People v. Morgan

2023 IL App (4th) 220544-U

Opinion

2023 IL App (4th) 220544-U NOTICE FILED This Order was filed under May 23, 2023 Supreme Court Rule 23 and is NO. 4-22-0544 Carla Bender not precedent except in the th limited circumstances allowed 4 District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County TYRICE L. MORGAN, ) No. 20CF1197 Defendant-Appellant. ) ) Honorable ) Randy Wilt, ) Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Justice Harris concurred in the judgment. Justice Turner specially concurred.

ORDER

¶1 Held: The appellate court affirmed defendant’s convictions of resisting a peace officer with injury where the injuries were proximately caused by defendant’s acts and the statute did not require great bodily harm.

¶2 Defendant, Tyrice L. Morgan, appeals his convictions on two counts of resisting a

peace officer causing injury (720 ILCS 5/31-1(a-7) (West 2020)) following a bench trial.

Defendant argues that (1) the State failed to show his detention by the police was an authorized

act, (2) defendant’s resisting was not the proximate cause of the officers’ injuries, and (3) the

officers’ injuries were too de minimis to sustain the guilty verdicts. For the following reasons, we

affirm.

¶3 I. BACKGROUND ¶4 A Winnebago County grand jury indicted defendant for the following offenses:

being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2020)) (count I), unlawful

possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2020)) (count II), resisting a peace

officer causing injury (counts III-V), and possession of a controlled substance (720 ILCS

570/402(c) (West 2020)) (count VI). Counts III and IV charged two different injuries sustained by

the same police officer. The State dismissed count VI before trial. Following trial, the trial court

acquitted defendant on counts I and II but convicted him on counts III, IV, and V. These charges

arose from defendant’s attendance at a party in Rockford in the early morning hours of June 19,

2020. Two Rockford police officers, Michael Edwards and Kaera Watson, were injured during a

foot pursuit after defendant fled from the officers while they attempted to handcuff him.

Defendant’s trial consisted of the following evidence. We include only those facts pertinent to this

appeal.

¶5 A. The State’s Case

¶6 1. Officer Michael Edwards

¶7 Officer Michael Edwards testified on direct examination as follows. In June 2020,

Edwards was assigned to the Specialized Community Oriented Police Enforcement Team

(SCOPE), focusing on “high crime” areas of the city. At 1 a.m. on June 19, 2020, Edwards

responded to a sergeant’s request for additional units at 1416 Fourth Avenue, where a “large” party

was in progress. After Edwards arrived at that location, someone said there was a “gun.” Edwards

did not recall whether he was told where the gun was found. Edwards saw Officers Jhordynne

Alexander and Kaera Watson speaking with defendant. According to Edwards, Alexander and

Watson were trying to place defendant’s hands behind his back. Edwards assisted those officers in

attempting to “secure” defendant by “grabbing hold” of him. According to Edwards, defendant

-2- “took off running” through neighboring yards. Edwards gave pursuit, but he fell in a driveway and

scraped his forearm. His arm was bleeding. During the pursuit, Edwards also scraped his knees.

According to Edwards, he might have injured his knees when he fell in the driveway, but his knees

could have been injured elsewhere during the pursuit. Edwards testified that after he fell in the

driveway, he continued to pursue defendant as defendant leapt over a chain-link fence and

attempted to climb over a wooden fence. Defendant knocked down the wooden fence when he

attempted to climb over it and fell to the ground. According to Edwards, he tried to handcuff

defendant, but defendant kept his body tense and his hands beneath him on the ground. Edwards

testified that other officers were also “trying to take [defendant] into custody.” According to

Edwards, the officers eventually handcuffed defendant.

¶8 On cross-examination, Edwards testified as follows. Upon being dispatched to the

scene, Edwards was not advised that anyone had committed any crimes. Edwards had no

information about the gun that was found. Edwards testified that he did not see defendant violate

any laws. Edwards said he had no information that defendant was a suspect in any crimes. When

defense counsel asked Edwards if he knew why Watson and Alexander were trying to put

defendant’s hands behind his back, Edwards responded: “I can’t answer that.” Then the following

exchange occurred:

“[DEFENSE COUNSEL]: Did [Watson and Alexander] tell you that

[defendant] had committed any crime prior to them putting their [sic] hands behind

his back?

[EDWARDS]: No. ***

[DEFENSE COUNSEL]: Well, did anybody say anything to [defendant]

as to why they were handcuffing him?

-3- [EDWARDS]: No.”

¶9 Edwards testified that Watson and Alexander both unsuccessfully tried a “leg

sweep,” which was a maneuver designed to fell defendant to the ground. According to Edwards,

defendant “broke away” and started running. According to Edwards, he never saw defendant in

possession of a gun throughout the pursuit and he never saw defendant throw anything, even

though (1) he was the officer who was closest behind defendant during the pursuit, and (2)

defendant lost his pants when he hopped over the chain link fence. Edwards testified that after

defendant finally was handcuffed, officers found marijuana and suspected narcotics on his person.

¶ 10 2. Officer Kaera Watson

¶ 11 On direct examination, Officer Kaera Watson testified as follows. On June 19,

2020, Watson, who was also a member of the SCOPE unit, was dispatched to 1416 Fourth Avenue

because patrol officers had been sent there for a “loud party,” and “additional officers were

requested on scene.” She observed about 30 people standing around with their hands raised in the

air. Watson heard a police sergeant say a gun was found underneath or near one of the vehicles in

the driveway. Watson saw Alexander trying to “detain” defendant, so she assisted her. They were

unable to handcuff defendant because he was pulling away, and then he ran. According to Watson,

defendant was holding his waistband as he ran. Watson pursued him over a chain-link fence into

a neighbor’s yard. According to Watson, she saw defendant fling his left hand out and hit a tree

branch. Then, she testified, she heard “something either hit or fall” where defendant had flung out

his hand. Watson testified she did not see anything in defendant’s left hand. She just heard

“something” fall or make contact on the other side of a fence that was there. Watson testified she

was injured when pursuing defendant over a wooden fence. Watson testified that a nail in the fence

punctured the palm of her hand. Watson also described another puncture wound to her shin and an

-4- elbow scrape. According to Watson, the wooden fence collapsed, sending defendant to the ground.

Watson testified that defendant was “pulling his hands underneath his body,” so she forced his

right hand behind his back because “he still wasn’t complying” with being handcuffed. Watson

testified that, eventually, she and other officers handcuffed defendant.

¶ 12 On cross-examination, Watson testified as follows. A sergeant on the scene ordered

the crowd to raise their hands after the gun was found by a car, but the sergeant was not patting

anyone down for weapons. When Watson first saw defendant, he was on the porch of the residence.

Defense counsel asked Watson: “Do you know why [Alexander] was attempting to handcuff

[defendant]?” Watson answered: “No, I do not.”

¶ 13 3. Officer Bryce Davis

¶ 14 On direct examination, Officer Bryce Davis testified as follows. On June 19, 2020,

Davis, who was another member of the SCOPE unit, and his partner “just showed up” at 1416

Fourth Avenue “to assist” other officers who were there “for a call.” Davis did not say what time

he arrived at that location, but he testified that when he got there, he was advised that “someone

was running from the house.” Davis and his partner then drove around looking for the subject.

When Davis saw defendant, he was already in custody. According to Davis, Watson directed him

to a location near a wooden fence, where Watson said defendant had thrown “something.” Davis

found a loaded handgun and a magazine with live ammunition.

¶ 15 On cross-examination, Davis testified that there were a “fair amount” of people at

the Fourth Avenue address when he arrived there, but none of them were handcuffed.

¶ 16 After the parties stipulated that the handgun Davis found was a “firearm,” the State

rested. The trial court denied defendant’s motion for a directed finding of not guilty.

¶ 17 B. The Defense Case

-5- ¶ 18 Lovely McBride was defendant’s sole witness. She testified as follows. At 1 a.m.

on June 19, 2020, she was with a group of girls on a sidewalk west of the residence at 1416 Fourth

Avenue. There were 30 or 40 people there, drinking. McBride testified it was like a “block party.”

According to McBride, defendant was in front of the house. When the police cars pulled up

flashing their lights, McBride saw 10 or 15 people, including defendant, run toward the backyard.

¶ 19 C. The Court’s Ruling and Sentence

¶ 20 The trial court found defendant not guilty of being an armed habitual criminal and

unlawful possession of a weapon by a felon (counts I and II). The court found inconsistencies in

the accounts of Edwards and Watson. Specifically, the court noted that Edwards was closest to

defendant and did not see him with a gun (Edwards said defendant lost his pants during the pursuit,

and Edwards did not see a gun on defendant’s person when that happened) or see him throw

anything. The court also found that no physical evidence linked defendant to the gun Davis found

by the fence.

¶ 21 Regarding the State’s evidence relating to resisting a peace officer, the trial court

stated:

“There are certain gaps, questions that have never been answered. We start

with: why did the officers even decide they had the right to approach [defendant]

and detain him? But there’s not a motion to suppress physical evidence or to quash

any type of arrest ***, so presumably, [the police] had a basis to do that.

Even if they didn’t, the moment [defendant] resisted them, then that became

a crime in and of itself, and at that point in time [the police] had the right to arrest

him for resisting a peace officer.”

¶ 22 At sentencing, the trial court stated:

-6- “I still am not sure why the officers, on that particular day, targeted

[defendant] when there was a crowd of a number of people outside. *** I still don’t

know why they targeted [defendant], and the evidence shows he was standing up

by a porch. *** There’s no indication what he was doing, but he ran.”

The court merged the convictions on counts III and IV (both pertaining to Watson) and sentenced

defendant to 30 months’ probation on each conviction, to be served concurrently, 180 days in the

county jail, and a $1000 fine.

¶ 23 This appeal followed.

¶ 24 II. ANALYSIS

¶ 25 Defendant argues that his convictions for resisting a peace officer causing injury

must be reversed because the State failed to prove (1) the police performed an authorized act in

detaining defendant, (2) the officers’ injuries were proximately caused by defendant’s alleged

resisting, and (3) the officers suffered great bodily harm. A person commits the offense of resisting

a peace officer when he or she knowingly resists or obstructs the performance by one known to

the person to be a peace officer. 720 ILCS 5/31-1(a) (West 2020). To establish the offense, the

State must prove the following elements: (1) the defendant knowingly obstructed a peace officer,

(2) the peace officer was performing an authorized act in his or her official capacity, and (3) the

defendant knew the officer was a peace officer. People v. Baskerville, 2012 IL 111056, ¶ 32. A

person who is convicted of resisting a peace officer and whose resistance was the proximate cause

of “injury” to the officer commits a Class 4 felony. 720 ILCS 5/31-1(a-7) (West 2020).

¶ 26 In reviewing the sufficiency of the evidence, our inquiry is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

-7- found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979); Baskerville, 2012 IL 111056, ¶ 31.

¶ 27 A. Performance of an Authorized Act

¶ 28 Counts III, IV, and V of the indictment alleged that Edwards’s and Watson’s

“authorized act” was the “detainment” of defendant. The evidence showed defendant was detained

twice: first, when those officers assisted Alexander in attempting to handcuff defendant on the

porch and, second, after the foot pursuit when the police handcuffed defendant on the ground. The

fourth amendment to the United States Constitution and the Illinois Constitution (U.S. Const.,

amend. IV; Ill. Const. 1970, art. I, § 6) protect people against unreasonable searches and seizures.

People v. Trull, 64 Ill. App. 3d 385, 388 (1978). There are three tiers of warrantless police-citizen

encounters that do not violate the fourth amendment: (1) an arrest supported by probable cause,

(2) a temporary investigative seizure (Terry stop) pursuant to Terry v. Ohio , 392 U.S. 1 (1968),

and (3) consensual encounters. People v. Gherna, 203 Ill. 2d 165, 176-77 (2003). At trial, the State

proffered no evidence or argument as to the reason for Alexander’s detention of defendant on the

porch. The State did not call Alexander as a witness. Rather, the State argued that defendant’s acts

of pulling away from the officers and running constituted resisting a peace officer.

¶ 29 On appeal, the State posits that two distinct episodes justified detaining defendant:

(1) the officers’ initial response to a loud party and (2) Watson’s reasonable suspicion that

defendant threw a gun away during the foot pursuit. The State maintains that each episode is

subject to a separate fourth amendment analysis. By contrast, defendant argues that there was one

continuing episode beginning with his illegal detention on the porch and ending with his being

handcuffed after the foot pursuit. Defendant maintains that his illegal seizure on the porch tainted

everything that happened after that.

-8- ¶ 30 1. The Loud Party as a Reason to Detain Defendant

¶ 31 Watson testified that the police responded to a “loud party” at 1 a.m. The State

infers from this that the police had the right to detain everyone present for violation of local noise

ordinances. However, the State presented no evidence of any excessive noise constituting a

violation of any specific ordinance as, for instance, existed in Town of Normal v. Stelzel, 109 Ill.

App. 3d 836 (1982). In Stelzel, the prosecution proved the defendant was operating a sound

amplifying device in a manner prohibited by a Town of Normal ordinance and others were playing

music that was being sent out through the device. Stelzel, 109 Ill. App. 3d at 837. Even the sound

of drums was amplified. Stelzel, 109 Ill. App. 3d at 839. Neighbors testified that they were

“annoyed” by the loud music. Stelzel, 109 Ill. App. 3d at 839. Here, even if we apply the principle

that “all persons participating in the breach of a municipal ordinance are guilty as principals”

(internal quotation marks omitted) (Stelzel, 109 Ill. App. 3d at 838)), there was no evidence that

defendant was making noise. Edwards observed defendant speaking with Alexander and Watson

on the porch. Watson first observed defendant when Alexander was trying to pull his hands behand

his back. Watson did not know why Alexander was detaining defendant.

¶ 32 Watson testified that the police found a gun under or near a vehicle in the driveway,

but the State does not argue that incident justified defendant’s detention on the porch. Indeed, the

State cannot justify defendant’s detention based on this gun. There was no evidence that defendant

either knew about the gun or that the gun was in an area under his immediate and exclusive control.

See People v. Anderson, 2018 IL App (4th) 160037, ¶ 29 (stating constructive possession of a gun

consists of proof the defendant knew of the gun, and it was in his immediate and exclusive control).

In People v. Sams, 2013 IL App (1st) 121431, ¶ 13, evidence that the defendant walked out of a

house where a gun was later found by the police was insufficient to establish constructive

-9- possession. “[M]ere proximity” to a gun is also insufficient to prove actual possession. Anderson,

2018 IL App (4th) 160037, ¶ 31. Here, there was no evidence of the distance between where the

gun was found in the driveway and where defendant was standing on the porch. Nor did the State

show when defendant was detained in relation to when the gun was found. Similarly, no evidence

connected defendant to the vehicle near which the gun was found.

¶ 33 The trial court noted the “gap” in evidence, meaning the lack of any proof as to the

reason for detaining defendant on the porch. Nevertheless, the court stated that “presumably” the

police had the right to detain the defendant because he did not move to suppress evidence or quash

his arrest. As the appellate court noted in another context, “[t]he presumption of innocence

guarantees that the accused has no obligation to come forward with any evidence concerning the

proof, or lack thereof, of any of the elements of the charged offense.” People v. Purcell, 325 Ill.

App. 3d 551, 557 (2001). We add that “[i]t is a firmly settled proposition of law that the burden of

proof never shifts to the defendant no matter what his defense may be.” People v. Williams, 28 Ill.

App. 3d 67, 70 (1975). We also caution that the State cannot “leave to conjecture or assumption

essential elements of the crime.” People v. Laubscher, 183 Ill. 2d 330, 336 (1998). Thus, due to

the trial court’s unfortunate choice of words, it appears as though the court might have exercised

a presumption against defendant and shifted the burden of proof. Nevertheless, as we shall see, the

court based its guilty verdicts on the evidence of defendant’s flight rather than impermissible

assumptions.

¶ 34 Defendant contends that the lack of evidence as to why the police were attempting

to handcuff him on the porch constituted a lack of evidence that the police were performing an

authorized act. Defendant relies on People v. Gallagher, 2020 IL App (1st) 150354, and People v.

Jones, 2015 IL App (2d) 130387.

- 10 - ¶ 35 In Gallagher, the court broadly stated that “[i]f the officer’s conduct violated the

fourth amendment, it is unauthorized, and the defendant, therefore, is not in violation of [the

resisting statute].” Gallagher, 2020 IL App (1st) 150354, ¶ 29. In opining thusly, the court relied

on Jones. Gallagher, 2020 IL App (1st) 150354, ¶ 29. However, the First District misread Jones

on this point. In Jones, the Second District acknowledged that where the authorized act is an arrest,

the inquiry ends, because a defendant is not privileged to resist even an unlawful arrest. Jones,

2015 IL App (2d) 130387, ¶ 11. Indeed, our supreme court in City of Champaign v. Torres, 214

Ill. 2d 234, 242 (2005), said that an arrest made by a peace officer is an “ ‘authorized act’ even if

the arrest is unlawful,” quoting People v. Locken, 59 Ill. 2d 459, 465 (1974). However, where a

peace officer is not undertaking an arrest, the Locken rule is inapplicable. Torres, 214 Ill. 2d at

243-44. Thus, in Gallagher, the court held that the defendant was not guilty of resisting a peace

officer where the officer lacked a reasonable, articulable suspicion warranting a Terry stop.

Gallagher, 2020 IL App (1st) 150354, ¶ 42.

¶ 36 At trial, the State argued that the officers’ attempt to handcuff defendant on the

porch was an arrest. On appeal, however, in arguing that the loud party gave the officers reasonable

grounds to “detain” defendant, the State argues that the police effectuated a Terry stop. In Terry,

the Supreme Court of the United States provided an exception to the warrant and probable cause

requirements by allowing an officer to conduct a brief, investigatory stop of a person the officer

believes has committed, or is about to commit, a crime. People v. Timmsen, 2016 IL 118181, ¶ 9;

People v. Walker, 2013 IL App (4th) 120118, ¶ 33. A Terry stop must be justified at its inception,

and the officer must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant the intrusion. People v. Colyar, 2013 IL

111835, ¶ 40. A “reasonable suspicion” is “considerably” less than that necessary for probable

- 11 - cause. People v. Dunmire, 2019 IL App (4th) 190316, ¶ 41. Handcuffing a defendant does not

de facto convert a Terry stop into an arrest. Colyar, 2013 IL 111835, ¶ 46. For instance,

handcuffing during a Terry stop was proper where the officers were outnumbered at dusk and they

reasonably suspected that one or more of the persons detained in a car had access to a gun. People

v. Richardson, 2017 IL App (1st) 130203-B, ¶ 29. Here, it was 1 a.m. in a high crime area where

30 or 40 people were milling about and a gun had been found. Under these circumstances,

Alexander’s attempt to handcuff defendant, joined by Watson and Edwards, could have occurred

during a Terry stop.

¶ 37 Importantly, the indictment charged that the officers’ authorized act was the

“detainment” of defendant, rather than his arrest. “Detention” connotes the lower standard of

reasonable suspicion, rather than the more exacting standard of probable cause. People v. Horton,

2019 IL App (1st) 142019-B, ¶ 65. Generally, when we speak of the police’s right to detain an

individual, we speak of whether the officer has “reasonable suspicion”—as opposed to probable

cause—to justify the detention. See People v. Sadeq, 2018 IL App (4th) 160105, ¶ 79 (stating

detention must be supported by reasonable suspicion). Due process limits us to the conduct alleged

in the indictment. People v. Wrencher, 2015 IL App (4th) 130522, ¶ 35. Thus, we agree that the

attempt to handcuff defendant on the porch was a Terry stop rather than an arrest. We also agree

with defendant that the State presented no evidence justifying the Terry stop. However, that does

not end our inquiry, because the State argues that Watson later reasonably suspected that defendant

discarded a gun during the foot pursuit, justifying defendant’s detention after the pursuit ended.

¶ 38 2. The Police Pursuit and Detention of Defendant

¶ 39 The facts are not in dispute. Defendant ran away from the officers during their

attempt to handcuff him on the porch. Edwards, Watson, and other officers pursued defendant on

- 12 - foot. Watson testified that defendant was holding his waistband as he ran and then threw an object

during the chase. Davis recovered a gun and a magazine from the location where defendant threw

the object. After defendant broke a wooden fence and fell to the ground, the officers eventually

handcuffed him.

¶ 40 a. Defendant’s Flight as Probable Cause

¶ 41 The first issue is whether defendant’s flight gave the police probable cause to arrest

him for resisting a peace officer. The trial court found that even if detaining defendant on the porch

was unlawful, when defendant ran from the police, he committed the crime of resisting a peace

officer.

¶ 42 When an officer approaches a person without reasonable suspicion or probable

cause, that person can “ignore the police and go about his business.” (Internal quotation marks

omitted.) People v. Eyler, 2019 IL App (4th) 170064, ¶ 29. A mere refusal to cooperate, without

more, does not justify detention or seizure. Eyler, 2019 IL App (4th) 170064, ¶ 29.

¶ 43 However, in Eyler, 2019 IL App (4th) 170064, ¶ 29, we noted the distinction

between a person’s right to ignore a police officer’s unreasonable intrusion and “unprovoked

flight,” (internal quotation marks omitted) which excites a reasonable suspicion of wrongdoing.

The State relies on People v. Thomas, 198 Ill. 2d 103 (2001). In Thomas, our supreme court held

that the defendant’s fleeing on a bicycle when an officer unlawfully attempted to stop him for a

“field interview” converted the officer’s unfounded suspicion into one that justified detaining the

defendant. Thomas, 198 Ill. 2d at 106-13. Importantly, in Thomas, there was no unlawful detention

before the defendant fled. Thomas, 198 Ill. 2d at 113. Although the officer blocked the defendant’s

forward movement with his squad car, the defendant zigzagged onto another route to avoid the

confrontation. Thomas, 198 Ill. 2d at 106.

- 13 - ¶ 44 Conversely, when a defendant flees from an unlawful Terry stop, the basis for the

stop must exist prior thereto and cannot arise after the fact. People v. Estrada, 394 Ill. App. 3d

611, 619 (2009). This is so because the officer’s actions are not “justified at the inception” and the

person running away is not resisting or obstructing an authorized act of the peace officer. (Internal

quotation marks omitted.) People v. Moore, 286 Ill. App. 3d 649, 654 (1997).

¶ 45 Defendant relies on People v. Shipp, 2015 IL App (2d) 130587, which was an

appeal from the summary dismissal of a postconviction petition. In Shipp, the police suspected the

defendant was involved in a fight. Shipp, 2015 IL App (2d) 130587, ¶ 6. When the officer saw the

defendant, he was doing nothing unusual and did not appear to have been fighting. Shipp, 2015 IL

App (2d) 130587, ¶ 5. The officer effectuated a Terry stop when he exited his squad car, ordered

the defendant to stop, and then prevented the defendant from going on his way. Shipp, 2015 IL

App (2d) 130587, ¶ 31. The defendant refused the officer’s request to perform a pat down search.

Shipp, 2015 IL App (2d) 130587, ¶ 11. The officer and his partner then grabbed the defendant’s

arm, but the defendant fled. Shipp, 2015 IL App (2d) 130587, ¶ 11. The officers chased the

defendant and eventually caught and handcuffed him. Shipp, 2015 IL App (2d) 130587, ¶ 11. A

search of the defendant’s person yielded cocaine, cannabis, and cash. Shipp, 2015 IL App (2d)

130587, ¶ 11. The Shipp court held that the defendant stated the gist of a constitutional claim

because he “lawfully” fled from an illegal Terry stop. Shipp, 2015 IL App (2d) 130587, ¶ 62.

¶ 46 Defendant also relies on People v. Slaymaker, 2015 IL App (2d) 130528. In

Slaymaker, the court reversed the defendant’s conviction of resisting a peace officer where the

officer was not justified in frisking the defendant as part of his community caretaking function.

Slaymaker, 2015 IL App (2d) 130528, ¶ 21.

- 14 - ¶ 47 Our case is more like Shipp than Thomas. In Thomas, the defendant fled—

unprovoked—at the sight of the police before a stop occurred. Thomas, 198 Ill. 2d at 112. Here,

the unlawful Terry stop occurred before defendant ran. A seizure occurs when an officer restrains

a person’s liberty, making the person believe he is not free to leave. People v. Thornton, 2020 IL

App (1st) 170753, ¶ 26. Alexander restrained defendant’s liberty by attempting to pull his hands

behind his back. Defendant’s liberty was further restrained when Edwards grabbed one of his arms

and then Watson and Alexander attempted to bring defendant to the ground with a leg sweep.

Consequently, we determine that defendant’s flight was from an unlawful Terry stop and did not

give the officers probable cause to arrest him for the offense of resisting a peace officer.

¶ 48 b. Defendant’s Act of Throwing Away a Gun as Reasonable Suspicion

¶ 49 The next issue is whether defendant’s throwing away a gun during the foot pursuit

gave the officers reasonable suspicion—new grounds—to detain defendant. For purposes of this

discussion, defendant does not dispute that he threw away the gun and magazine Davis recovered

from the fence area. Rather, defendant argues, without citing authority, that the officers were

pursuing him without lawful authority and that his detention after breaking down the fence was

the tainted fruit of the unlawful Terry stop on the porch.

¶ 50 Under the “tainted fruit” doctrine, a fourth amendment violation is the “poisonous

tree,” and any evidence found by exploiting that violation is the “fruit of the poisonous tree.”

(Internal quotation marks omitted.) People v. Henderson, 2013 IL 114040, ¶ 33. In People v.

Brownlee, 186 Ill. 2d 501, 519 (1999), our supreme court noted that the tainted fruit doctrine

applies to Terry situations. However, the example the court gave was that where an officer’s

confinement of a person goes beyond the limited restraint of a Terry stop, a subsequent consent to

search may be tainted by the illegal confinement. Brownlee, 186 Ill. 2d at 519.

- 15 - ¶ 51 Here, the tainted fruit doctrine does not apply because defendant’s flight ended the

unlawful seizure. See Henderson, 2013 IL 114040, ¶ 37 (holding that the defendant’s flight from

an illegal traffic stop ended his seizure, and anything happening after that was no longer tied to the

initial stop.) Although the issue in Henderson was whether the defendant’s trial counsel was

ineffective for failing to file a motion to suppress evidence, resolution of that issue depended in

part on whether the gun the defendant discarded after he fled was the fruit of an illegal seizure.

Henderson, 2013 IL 114040, ¶ 16. In holding that the gun was not the fruit of an illegal seizure,

the court reasoned that the defendant’s flight “interrupted the chain of causation between the illegal

seizure and the discovery of the gun.” Henderson, 2013 IL 114040, ¶ 47.

¶ 52 Our decision in People v. Keys, 375 Ill. App. 3d 459 (2007), is also instructive on

the issue of whether defendant’s flight broke any causal connection between the illegal Terry stop

on the porch and his eventual detention after he fell through the wooden fence. In Keys, the

defendant appealed an order denying his motion to suppress heroin, the recovery of which the

defendant contended was the fruit of his illegal seizure. Keys, 375 Ill. App. 3d at 460. In Keys, the

defendant “broke free and ran” from an officer during an arguably unlawful seizure. Keys, 375 Ill.

App. 3d at 461, 464. During an ensuing chase, the officer lost sight of the defendant briefly before

apprehending him. Keys, 375 Ill. App. 3d at 461. When the officer went back and looked in the

area where he lost sight of the defendant, he found three bags of heroin. Keys, 375 Ill. App. 3d

461. We held that the drugs were admissible in evidence because they were not found during the

initial, unlawful seizure of the defendant, but were found because the defendant abandoned them

after “ending the initial seizure by escaping from the police.” Keys, 375 Ill. App. 3d at 464. In so

holding, we adopted the reasoning of the Supreme Court of the United States in California v.

Hodari D., 499 U.S. 621, 625 (1991), where the court stated that “[a] seizure is a single act, and

- 16 - not a continuous fact.” (Internal quotation marks omitted.) Keys, 375 Ill. App. 3d at 462. The

Supreme Court opined that where a defendant breaks away and then discards contraband, it would

“hardly be realistic” to say that the contraband was discovered during the course of the seizure.

Hodari D., 499 U.S. at 625. In other words, the Supreme Court expressed that there is not a

“continuing arrest during the period of fugitivity.” (Emphasis omitted.) Hodari D., 499 U.S. at

625. Consequently, we hold that the police in our case did not extend the unlawful seizure by

pursuing defendant.

¶ 53 The State argues that the officers gained a reasonable suspicion that defendant

threw away a gun during the foot pursuit, which justified defendant’s detention after the pursuit

ended. We agree. In People v. Bynum, 257 Ill. App. 3d 502, 508 (1994), the trial court held that

the police had a reasonable suspicion where the defendant, upon seeing the police, threw a bag

into a flower bed and attempted to leave the scene. Here, Watson testified she saw defendant

holding his waistband during his flight, and then she saw him fling out his arm. Watson said she

heard something either fall or make contact on the other side of a fence where defendant had flung

out his arm. The evidence showed that this was a high crime area where one gun had already been

found. Accordingly, we hold that the detention of defendant at the end of the pursuit was an

authorized act for purposes of the resisting statute.

¶ 54 B. Proximate Cause of the Officers’ Injuries

¶ 55 Defendant contends that even if we hold that he resisted an authorized act of the

officers, his resisting was not the proximate cause of the officers’ injuries. Defendant was charged

with felony resisting the performance of Edwards and Watson pursuant to section 31-1(a-7) of the

Criminal Code of 2012 (720 ILCS 5/31-1(a-7) (West 2020)). To sustain a conviction under section

31-1(a-7), the State must prove beyond a reasonable doubt that the defendant knowingly resisted

- 17 - or obstructed a peace officer in the performance of an authorized act and his or her violation

“proximately caused” an “injury” to the officer. People v. Jenkins, 2016 IL App (1st) 133656, ¶ 27.

For purposes of the felony resisting statute, “proximate cause” means: “a cause which, in the

natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause,

nor the last nor nearest cause. It is sufficient if it combines with another cause resulting in the

injury.” (Internal quotation marks omitted.) People v. Wilson, 404 Ill. App. 3d 244, 248 (2010)

(holding that the definition of proximate cause found in Illinois Pattern Jury Instructions, Civil,

No. 15.01 (Supp. 2009) applies to the felony resisting statute.) In Wilson, the court held that the

meaning of “proximate cause” is the same whether one “speaks of ‘the’ proximate cause or ‘a’

proximate cause.” Wilson, 404 Ill. App. 3d at 249. The court thus declined to limit “proximate

cause” to meaning “sole” proximate cause. Wilson, 404 Ill. App. 3d at 250.

¶ 56 In Wilson, the court also applied the analysis of proximate cause found in civil cases

to the felony resisting statute. Wilson, 404 Ill. App. 3d at 249-50. The term “proximate cause”

describes two distinct requirements: (1) cause in fact and (2) legal cause. Wilson, 404 Ill. App. 3d

at 249. “Legal cause” is “essentially a question of foreseeability.” (Internal quotation marks

omitted.) Wilson, 404 Ill. App. 3d at 249. The relevant inquiry is “whether the injury is of a type

that a reasonable person would see as a likely result of his or her conduct.” (Internal quotation

marks omitted.) Wilson, 404 Ill. App. 3d at 249.

¶ 57 1. Cause-in-Fact

¶ 58 Defendant concedes that his violation was the cause-in-fact of the officers’ injuries.

However, his concession is based on his assumption that the resisting occurred when he fled from

the officers on the porch. As discussed, the resisting occurred after defendant fell through the

wooden fence and struggled against being handcuffed. Nonetheless, we hold that defendant’s

- 18 - conduct was the cause-in-fact of the officers’ injuries. In considering cause-in-fact, courts use

either the “but for” test or the “substantial factor” test. Turcios v. The DeBruler Co., 2015 IL

117962, ¶ 23. Under the “substantial factor” test, a defendant’s conduct is the cause of an event if

it was a “material element and a substantial factor” in bringing about the event. (Internal quotation

marks omitted.) Turcios, 2015 IL 117962, ¶ 23. Here, Watson testified that defendant was “holding

his waistband initially” when the officers began their pursuit, which lasted only long enough for

defendant to hop over a chain link fence and crash through the wooden fence. Watson testified that

the pursuing officers then “all kind of fell through” the wooden fence. During the pursuit, Edwards

and Watson were injured. We believe that defendant’s resisting was in tandem with the pursuit,

such that the resisting was a material element and a substantial factor in causing the injuries.

¶ 59 2. Legal Cause

¶ 60 Defendant maintains that his resisting was not the legal cause of the officers’

injuries. Specifically, defendant argues that if he had foreseen the wooden fence collapsing, which

caused injury to Watson, he would not have attempted to scale it. “Legal cause” is “essentially a

question of foreseeability.” (Internal quotation marks omitted.) People v. Cervantes, 408 Ill. App.

3d 906, 909 (2011). In Cervantes, the court noted, citing First Springfield Bank & Trust v. Galman,

188 Ill. 2d 252, 257-58 (1999), that the analogies between criminal and civil cases in which persons

are injured or killed is so close that the principle of proximate cause applies to both kinds of cases.

Cervantes, 408 Ill. App. 3d at 909.

¶ 61 There can be more than one legal proximate cause of a plaintiff’s injuries. Rivera

v. Garcia, 401 Ill. App. 3d 602, 611 (2010). We reject defendant’s argument for two reasons:

(1) when defendant ran from the officers holding his waistband, it was reasonably foreseeable that

they would pursue, given that they were in a high crime area and a gun had already been discovered

- 19 - (see Cervantes, 408 Ill. App. 3d at 909 (stating it was reasonably foreseeable that pursuing officers

would chase the defendant on foot when he chose to run from them)) and (2) even if the driveway

where Edwards fell was slippery due to some condition unrelated to the pursuit, or the wooden

fence was too poorly constructed to hold defendant’s weight, defendant should have foreseen that

the officers could be injured by falling. See Cervantes, 408 Ill. App. 3d at 909 (stating that the

defendant should have foreseen a pursuing officer might be injured by falling while climbing a

fence during a pursuit.)

¶ 62 In Cervantes, the court held that the State need not prove that the defendant’s acts

were the “sole and immediate” cause of injury, but it need show only that the defendant’s acts

contributed to the injury. Cervantes, 408 Ill. App. 3d at 910. In so holding, the court analogized

the proximate-cause requirement of the felony resisting statute to that required to prove felony

murder. Cervantes, 408 Ill. App. 3d at 910. In the felony-murder context, the State must show that

the death did not result from a source “unconnected with or independent of” the defendant’s acts.

People v. Jones, 376 Ill. App. 3d 372, 387 (2007). Unless there was a supervening cause, a

contributing cause of a victim’s death is presumed also to be a legal cause of death. People v.

Nelson, 2020 IL App (1st) 151960, ¶ 62. Thus, in People v. Sanchez, 2022 IL App (4th) 210429-

U, ¶ 45, we held that the defendant’s act of resisting after being taken to the ground contributed to

one of the officers’ injuries, despite the lack of evidence of when during the struggle to take the

defendant to the ground the injuries were inflicted. We adopt the reasoning we employed in

Sanchez, 2022 IL App (4th) 210429-U, ¶ 45, where we held that the officer was injured during the

“process” of restraining the defendant. Here, because the pursuit and the struggle to handcuff

defendant on the ground occurred in tandem, the pursuit, during which the officers were injured,

was part of the process of restraining defendant.

- 20 - ¶ 63 Defendant relies on People v. Hudson, 222 Ill. 2d 392 (2006). However, that case

involved the sufficiency of the jury instruction on proximate cause. Hudson, 222 Ill. 2d at 395.

Contrary to defendant’s assertion, it is not necessary that defendant should have foreseen the

precise injury resulting from his act. Ney v. Yellow Cab Co., 2 Ill. 2d 74, 79 (1954). Nor is it

necessary to expect the exact method by which the injury occurred. Blue v. St. Clair Country Club,

7 Ill. 2d 359, 364 (1955). Here, defendant chose to flee through yards at 1 a.m. in a residential

neighborhood. Consequently, we determine that it was foreseeable to a reasonable person that the

pursuing officers would encounter obstructions, such as driveways and fences, that could cause

falls and injuries.

¶ 64 C. The Nature of the Officers’ Injuries

¶ 65 Defendant contends that Watson’s and Edwards’s injuries were too de minimis to

satisfy the statute. Photographs in evidence depicted the officers’ injuries. Edwards’s left forearm

was scraped up to the elbow and covered in blood. Other photographs depicted scrapes on his

knees that broke the skin. Photographs depicted a circular, red, penetrating wound on Watson’s

left palm and discernible bruises on her arm and leg. Defendant cites legislative history in which

a senator opined that “great bodily harm” would be required. However, we resort to aids of

construction only where a statute is ambiguous. Board of Education of Springfield School District

No. 186 v. Attorney General, 2017 IL 120343, ¶ 25. Here, defendant does not argue that the statute

is ambiguous.

¶ 66 The statute provides that the defendant’s violation must be the proximate cause of

“injury” to the officer. 720 ILCS 5/31-1(a-7) (West 2020). The legislature did not define “injury.”

Therefore, we assume the legislature intended the term to have its ordinary and popularly

understood meaning. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 8 (2009). “Injury” is defined as

- 21 - “hurt, damage, or loss sustained.” Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/injury (last visited May 4, 2023) [https://perma.cc/2ZPE-WF78]. “Hurt”

is a “wound.” Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/hurt (last visited May 4, 2023) [https://perma.cc/4Z8G-YN72]. That

definition certainly includes the bloody scrape, puncture, and bruises sustained by Edwards and

Watson.

¶ 67 Additionally, the legislature did not require that the violation cause great bodily

harm, as it has done in other contexts. For instance, aggravated battery occurs where there is “great

bodily harm.” 720 ILCS 5/12-3.05(a)(1) (West 2020). “[G]reat bodily harm” requires “proof of an

injury of a greater and more serious nature than a simple battery.” (Internal quotation marks

omitted.) People v. Mandarino, 2013 IL App (1st) 111772, ¶ 63. An elementary rule of statutory

construction says that when the legislature uses certain words in one instance and different words

in another, it intends a different meaning. In re Marriage of Paris, 2020 IL App (1st) 181116, ¶ 38.

Consequently, we do not equate “injury” for purposes of the felony resisting statute with “great

bodily harm.” Had the legislature intended to require great bodily harm, it could have said so.

Accordingly, based on this record, we hold that any rational trier of fact could have found all of

the elements of resisting a peace officer causing injury.

¶ 68 III. CONCLUSION

¶ 69 For the reasons stated, we affirm the trial court’s judgment.

¶ 70 Affirmed.

¶ 71 JUSTICE TURNER, specially concurring:

- 22 - ¶ 72 While I agree with the majority we should affirm the trial court’s judgment

convicting defendant of felony resisting a peace officer, I write separately because my rationale

for doing so differs in part from the majority’s.

¶ 73 As the majority notes, “[a]t trial, the State argued that the officers’ attempt to

handcuff defendant on the porch was an arrest.” Supra ¶ 36. The evidence is uncontroverted three

police officers were attempting to handcuff defendant while he was on the porch and two of the

officers were additionally using a maneuver designed to “sweep” defendant off of his feet. Thus,

the evidence supports a finding the officers were attempting to place defendant under arrest, and

the trial court, without so specifying, clearly agreed with the State’s argument by finding “ ‘the

moment [defendant] resisted them, then that became a crime in and of itself.’ ” Supra ¶ 21. As

noted by the majority, our supreme court in Torres has held an arrest is an authorized act even if

the arrest itself is unlawful. Supra ¶ 35. More pointedly, a defendant is not permitted to resist an

unlawful arrest. Jones, 2015 IL App (2d) 130387, ¶ 11.

¶ 74 Given the foregoing, the trial court, as the trier of fact, properly found defendant

guilty of the crime of resisting a peace officer beyond a reasonable doubt based on defendant’s

initial encounter with and flight from the officers. Moreover, because I agree with the majority’s

analyses concerning the proximate cause and nature of the officers’ injuries, I agree the Class A

misdemeanor resisting offenses were correctly elevated to class 4 felonies. See supra ¶¶ 54-67.

- 23 -