial court was never afforded the
opportunity to make findings of fact concerning the propriety of the traffic stop and arrest. 6
See People v. Harris, 228 Ill. 2d 222, 230 (2008) (in ruling on a motion to suppress, a trial
court makes factual findings which may be rejected only if they are against the manifest weight
of the evidence).
¶ 48 At oral argument in this appeal, defense counsel contended that a motion to suppress or to
quash defendant’s arrest would have been fruitless, as his conviction concerned his activities
after the traffic stop in question. As discussed further below, we agree with the general
proposition that the relevant conduct in the instant case is defendant’s behavior in response to
the traffic stop. Even if defendant’s decision not to file a motion to suppress or quash was
reasonable, however, such a motion was not the only way in which defendant could seek to
6 We note that defense counsel attempted to raise issues concerning the reasons for the traffic stop during his cross-examination of Hureta and during closing argument, but was not permitted to do so based on a pretrial ruling on the State’s motion in limine to bar such a line of questioning. 17 No. 1-23-2039
make a full evidentiary record on the propriety of the arrest. Although not included in the
record on appeal, it appears that the State filed a motion in limine seeking to bar defendant
from challenging the propriety of the traffic stop and subsequent arrest based on his failure to
file a motion to suppress or quash. 7 Defendant could have objected to that motion in limine,
which, if ultimately denied, would have permitted it to develop an adequate evidentiary record
during the trial itself. While defense counsel suggested that the motion in limine should not
have been granted, defendant did not object to the motion below, nor did he raise it in his brief
on appeal, so the question is not properly before us on appeal. See Ill. S. Ct. R. 341(h)(7) (eff.
Oct. 1, 2020) (points not argued in the appellant’s brief may not be raised in oral argument).
¶ 49 As an appellate court, we are not in a position to decide new issues of fact for the first time
on appeal. See People v. Hughes, 2015 IL 117242, ¶ 46 (finding that where the defendant
raised new theories concerning the voluntariness of his confession for the first time on appeal
for which the record was not adequately developed, “the appellate court ought not to have
decided these factual issues anew”). As our supreme court observed in Hughes, “[b]y declining
or failing to raise these claims below, defendant deprived the State of the opportunity to
challenge them with evidence of its own, he deprived the trial court of the opportunity to decide
the issue on those bases, and he deprived the appellate court of an adequate record to make
these determinations.” Id. Accordingly, we agree with the State that defendant’s challenges to
the propriety of the traffic stop and his subsequent arrest have been forfeited on appeal to the
extent that they require us to make factual findings as to the officers’ motivations.
¶ 50 Even, however, if we were to consider defendant’s arguments concerning the propriety of
the stop, defendant’s challenge to the constitutionality of the traffic stop does not substantively
7 The parties agreed at oral argument that the State filed such a motion. 18 No. 1-23-2039
affect our analysis of the question at issue on appeal. Our supreme court has made clear that a
defendant may not engage in unlawful behavior in response to actions by police officers which
violate the fourth amendment. See People v. Abrams, 48 Ill. 2d 446, 455-56 (1971); People v.
Locken, 59 Ill. 2d 459, 465 (1974); People v. Villarreal, 152 Ill. 2d 368, 378-79 (1992). See
also 720 ILCS 5/7-7 (West 2022) (“A person is not authorized to use force to resist an arrest
which he knows is being made *** by a peace officer ***, even if he believes the arrest is
unlawful and the arrest in fact is unlawful.”). Thus, in People v. McIntosh, 2020 IL App (5th)
170068, ¶ 57, the Fifth District found that the constitutionality of a traffic stop was “not
relevant” to the determination of whether an officer was engaged in performance of his official
duties for purposes of the aggravated battery statute. The McIntosh court further found that,
“[i]nstead, a peace officer is executing his ‘official duties’ when acting in the good faith
performance of his job-related duties regardless of whether those actions are later determined
to be constitutionally unreasonable.” Id.
¶ 51 In this case, defendant focuses on the McIntosh court’s use of the term “good faith” to
suggest that the officers in this case were not acting in good faith where they were violating
his fourth amendment rights. Defendant’s reliance on this language, however, is misplaced.
First, the statute defining the offense does not use the term “good faith,” simply requiring that
the defendant know that the battered individual is “[a] peace officer *** performing his or her
official duties ***.” 720 ILCS 5/12-3.05(d)(4) (West 2022). Moreover, the McIntosh court’s
use of that term occurred in the context of its rejection of the same argument defendant makes
here, namely, that the officers could not be engaged in official duties when they were executing
an unlawful traffic stop. See McIntosh, 2020 IL App (5th) 170068, ¶ 57. Defendant’s
interpretation is thus directly at odds with the McIntosh court’s analysis on the matter. We also
19 No. 1-23-2039
observe that courts have found similar individuals to be performing official duties even when
doing so inappropriately, further demonstrating that “good faith” is not a separate requirement
of the analysis. See, e.g., People v. Smith, 342 Ill. App. 3d 289, 296 (2003) (finding correctional
officer “performed his duty in a flippant, insulting, and provocative manner, but he was
nevertheless performing a duty”). Instead, we agree with the Fourth District that the relevant
distinction is whether “the victim was engaged in the good-faith performance of a job-related
duty or solely in [his] own personal pursuits unrelated to any occupational duty.” People v.
Campbell, 2021 IL App (4th) 190525-U, ¶ 19.
¶ 52 We similarly find unpersuasive defendant’s reliance on cases discussing “authorized acts.”
Again, the statute at issue does not require the battered individual to be performing an
authorized act, but “performing his or her official duties.” 720 ILCS 5/12-3.05(d)(4) (West
2022). These terms are not synonymous, despite defendant’s attempts to highlight their
similarities. See People v. Brock, 2023 IL App (5th) 220396-U, ¶ 26; People v. Jones, 2015 IL
App (2d) 130387, ¶ 19; City of Champaign v. Torres, 214 Ill. 2d 234, 252 (2005) (Freeman, J.,
dissenting) (characterizing “ ‘official duties’ ” as covering “a broader range of police activity”
than “ ‘authorized act[s]’ ”). Thus, the case law cited by defendant is of limited use for the
purposes of the question before us in the current appeal.
¶ 53 We also observe that the conduct in question is that of Szajerski, the victim of the battery,
so any alleged impropriety which occurred prior to his arrival bears little weight on the question
of whether he was performing his official duties at the time defendant spit on him. See Smith,
342 Ill. App. 3d at 295-96 (even though a correctional officer had allegedly called the
defendant a racially derogatory name two days earlier, “because the issue is whether [he] was
performing his official duties at the time of the assault, only events contemporaneous with the
20 No. 1-23-2039
assault are relevant to the question of guilt). In this case, when defendant spit on him, Szajerski
was in the process of placing defendant into a police vehicle after he had been arrested. There
can be no dispute that this conduct is squarely a job-related duty which is properly
characterized as part of a police officer’s “official duties” for purposes of the aggravated
battery statute. 8 Accordingly, a rational trier of fact could certainly have found that Szajerski
was performing his official duties at the time of defendant’s battery.
¶ 54 We also find that a rational trier of fact could have found that defendant was aware that
Szajerski was a peace officer performing his official duties at the time defendant spit on him.
Defendant does not dispute that he knew that Szajerski was a police officer, nor could he, as
Szajerski was wearing an official police uniform during the entirety of the proceedings.
Instead, defendant contends that, since he believed the traffic stop was unlawful, he did not
know that Szajerski was engaged in his official duties at the time of the battery. We do not find
this argument persuasive.
¶ 55 Defendant’s position would essentially establish a defense to a charge of aggravated battery
to a peace officer based on the defendant’s alleged belief that the police officer was acting
unlawfully. As explained above, however, our supreme court—and our legislature—have
made clear that the illegality of an arrest does not excuse a defendant’s use of force. See
Abrams, 48 Ill. 2d at 455-56; Locken, 59 Ill. 2d at 465; Villarreal, 152 Ill. 2d at 378-79; 720
ILCS 5/7-7 (West 2022). Defendant’s interpretation of the law is thus irreconcilable with the
clear prohibition against the use of force in such a situation, and none of the cases defendant
cites stand for such a proposition.
8 Indeed, an arrest—including an unlawful one—is even considered an “authorized act” under the law. See Locken, 59 Ill. 2d at 465-66. 21 No. 1-23-2039
¶ 56 In this case, the evidence establishes that defendant was aware that Szajerski was a police
officer who was assisting in the arrest of defendant. Accordingly, a rational trier of fact could
have found that, when defendant spit on Szajerski, he was aware that he was spitting on a peace
officer who was performing official duties. We therefore affirm defendant’s conviction for
aggravated battery of a peace officer.
¶ 57 CONCLUSION
¶ 58 For the reasons set forth above, we affirm defendant’s conviction for aggravated battery to
a peace officer, as a rational trier of fact could have found beyond a reasonable doubt that
defendant spit on Szajerski while knowing he was a peace officer engaged in the performance
of his official duties.
¶ 59 Affirmed.