2021 IL App (2d) 191047-U Nos. 2-19-1047, 2-19-1049, & 2-19-1050 cons. Order filed May 14, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) Nos. 19-CF-29 ) 19-TR-131 ) 19-TR-132 ) ANTUAN J. HUBBARD, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶1 Held: Defendant was properly convicted of aggravated fleeing or attempting to elude a peace officer when he continued driving for more than a mile after the officer activated his lights, airhorn, and siren. The evidence was, however, insufficient to prove defendant guilty of operating an uninsured motor vehicle.
¶2 In case No. 19-CF-29, defendant, Antuan J. Hubbard, was charged with one count of
aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(4) (West 2018))
and two counts of resisting or obstructing a peace officer (720 ILCS 5/31-1(a) (West 2018)). In
case No. 19-TR-131, he was charged with driving with a revoked license (DWLR) (625 ILCS 5/6- 2021 IL App (2d) 191047-U
303(a) (West 2018)). In case No. 19-TR-132, he was charged with operating an uninsured motor
vehicle (OUMV) (id. § 3-707(a)). After a jury trial on all of the charges, defendant was found not
guilty of the second charge of resisting or obstructing a peace officer and guilty of the remaining
charges. The trial court imposed a term of four years’ imprisonment for aggravated fleeing or
attempting to elude, and concurrent terms of 180 days in jail for DWLR and resisting a peace
officer, and fined him $300 for OUMV. In these consolidated appeals, defendant contends that he
was not proved guilty beyond a reasonable doubt of aggravated fleeing or attempting to elude and
of OUMV. We disagree with the first claim of error and agree with the second claim. Therefore,
we affirm in part and reverse in part.
¶3 I. BACKGROUND
¶4 The charge of aggravated fleeing or attempting to elude alleged that, on January 2, 2019,
defendant knowingly operated a motor vehicle on a public road in Aurora and that, after a peace
officer gave him a visual or audible signal directing him to stop, he willfully failed or refused to
obey the direction, fled and attempted to elude the officer, and, while doing so, disregarded two or
more traffic control devices. The two charges of resisting or obstructing a peace officer alleged
that (1) defendant later refused another officer’s command to walk back toward him, and
(2) defendant resisted arrest by trying to pull away from the arresting officers. The remaining
charges are self-explanatory. We summarize the pertinent trial evidence.
¶5 Derrick Hight, an Aurora police officer, testified on direct examination as follows. On the
evening of January 2, 2019, he was on patrol, in uniform and driving a marked squad car. When
activated, the car’s overhead lights flashed red and blue. The car also had a siren and an air horn.
A dash camera was linked to a microphone that Hight wore. When the camera was switched on,
which Hight could do by activating his overhead lights, the microphone was activated.
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¶6 Hight testified that, at approximately 11:40 p.m., as he drove north on Ohio Street
approaching Benton Street, he saw a silver Chevy Malibu turn from westbound Benton onto Ohio,
approaching Hight’s car in the opposite lane. The Malibu had only one functioning headlight, a
traffic violation. A computer check showed that the car was not registered to defendant. As Hight
slowed to a stop sign, the Malibu passed him and turned onto westbound North Avenue without
activating its turn signal, another violation. Hight decided to follow the Malibu and possibly stop
it. He turned west onto Second Avenue, parallel to North Avenue. After making several more
turns, Hight turned west onto North and was able to see the Malibu as it approached a stop sign.
¶7 Hight testified that, at first, he followed the Malibu without activating the overhead lights.
The Malibu turned onto southbound Jackson Street and then onto westbound Fifth Avenue. At
this point, Hight decided to stop the car. He activated his lights, which switched on the dash
camera. The Malibu kept on going. Hight then activated his airhorn, but the Malibu again did not
pull over. Hight then activated his siren and radioed dispatch that the traffic stop had turned into
active pursuit.
¶8 A video of the pursuit was published to the jury. Hight identified the Malibu’s driver as
defendant. Hight testified that, five times during the pursuit, defendant failed to make full stops
at stop signs. The first time was when defendant turned from westbound Fifth Avenue onto
southbound Fifth Street. The second was when he turned from southbound Fourth Street onto
westbound Sims Street. The third was on westbound Sims Street at the intersection with Douglas
Avenue, where defendant disregarded a stop sign as another vehicle with the right of way was
about to turn onto Douglas Avenue. The fourth was when defendant turned east on Evans Road
toward southbound Sexton Street and rolled through the stop sign. The fifth time was when
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defendant turned west on Sims Street and again disregarded the stop sign at the intersection with
Douglas Avenue.
¶9 Hight testified that, when the Malibu finally stopped, he started to shout commands at
defendant and the passenger in the Malibu. By then, several other officers, including Che Earwood
and Ryan Tinley, had arrived. Later, Earwood took over issuing verbal commands.
¶ 10 Hight identified a certified driver’s license abstract for defendant. It stated that, on January
2, 2019, a revocation of the license was in effect. Hight testified that, while interacting with
defendant, he was unable to locate any vehicle liability insurance and was never provided any.
¶ 11 Hight testified on cross-examination that, when defendant finally pulled over on Evans
Road just before Sexton Street, he obeyed Hight’s commands to turn off the car, put up his arms,
and exit the car. The area of the pursuit was residential. Throughout the pursuit, defendant
generally drove at about the same speed and stayed within the speed limit, except when he drove
approximately 35 miles per hour through an alley that had a speed limit of 15 miles per hour.
¶ 12 Earwood testified as follows. He drove his marked squad car to the area of Sims Street
and Sexton Street to assist Hight in pursuing defendant. Earwood saw that Hight’s car’s overhead
lights were on, and he heard the car’s siren. After Hight stopped defendant, Earwood positioned
his car to the right of Hight’s car. At some point, Earwood started issuing verbal commands to
defendant. Earwood grabbed defendant’s hands and ordered him to walk backwards with
Earwood, but defendant soon pulled away and started to turn toward Earwood. At that point,
Earwood tried to push defendant into Earwood’s squad car, but defendant resisted, and Earwood
pushed him onto the ground. Tinsley and several other officers tried to restrain defendant, but he
continued to fight them. Eventually, the officers were able to arrest defendant.
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¶ 13 Tinsley testified as follows. While on patrol in a marked squad car, he drove to the area of
Evans Road and Sexton Street to assist Hight’s pursuit of defendant. Arriving there, he saw that
Hight’s squad car had its emergency lights on, and he heard its siren. Two other police cars were
arriving from elsewhere and following Hight; they had their emergency lights and sirens activated.
Tinsley followed them. When defendant finally stopped his vehicle, Tinsley positioned his car
behind those of Hight and Earwood. He went to the passenger’s side of the Malibu and heard
Hight and Earwood yell commands to defendant. Tinsley heard a scuffle, felt Earwood’s car lurch
in his direction, and heard something fall to the ground. He turned around and saw defendant on
the ground. Soon, Tinsley and other officers were able to arrest defendant. From when he heard
Hight call for assistance until he parked his squad car, Tinsley drove approximately 1½ miles.
¶ 14 The State rested.
¶ 15 Defendant testified that he had lived in Aurora until 2017. On January 2, 2019, he had two
small children. They and Leah Wells, their mother, resided near Evans Road and Sexton Street.
The children’s usual bedtime was 9 p.m. Wells’s home had an interior porch with security
cameras. On January 2, 2019, at approximately 11:45 p.m., defendant was driving to Wells’s home
to see his children. On the way there, he noticed that he was being followed by police cars. The
police cars’ overhead lights were on, and he could hear the cars’ sirens. After the stop, defendant
followed all of Hight’s commands.
¶ 16 Defendant rested. The State did not put on rebuttal evidence.
¶ 17 In his closing argument, defendant contended in part that the State’s evidence did not prove
beyond a reasonable doubt that he was guilty of OUMV. He noted that, although Hight testified
that he found no proof of insurance, he did not testify that defendant was ever asked to produce
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evidence of insurance or that defendant actually was uninsured. In rebuttal, the State referred to
Hight’s testimony that he neither found nor was provided proof of insurance.
¶ 18 On the charge of aggravated fleeing or attempting to elude, defendant conceded most of
the elements of the offense and focused on whether his delay in stopping was willful and caused
by the intent to flee or elude Hight. Defendant argued that his intent had been to go to Wells’s
home “to be safe.” He generally drove within the speed limit and made no evasive maneuvers,
such as sharp turns or driving off the road. In rebuttal, the State argued that defendant’s testimony
that he went to visit his small children three hours after their bedtime was incredible and that he
had led the police on a five-minute chase for more than a mile, at one point rolling through a stop
sign and risking a collision with another vehicle. The State noted the undisputed evidence that
defendant was aware that Hight was following him, with his marked squad car’s overhead lights
and siren activated. Finally, the State argued, the law did not make the desire for a safe location a
defense to fleeing and eluding.
¶ 19 The jury found defendant guilty of all the charges except one count of resisting arrest.
After he was sentenced as noted, he timely appealed.
¶ 20 II. ANALYSIS
¶ 21 Defendant contends that he was not proved guilty beyond a reasonable doubt of aggravated
fleeing or attempting to elude and of OUMV. In reviewing a challenge to the sufficiency of the
evidence, we ask only whether, after viewing all of the evidence in the light most favorable to the
State, any rational fact finder could have found the elements of the offense proved beyond a
reasonable doubt. People v. Ward, 154 Ill. 2d 272, 326 (1992). The fact finder is responsible for
determining the witnesses’ credibility, weighing their testimony, and deciding on the reasonable
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inferences to be drawn from the evidence. People v. Hill, 272 Ill. App. 3d 597, 603-04 (1995). It
is not our function to retry the defendant. People v. Lamon, 346 Ill. App. 3d 1082, 1089 (2004).
¶ 22 With these principles in mind, we consider first the conviction for aggravated fleeing or
attempting to elude. A person commits fleeing or attempting to elude when, having been given a
visual or audible signal by a peace officer directing him to bring his vehicle to a stop, he willfully
fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise
flees or attempts to elude the officer. 625 ILCS 5/11-204(a) (West 2018). The officer must be in
police uniform and, if he is driving a vehicle, the vehicle must display illuminated oscillating,
rotating, or flashing red or blue lights which, when used in conjunction with an audible horn or
siren, would indicate the vehicle to be an official police vehicle. Id. As charged here, a person
commits aggravated fleeing or attempting to elude when, in addition to the foregoing, his flight or
attempt to elude involves the disobeying of two or more official traffic control devices. Id.
§ 204.1(a)(4).
¶ 23 Defendant does not contest that he was driving the Malibu; that Hight was in full police
uniform and driving a marked and properly equipped police car; that, using his car’s lights and
sound devices, Hight directed defendant to stop; that defendant continued to drive for more than a
mile, or several minutes, after he knew that Hight was following him with his lights and siren
activated; and that defendant disobeyed at least two official traffic control devices.
¶ 24 Defendant contests only the sufficiency of the proof that he acted willfully with the intent
to disobey Hight’s signal to stop and thus “fle[d] or attempt[ed] to elude [Hight].” Id. § 11-204(a).
Defendant relies on the evidence that (1) he drove at a low speed, did not accelerate, usually
obeyed the speed limit, and did not engage in evasive maneuvers such as driving onto the curb or
jumping out of his car; and (2) he eventually brought his car to a halt peacefully and ultimately
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complied with Hight’s signal to stop. Thus, defendant asserts, the State did not prove the element
of willfulness. For the following reasons, we disagree.
¶ 25 A person commits fleeing or attempting to elude when, the officer having given him the
requisite signal to stop, he “willfully fails or refuses to obey such direction, increases his speed,
extinguishes his lights, or otherwise flees or attempts to elude the officer.” (Emphases added.)
625 ILCS 5/11-204(a) (West 2018). Plainly, there are four categories of offending conduct: three
specific categories and a catch-all. A defendant commits the offense if he willfully (1) fails or
refuses to obey the signal to stop; (2) increases his speed; (3) extinguishes his lights; or (4) engages
in any other conduct that amounts to (a) fleeing or (b) attempting (successfully or not) to elude the
officer.
¶ 26 Defendant contends in part that the State failed to prove willfulness because there was no
evidence that he exceeded the speed limit (except in the alley) or engaged in evasive maneuvers
such as making sharp turns. However, under the plain language of the statute, although speeding,
extinguishing one’s lights, and making sharp turns are all within the statutory prohibition, their
absence was not fatal. Rather, under the first prong of fleeing or attempting to elude, a defendant
can commit the offense where he “fails to or refuses to obey the signal to stop” after being properly
signaled to do so.
¶ 27 The evidence showed that, for the entire pursuit, which covered more than a mile,
defendant knew that Hight was following him in a marked police car and was ordering him to stop,
first by flashing his overhead lights and then by flashing the lights, activating his air horn, and
blasting his siren. Further, despite knowing that he was being ordered to stop, defendant chose to
keep driving until he arrived in the vicinity of Evans Road and Sexton Street. The jury could have
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properly found beyond a reasonable doubt that defendant willfully failed or refused to obey Hight’s
direction to stop even before the first stop sign was violated.
¶ 28 Defendant nevertheless argues that the jury might have considered the stop sign violations
to prove “otherwise flees or attempts to elude the officer,” such that any subsequent use of the
same stop sign violations would amount to an improper enhancement. In support of this concern,
defendant cites authority holding that a felony enhancement is a distinct element of an aggravated
offense and must be submitted to the jury. See, e.g., People v. Chairez, 2018 IL 121417, ¶ 17. In
order to enhance the offense from a misdemeanor fleeing or attempting to elude to aggravated
fleeing or attempting to elude, as charged, the State was required to prove the aggravating fact that
defendant violated two or more traffic control devices. 720 ILCS 5/11-204.1(a)(4) (West 2018).
This is significant because any fact, other than a prior conviction, which, by law, increases the
penalty for a crime, is an element of a distinct and aggravated crime that must be submitted to the
jury. Chairez, 2018 IL 121417, ¶ 17 (citing Alleyne v. United States, 570 U.S. 99, 101, 116-117
(2013) and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
¶ 29 Chairez does not avail defendant, however, because the jury was instructed that it needed
to find the element that made fleeing or attempting to elude aggravating. Specifically, the jury
was instructed as follows:
To sustain the charge of Aggravated Fleeing or Eluding a Peace Officer, the State must
prove the following propositions:
First Proposition: That the defendant was the driver or operator of a motor vehicle; and
Second Proposition: That the defendant was given a visual or audible signal by a police
officer directing the defendant to bring his vehicle to a stop;
Third Proposition: That the police officer was in police uniform and, if the officer was
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driving a vehicle, that vehicle displayed illuminated, oscillating, rotating, or flashing red
or blue lights, which when used in conjunction with an audible horn or siren, would indicate
the vehicle to be an official police vehicle;
Fourth Proposition: That the defendant willfully failed or refused to obey such signal in
order to flee or attempt to elude the officer; and
Fifth Proposition: That, when willfully fleeing or attempting to elude the police officer,
the defendant disobeyed two (2) or more official traffic control devices.
In applying these instructions to the facts presented at trial, a rational trier of fact could have found
that defendant had committed fleeing or attempting to elude prior to violating the first stop sign.
See People v. Pena, 170 Ill. App. 3d 347, 354-55 (1998) (willful attempting to elude can be inferred
from the failure to pull over). Indeed, the jury could have rationally considered as many as three
of the stop sign violations in determining that defendant willfully failed or refused to obey the
signal to bring his vehicle to a stop, which would have still left two more stop sign violations in
support of the fourth proposition which rendered the offense aggravated. In any event, the
existence of the aggravating factor of two or more traffic violations was certainly submitted to the
jury, which found that it was proved beyond a reasonable doubt.
¶ 30 Defendant also contends that willfulness was not proved beyond a reasonable doubt,
because “he did, by his own actions, bring the vehicle to a stop pursuant to the officer’s signal”
and did not thereafter attempt to escape from the police. This argument ignores the factual context
of the eventual stop—i.e., everything that happened before. By the time that defendant brought
his vehicle to a halt, the offense of aggravated fleeing or attempting to elude was complete, and
had been for some time. He did not undo the offense by choosing not to perpetuate it any further.
Defendant’s construction of the statute would undermine its purposes and invite absurdity. After
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all, the prohibition of fleeing and eluding serves in part to encourage prompt compliance with law
enforcement and avoid the needless delay and potential danger that result from resistance to
commands to stop. To hold that a defendant does not commit fleeing and eluding if he gives the
pursuing officer a reasonable chance to catch up with him later would not comport with these
goals.
¶ 31 Accordingly, we conclude that a rational trier of fact could have found defendant guilty
beyond a reasonable doubt of aggravated fleeing or attempting to elude.
¶ 32 We turn next to defendant’s second contention on appeal: that he was not proved guilty
beyond a reasonable doubt of OUMV, because the State did not prove that the Chevy Malibu was
not covered by a liability insurance policy. See 625 ILCS 5/3-707 (West 2018). Defendant
contends that Hight’s testimony that he neither found nor was provided with proof that the car was
insured was legally insufficient to prove the second element beyond a reasonable doubt. We agree.
¶ 33 In People v. Merritt, 318 Ill. App. 3d 115 (2001), the defendant drove a vehicle that neither
he nor his passenger owned. A police officer stopped the vehicle and searched it. He cited the
defendant for OUMV. At the defendant’s trial, the officer testified that his basis for the citation
was that “ ‘[t]here was no evidence that the vehicle was insured. There was no insurance card
presented to me at the time of this traffic stop.’ ” Id. at 116-117. The jury convicted the defendant
of OUMV.
¶ 34 The appellate court reversed the conviction. It noted that, although the failure to comply
with an officer’s request for insurance deems a person to be operating without insurance (see 625
ILCS 5/3-707(b) (West 1996)), there was no evidence that the officer had asked anyone to produce
an insurance card. Merritt, 318 Ill. App. 3d at 117. The mere lack of affirmative proof that the
vehicle was insured did not prove beyond a reasonable doubt that it was uninsured. Id.
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¶ 35 Merritt is directly on point and disposes of this case. Hight testified only that he did not
find, and was not provided, proof that the Malibu was insured. He did not testify that he ever
requested any such proof. Defendant was not required to volunteer it. People v. Davis, 2019 IL
App (1st) 181492, ¶ 16-17 (“The plain language [of the statue], in accordance with common sense,
sets up an expectation that an officer will ask for proof of insurance and the driver will provide
it”). Moreover, as in Merritt, there was no evidence that defendant or his passenger owned the
vehicle; the registration did not come back to defendant. Therefore, we reverse defendant’s
conviction of OUMV and vacate the $300 fine.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm in part and reverse in part the judgment of the circuit court
of Kane County.
¶ 38 Affirmed in part; reversed in part.
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