No. 3--02--0397 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

The defendant, David L. Elliott, was convicted of aggravatedbattery and driving while under the influence of alcohol (DUI). 720 ILCS 5/12--4(b)(6); 625 ILCS 5/11--501(a)(2) (West 2000). The trial court sentenced defendant to a term of probation. Defendant appeals, contending that (1) the police officer did nothave authority to stop and arrest him because the officer wasoutside the municipality where he was employed; (2) the Statefailed to prove him guilty of aggravated battery or driving whileunder the influence of alcohol beyond a reasonable doubt; and (3)he was prejudiced by the presence of the State's primary witnessat counsel table throughout the trial. We affirm.

Prior to trial, defendant moved to dismiss all charges,contending the police officer involved in this case did not haveauthority to stop or arrest him because the officer was outsidehis jurisdiction. The trial court denied defendant's motion todismiss. However, defendant has not provided this court with therecord of any hearing on his motion. Therefore, we must rely onthe record of the jury trial in reviewing defendant's claims.

At the jury trial, Marseilles city police officer JeremyGaughan testified he was monitoring the speed of traffic whileparked approximately 50 feet north of the Marseilles city limits. Gaughan observed a vehicle at the intersection of 11th Street andRutland, which is inside the city limits. The vehicle appearedto be traveling at a high rate of speed. Gaughan measured thespeed of the vehicle with his radar device at 50 miles per hourin a 35 mile per hour speed zone.

When the vehicle passed his location, Gaughan followed andactivated his emergency lights. The vehicle proceeded to thedriveway of a nearby private residence where it stopped. Gaughanfollowed the vehicle into the driveway and observed defendantexit the driver's side.

Defendant stumbled as he walked to the rear of the vehicle. Gaughan noticed defendant smelled of alcohol, his speech wasslurred, his eyes were bloodshot and glassy, and he was havingdifficulty maintaining his balance. Gaughan testified thatdefendant failed the horizontal gaze nystagmus field sobrietytest. When defendant refused to perform any other field sobrietytests, Gaughan informed him that he was under arrest.

Defendant stated he could not be arrested because he was onprivate property. After defendant continued to refuse tocooperate, Gaughan informed him that he would be sprayed withpepper spray if he did not place his hands behind his back. Whendefendant continued to assert he could not be arrested, Gaughansprayed him with pepper spray.

Defendant then turned and began walking toward theresidence. Gaughan testified that he attempted to restraindefendant by grabbing his arm. Defendant responded by punchingGaughan on the right side of his face and grabbing Gaughan by theneck. Gaughan struggled with defendant. Eventually, two otherpolice officers arrived and defendant was handcuffed.

Gaughan further testified that defendant kicked him in theface as he was placing defendant in the squad car. Gaughanstated that he had a shoe print and a red mark on his face, andhis neck was red from being choked by defendant. Officer JamesHollenbeck also testified that he observed defendant kick Gaughanas they were placing defendant in the car.

Defendant was transported to the Marseilles PoliceDepartment where he agreed to take a breath test. The breathtest indicated defendant's alcohol concentration was 0.194.

Albert Lukasik testified he was defendant's friend and wasnearby when these events occurred. Lukasik observed Gaughanadminister a field sobriety test. When Gaughan informeddefendant that he was under arrest, defendant stated he had notdone anything wrong. Lukasik testified that Gaughan then lungedforward, hit defendant in the chest with his forearm, kickeddefendant in the legs and groin, head-butted him and sprayed himwith pepper spray. Lukasik testified he fled the area afterobserving this attack.

Defendant testified Gaughan asked him to perform two fieldsobriety tests. Defendant stumbled when he stepped on a rockduring the second test. When Gaughan told defendant that he wasunder arrest, defendant stated that the rocky surface had causedhim to stumble and he was not speeding. Without any provocation,Gaughan then struck defendant in the chest, kicked him in thelegs, kicked him four times in the groin and sprayed him threetimes in the face with pepper spray. Defendant testified he didnot strike, kick, choke or grab Gaughan at any time during thisincident. On cross-examination, defendant admitted he hadconsumed alcohol that night and that the breath test indicatedhis alcohol concentration was 0.194.

Finally, defendant's father, brother and sister-in-lawtestified that they observed the officers place defendant in thesquad car, but did not see defendant kick Gaughan.

The jury found defendant guilty of aggravated battery anddriving while under the influence of alcohol.

Defendant contends Gaughan did not have authority to stop orarrest him because Gaughan was outside the city of Marseilleswhen he clocked defendant's speed with the radar device andstopped him for speeding. Defendant asserts that the supremecourt's decision in People v. Lahr, 147 Ill. 2d 379, 589 N.E.2d539 (1992), is controlling in this case.

In Lahr, a police officer was positioned seven-tenths of amile outside his jurisdiction. The defendant's vehicle was alsooutside the jurisdiction when the officer obtained a radarreading which indicated the defendant was speeding. Our supremecourt interpreted the citizen's arrest statute (Ill. Rev. Stat.1989, ch. 38, par. 107--3), as providing police officers with thesame authority as ordinary citizens in making a warrantlessarrest outside their jurisdiction. Such an arrest will not beupheld when the officer uses the power of his office to obtainevidence not available to private citizens. The court concludedthat the officer's use of the radar gun was an impermissibleassertion of police authority outside his jurisdiction, and thearrest was not a valid citizen's arrest. Lahr, 147 Ill. 2d 379,589 N.E.2d 539.

In so finding, the supreme court distinguished People v.O'Connor, 167 Ill. App. 3d 42, 520 N.E.2d 1081 (1988). InO'Connor, a Palos Park police officer conducted radarsurveillance of a road within his jurisdiction while he wasparked in an unincorporated area outside that city. A speedingviolation and subsequent arrest both occurred within Palos Park. The First District Appellate Court held that the use of the radardid not constitute an impermissible assertion of police authorityoutside the officer's jurisdiction because the officer wasmonitoring a roadway within his jurisdiction. The courtconcluded that the officer reasonably stationed himself justoutside the city boundary in an effort to view the road andpotentially collect evidence of crime within his jurisdiction. O'Connor, 167 Ill. App. 3d 42, 520 N.E.2d 1081.

Our supreme court noted that the radar surveillance inO'Connor occurred within the officer's jurisdiction. Lahr, 147Ill. 2d 379, 589 N.E.2d 539; People v. Stanley, 264 Ill. App. 3d94, 637 N.E.2d 1072 (1994). Therefore, the location of thesuspect was determinative rather than the location where theradar originated. Stanley, 264 Ill. App. 3d 94, 637 N.E.2d 1072(citing Lahr, 147 Ill. 2d 379, 589 N.E.2d 539).

In this case, Officer Gaughan originated the radar fromoutside the city of Marseilles, but he was using the radar tomonitor the speed of traffic within his jurisdiction. Defendantwas inside the city when Gaughan obtained the radar reading whichindicated defendant was speeding. Therefore, the circumstancesin this case are similar to those in O'Connor. Because the areaGaughan was monitoring was within his jurisdiction, we concludethat the use of the radar was not an impermissible assertion ofpolice authority outside Gaughan's jurisdiction. Gaughan wasreasonably acting in his official capacity as a police officer inmonitoring traffic within his jurisdiction from his position justoutside the city.

After obtaining the radar reading which indicated thatdefendant was exceeding the speed limit in Marseilles, Gaughanwas justified in stopping defendant outside his jurisdiction. See People v. Leinweber, 234 Ill. App. 3d 748, 600 N.E.2d 901(1992) (an officer may make an investigatory stop outside hisjurisdiction when he has reasonable suspicion that the suspectcommitted an offense within his jurisdiction). Additionally,Gaughan made a lawful arrest after observing indications thatdefendant was intoxicated. See People v. Carraher, 199 Ill. App.3d 965, 557 N.E.2d 975 (1990) (following a lawful stop, anofficer may arrest a motorist for driving under the influence ofalcohol upon observing indicia of intoxication). Therefore, weconclude the stop and arrest were lawful.

Defendant also contends the State failed to prove him guiltyof aggravated battery and driving while under the influence ofalcohol beyond a reasonable doubt.

When faced with such a claim, we view the evidence in thelight most favorable to the prosecution and determine whether anyrational trier of fact could have found the elements of the crimeproven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d237, 478 N.E.2d 267 (1985). We will not reassess the witnesses'credibility or reweigh their testimony, since these functionsbelong to the jury. People v. Jimerson, 127 Ill. 2d 12, 535N.E.2d 889 (1989). A reversal is warranted only if the evidenceis so improbable or unsatisfactory that it leaves a reasonabledoubt regarding the defendant's guilt. People v. Flowers, 306Ill. App. 3d 259, 714 N.E.2d 577 (1999).

A person commits battery if he knowingly causes bodily harmto an individual or knowingly makes physical contact of aninsulting or provoking nature with another person. 720 ILCS5/12--3 (West 2000). A person commits aggravated battery if hecommits battery while knowing that the individual being harmed isa peace officer who is engaged in the execution of officialduties, including arrest or attempted arrest. 720 ILCS 5/12--4(b)(6) (West 2000).

In this case, the parties presented conflicting versions ofthe events. Officer Gaughan testified that he was attacked bydefendant after trying to place him under arrest. On the otherhand, defendant and Lukasik testified that Gaughan attackeddefendant without provocation after defendant performed a fieldsobriety test. The jury could have rationally believed Gaughan'sversion of the events and discredited the testimony of defendantand Lukasik.

Based on Gaughan's testimony, the jury could have concludedthat defendant punched and tried to choke Gaughan after heattempted to place defendant under arrest. Gaughan was clearlyengaged in the execution of his official duties in trying toarrest defendant. Gaughan also testified he suffered physicalharm as a result of the altercation which was evidenced by a shoeprint on his face and red marks on his face and neck. Based onthis testimony, we conclude that a rational jury could have foundthat the elements of aggravated battery were proven beyond areasonable doubt.

With regard to defendant's DUI conviction, the statuteprovides that a person shall not drive any vehicle withinIllinois while under the influence of alcohol. 625 ILCS 5/11--501(a)(2) (West 2000). The credible testimony of an arrestingofficer alone is sufficient to sustain a conviction for drivingunder the influence of alcohol. People v. Bostelman, 325 Ill.App. 3d 22, 756 N.E.2d 953 (2001). An officer's testimony thatthe defendant's breath smelled of an alcoholic beverage and hiseyes were glassy and bloodshot is relevant evidence of physicaland mental impairment. Bostelman, 325 Ill. App. 3d 22, 756N.E.2d 953. Other relevant evidence of impairment may includetestimony that the defendant's speech was slurred, that he wasstaggering and that he failed a field sobriety test. People v.Wiebler, 266 Ill. App. 3d 336, 640 N.E.2d 24 (1994).

Defendant concedes he was driving the vehicle, but contendsthe evidence did not prove he was under the influence of alcohol. The State presented testimony that defendant stumbled as hewalked to the rear of the vehicle, he smelled of alcohol, hisspeech was slurred, his eyes were bloodshot and glassy, and hehad difficulty maintaining his balance. Additionally, Gaughantestified that defendant failed a field sobriety test and thebreath test indicated defendant's alcohol concentration was0.194. A rational jury could have found this evidence provedbeyond a reasonable doubt that defendant was under the influenceof alcohol.

Finally, defendant contends he was prejudiced becauseOfficer Gaughan sat at counsel table with the prosecutorthroughout the trial. Defendant contends Gaughan's credibilitywas bolstered due to his presence at counsel table.

Initially, the record does not indicate that defendantobjected at trial to the presence of Officer Gaughan. Ordinarily, failure to object at trial results in waiver of theclaimed error on appeal. People v. Enoch, 122 Ill. 2d 176, 522N.E.2d 1124 (1988).

Moreover, the presence of a police officer at counsel tabledoes not result in a presumption that the defendant wasprejudiced. See People v. Leemon, 66 Ill. 2d 170, 361 N.E.2d 573(1977); People v. Miller, 26 Ill. 2d 305, 186 N.E.2d 317 (1962). There is no indication from the record that defendant wasprejudiced by the presence of Officer Gaughan at counsel table. Accordingly, defendant's claim must fail.

For the foregoing reasons, the judgment of the circuit courtof La Salle County is affirmed.

Affirmed.

SLATER and LYTTON, JJ., concur.