People v. Hilgenberg, 2-90-0389

Citation585 N.E.2d 180,165 Ill.Dec. 784,223 Ill.App.3d 286
Decision Date31 December 1991
Docket NumberNo. 2-90-0389,2-90-0389
Parties, 165 Ill.Dec. 784 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Teresa A. HILGENBERG et al., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Roger T. Russell, Peggy D. Gerkin, State's Attys., Belvidere, William L. Browers, Deputy Director, Cynthia N. Schneider, State's Attys. Appellate Prosecutors, for People.

G. Joseph Weller, Deputy Defender, David W. Devinger, Office of State Appellate Defender, Elgin, for Teresa A. Hilgenberg et al.

Justice McLAREN delivered the opinion of the court:

The 36 above-named defendants were charged individually, by identical complaints with the offense of obstructing a peace officer, a Class A misdemeanor (Ill.Rev.Stat.1989, ch. 38, par. 31-1). The State timely appeals the trial court's dismissal of the complaints for failure to state an offense, and, upon the State's motion, this court allowed the 36 separate trial court cases to be docketed as one appeal in this court. The State contends that the trial court erred in dismissing the criminal complaints as legally insufficient where the decision was based on extrinsic facts disclosed by the parties and the court's consideration was not limited to the matters stated on the face of the complaints. We affirm.

The complaints against each of the defendants specifically alleged in pertinent part that, on September 22, 1989, that each defendant:

"knowingly obstructed the performance of Sheriff Duane Wirth of an authorized act within his official capacity, being the investigation of a reported complaint of Unlawful consumption of alcoholic beverage and Disorderly conduct, knowing Duane Wirth to be a peace officer engaged in the execution of his official duties, in that he [or she] refused to open the door or permit the entry of Sheriff Duane Wirth at 2837 Be-Ver-Vue Road, Belvidere, Boone County, Illinois, in violation of Chapter 38; Section 31-1, Illinois Revised Statutes."

On November 9, 1989, defendants Carole L. Becker and Tony W. Gray moved to dismiss the complaints contending that they were not authorized by law. In their identical memoranda in support of the motion to dismiss, these defendants argued that the conduct of refusing to open a door did not constitute a physical act of obstructing and that the police officer was not engaged in an authorized act. Conceding that an authorized act may include all arrests, even unlawful ones, defendants noted that an accused is not guilty of resisting an officer if the officer is engaged in making an unlawful search (citing People v. Young (1968), 100 Ill.App.2d 20, 241 N.E.2d 587). Defendants argued that, in the absence of a warrant, exigent circumstances or consent, entry into the home was not an authorized act (citing People v. Swiercz (1982), 104 Ill.App.3d 733, 737, 60 Ill.Dec. 1, 432 N.E.2d 900).

Defendants Rebecca L. Drew, William W. Phillips, and Kimberly K. Pitner filed motions to dismiss on December 1, 1989. The Pitner motion was in the form of a letter that raised essentially the same issues as did Becker and Gray, while the motions of Phillips and Drew included no argument.

A hearing on the motions was held on December 1, 1989. The trial court heard the arguments of the parties, including those of the State, which included the recitation of some of the facts under which the charges were brought. The court observed that the State's argument was self-defeating when it argued that the officers had consent to enter the home but the State also maintained that the refusal of the defendants to open the door constituted the obstruction of an officer. The court also remarked, "There's some constitutional grounds that you argue like the sanctity of a home, the right against unreasonable search and seizure, the whole like that seems to be circumvented by telling someone you've got to open that door when they don't have to." The court thereupon dismissed all of the complaints against the 36 defendants which related to obstruction--even as to those defendants who were not represented by counsel. The State concedes on appeal that if our ruling is adverse to its position, the State would not insist that motions to dismiss be filed by those defendants who have not filed such motions.

The State filed motions to reconsider, and a hearing was held on March 1, 1990. The motions were denied. Interestingly, the State argued, even as it sought to present additional facts to the trial court, that the court should have limited its decision to the facial sufficiency of the complaint. Nevertheless, the State now urges on appeal that the trial court erred in dismissing the complaints based on facts disclosed by the parties rather than merely considering the facial sufficiency of the charging instruments. Since the State took an ambivalent position in the trial court, the State's position on the issue is arguably waived for failure to pursue it below. (See People v. Knop (1990), 199 Ill.App.3d 944, 949, 146 Ill.Dec. 28, 557 N.E.2d 970.) Because this appeal involves substantial rights of the State as well as of the defendants, we will exercise our discretion to review the substantive issues raised by the defendants in the trial court as well as on appeal, particularly where the construction of a statute is concerned and the charges were dismissed (see People v. Oswald (1982), 106 Ill.App.3d 645, 649, 62 Ill.Dec. 397, 435 N.E.2d 1369). This court may affirm the trial court's decision for any reason supported by the record notwithstanding the trial court's reasoning. People v. Stoudt (1990), 198 Ill.App.3d 124, 125, 144 Ill.Dec. 466, 555 N.E.2d 825, appeal denied (1990), 133 Ill.2d 569, 149 Ill.Dec. 333, 561 N.E.2d 703.

Initially, the defendants correctly argue that even if a trial court improperly considers evidentiary facts in weighing a defendant's motion to dismiss his complaint, the consideration of those facts does not validate a complaint that fails to charge an offense. (People v. Fink (1982), 91 Ill.2d 237, 241, 62 Ill.Dec. 935, 437 N.E.2d 623; Stoudt, 198 Ill.App.3d at 125, 144 Ill.Dec. 466, 555 N.E.2d 825.) A complaint which charges resisting or obstructing a peace officer must sufficiently describe the physical acts which constitute the crime. (People v. Fox (1983), 117 Ill.App.3d 1084, 1086, 73 Ill.Dec. 727, 454 N.E.2d 824.) The complaint must set forth sufficient allegations regarding the "authorized" act the officer was performing (Stoudt, 198 Ill.App.3d at 128, 144 Ill.Dec. 466, 555 N.E.2d 825) and sufficient allegations describing what physical act of the defendant constituted resisting or obstructing the peace officer (People v. Leach (1972), 3 Ill.App.3d 389, 394, 279 N.E.2d 450). Where the statutory language does not adequately particularize the offense or may encompass conduct not intended to be punished under the statute, a complaint charged solely in the language of the statute is insufficient. Fox, 117 Ill.App.3d at 1086, 73 Ill.Dec. 727, 454 N.E.2d 824.

The statute in question states: "A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor." Ill.Rev.Stat.1989, ch. 38, par. 31-1.

A violation of this section requires an act of physical resistance. (People v. Pruitt (1988), 166 Ill.App.3d 679, 682, 117 Ill.Dec. 762, 520 N.E.2d 1113.) "[R]esistance" means " 'withstanding the force or effect of' or the 'exertion of oneself to counteract or defeat.' 'Obstruct' means 'to be or come in the way of.' " (Landry v. Daley (N.D.Ill.1968), 280 F.Supp. 938, 959, rev'd on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696, quoted in People v. Raby (1968), 40 Ill.2d 392, 399, 240 N.E.2d 595.) These terms are alike in that they imply some physical act or exertion. They do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties, such as by going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest. (Raby, 40 Ill.2d at 399, 240 N.E.2d 595.) Mere refusal to answer a police officer, in the absence of a physical act, may be deemed tantamount to argument which is not a violation of the statute. See People v. Weathington (1980), 82 Ill.2d 183, 187, 44 Ill.Dec. 496, 411 N.E.2d 862.

In Stoudt, where each defendant " 'refused to remove himself from the 400 block of Lincoln Highway,' " this was held not to be a physical act of resistance since the defendant refrained from any physical action. The court also noted that an allegation of the failure to cooperate with an officer is not necessarily the same as resisting or obstructing an officer. (Stoudt, 198 Ill.App.3d at 127, 144 Ill.Dec. 466, 555 N.E.2d 825.) The court distinguished nonaction from instances where, for example in response to an officer's attempt to escort the defendants, they pushed or struck the officer or fell to the ground or tied themselves to a tree. The Stoudt court went on to hold that the complaint was also insufficient because it did not contain sufficient allegations regarding the authorized act that the officer was performing. Stoudt, 198 Ill.App.3d at 128, 144 Ill.Dec. 466, 555 N.E.2d 825.

Similarly, in the case at bar, the defendants' inaction should not be deemed to be an act of physical resistance where it was merely alleged that the defendants refused to open the door or permit the entry of the sheriff, particularly where there are insufficient allegations to show that defendants were impeding an authorized act of the officer. In its reply brief, the State merely argues, without citation to relevant case law, that Stoudt was wrongly decided and that the statutory provision is meant to encompass...

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