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FOURTH DIVISION
August 26, 2004

JUSTICE GREIMAN delivered the opinion of the court:

Defendant Timothy Brogan was charged with multiple counts of concealing or aiding afugitive, official misconduct, and obstruction of justice. Following a bench trial, the defendantwas found guilty on all counts charged. His motion for a new trial was denied, and he wassentenced to 3 1/2 years' imprisonment. Defendant then filed a motion for bond pending appealthat the trial court denied, but we granted, on April 2, 2003. Defendant now appeals from hisconviction and sentence, and for the reasons that follow, we reverse in part and affirm in part.

The facts of this case involve the highly publicized events surrounding two weddingreceptions on August 5, 2000, at the William Tell Holiday Inn in Countryside, Illinois. Becausewe have previously recounted those facts in great detail in our previous opinion, People v.Schickel, 347 Ill. App. 3d 889 (2004), we will only provide those facts necessary for thedisposition of the issues at hand.

As the record bears out, on the evening of August 5, 2000, the defendant was employed asa Cook County correctional officer and was off duty during the time that he attended one of thetwo weddings at the Holiday Inn. The record also demonstrates that after the two weddingreceptions had concluded at approximately midnight, people from both parties went to the hotelbar. Apparently, the defendant and codefendant, Ronald Schickel⁽¹⁾, along with 10 to 15 otherpeople, lined the wall of the hotel that led from the lobby to the bar. When other wedding guestswould walk past, the people lined up against the wall began making harassing comments to femaleguests and verbally challenging the male guests to fight.

At this time, one of the guests, Richard Lange, told the bartender to call security. Eventually, the hotel manager, William Pishotta, called the Countryside police to assist in closingdown the hotel bar. After the Countryside police arrived, the defendant told them that he was aCook County sheriff's deputy, he showed them his badge, and he told them that he was sorry andthat he would take care of everything. Apparently, Mr. Pishotta then informed the police thathotel security could handle the situation. However, when hotel security arrived, defendant againflashed his badge and told the security officers that he was a Cook County sheriff. He thenexplained to one of the security guards, Mr. Rob Howe, "I don't need you people here. You'relike f- - -ing clowns." Mr. Howe then left the hotel.

Later that night, the security guards were called upon to control another incident in theparking lot of the Holiday Inn. Upon arrival, they again encountered the defendant flashing hisbadge, declaring that he was a Cook County sheriff and that he would handle the situation in theparking lot. Schickel, apparently, was also with him and was also claiming to be a Cook CountySheriff. After the Countryside police returned to the hotel, defendant again showed his badge andidentification card, identified himself as a Cook County sheriff, and stated that he had theinformation of the drivers of the vehicles involved in the incident.

At that time, or soon thereafter, fights began breaking out in the area outside the bar andnear the lobby, resulting in complete chaos. Objects in the lobby were smashed, furniture wasupended, and people were crying. One of the wedding guests, Mr. Rademacher, had beenpunched in the face and shoved to the ground, and was being choked by another individual. Afteranother wedding guest intervened, Mr. Rademacher was released from the chokehold, but was hitimmediately from behind by the defendant, who slammed him against a window and held himthere for approximately 15 seconds. After Mr. Rademacher's wife slapped the defendant andyelled at him while he was holding her husband, the defendant said "I'm a cop, my name is Tim,I'm a cop." At that point the defendant released Mr. Rademacher from the window and forciblytook him to a bench in the hallway. After Mrs. Rademacher asked the defendant whether he wasgoing to arrest her husband, defendant said "no, but if he gets off the bench, I'll kill him."

At approximately the same time, the victim entered the hotel and noticed that the menlining the wall were still harassing some women. As the victim tried to get the women away fromthe men, the defendant allegedly told the victim to "back off mother f-----." The recorddemonstrates some evidence that, at that point, the defendant and Schickel pushed and punchedthe victim in the face. After Schickel hit the victim, the victim tried to flee into the lobby, but wasgrabbed by the men in the hallway, who pulled him into the vestibule by the neck, got on top ofhim, and kicked and beat him.

At that point, Mr. Howe, accompanied by another security guard, Mr. Aguirre, had beencalled back to the hotel and had witnessed the defendant pushing the victim. Consequently,according to their testimony, they tried to get people off of the victim, who was at the bottom of apile. While they were able to get him to stand, the defendant still had him in a headlock, and bothtumbled into the vestibule area. When the Countryside police again arrived, the defendantidentified himself for the third time as a Cook County sheriff, flashed his badge, and told thepolice that the victim should be arrested because he was "fighting with everybody." After thedefendant released the victim, Schickel, who was also in the vestibule area, sprang into thedefendant's position and put the victim in a headlock. At that point, Schickel was in the vestibule,on top of the victim, choking him by the neck as he lay face-down on the ground. OfficerBattaglia from the Countryside police said the choker, whom he could not identify, had the victimin a "carotid artery chokehold" that was dangerous and deadly, if applied improperly.

Accepting what the defendant had told them, after defendant had announced himself as aCook County sheriff and once again flashed his badge, the Countryside police attempted to arrestand handcuff the victim. While Schickel still had the victim in a chokehold, the Countrysidepolice told the victim that he was under arrest and tried to handcuff him while he resisted. Duringthat time, Officer Battaglia told the choker to release the chokehold, but the choker did notcomply. The record also reflects that the defendant remained in the vestibule during that time. Once again, Officer Battaglia told the choker to release the victim and then felt the victim fall limponto his own right arm. The choker stated "he's out cold," but he still appeared to be breathingto Officer Battaglia.

According to Mr. Pishotta, the defendant lifted Schickel up at that time, but could not becertain if he lifted him off of the victim or the ground. After Schickel was upright, Mr. Pishottaheard the defendant say to Schickel that they should "get out of here." At that point, they bothwent outside the hotel. When Schickel was outside the hotel with the defendant, wearing a shirtthat had blood on the left side, he said that he "felt a snap." Although Mr. Pishotta ran outsidesoon thereafter in the attempt to find Schickel, Schickel was nowhere to be found. However, hedid find the defendant standing in the driveway and asked where the other gentleman was. Inreply, defendant stated that he "took off." Mr. Pishotta then asked the defendant if he knew whothe other gentleman was, and the defendant apparently replied, "yeah, but I'd rather not tell youthat." Defendant then said to Pishotta, "try not to point this guy out because I don't want him toget into trouble" because Schickel had just gotten a job and his wife just had a baby or "somethingto that effect." When Mr. Pishotta asked the name of the man who was choking the victim, thedefendant said that he could not tell him. The defendant then turned around and apologized toPishotta, saying that he should not have asked Pishotta to do that.

Later that evening, the defendant told his ex-fiancée and another female wedding guest tofind "Ronnie" and get him out of the hotel because "everybody was leaving." Defendant also toldJow Ivanauskas, an usher at one of the weddings, that they had to "get Ronny out of here." When the two women found Schickel, he asked why he had to leave because "he wasn't there,that he didn't know what happened." One of the women then told Schickel that the defendanttold her to get him out of the hotel "if she had to drag Ronny kicking and screaming." Schickelthen left the hotel using rapid check-out approximately half an hour later.

A few days later, the defendant was in a car with Sheila Roberts and Kevin Tomkins andtold them that he had done nothing wrong and that "he wasn't going to get in trouble for this." Ms. Roberts told the grand jury that the defendant also had said that he would "tell on" Schickel ifanyone tried to blame him. A few days after that incident, according to the grand jury testimonyof Dan O'Rourke, Schickel told Mr. O'Rourke that he burned the suit he was wearing the night ofthe wedding and bought another suit exactly like that one.

During the investigation of the defendant, Sergeant Carolyn Black from the Illinois StatePolice, interviewed the defendant on January 29, 2001. Sergeant Black testified that thedefendant stated that after the wedding ended, he and Shickel's brother went to the hotel bar andthen outside to the parking lot. He then described the altercation in the parking lot and that hetold the people involved that he was hotel security, but when the Countryside police arrived, hestated that he and Schickel's brother were off-duty Cook County sheriffs. After speaking with theCountryside police in the parking lot, he went back inside where he saw a "herd of people runningdown the hallway towards the lobby." He stated that he then ran down that hallway to thevestibule where another large fight was occurring, and that he pulled a man off of one of hisfriends, put his arm behind his back, pinned him against a window, and then walked him to abench. He told Sergeant Black that he told the man not to move and that the man's wife wasslapping him in the back as he took the man down the hallway.

Defendant then told Sergeant Black that the first time he saw the victim was when hestepped over him to go have a cigarette and that the victim was lying on the floor, not moving. The defendant claimed that he tried to get the victim to stand upright, but that he said "f - - - it. Dead weight." He also stated that he did not witness police officers handcuffing the victim andthat he did not identify himself as a police officer while he was in the vestibule. At that point, hestated, he saw Schickel outside and that he asked him what happened. Schickel apparently toldhim, "I just lost control," but the defendant told Sergeant Black that Schickel said that "it lostcontrol." Defendant claimed that he did not see any blood on Schickel's shirt.

Defendant said that Schickel then went back into the hotel. The hotel manager was alsostanding outside at that time and told him that the victim was dead. Defendant then admitted toSergeant Black that he told his ex-fiancée and two other women to find Schickel and to get himout of the hotel, and the reason he had told them that was because Schickel was not in his sightand he had been "fighting." He also admitted to displaying his badge twice that evening: once tothe security guards after he told them he could help; and once to the Countryside police after theincident in the parking lot.

However, the defendant denied to Sergeant Balck that he told his friend, Mr. Tomkins,that "he wasn't going down for what Schickel did, that he would give up Ronald in a heartbeat." He also denied that he restrained the victim in the vestibule or that he saw Schickel in thevestibule, or that he saw anyone, including Shickel, put a chokehold on the victim. He deniedtelling the Countryside officers to place the victim under arrest, and further denied telling Mr.Pishotta, the hotel manager, not to identify Schickel because his wife was having a baby.

After the State rested, the defendant's motion for a directed finding was denied. Theparties then entered into various stipulations, one of which was that defendant was employed as aCook County correctional officer on August 5-6, 2000, that he was off duty at the time, that theCook County Department of Corrections General Orders were applicable to the defendant onAugust 5-6, 2000, and that the defendant acknowledged reading and understanding his duty toabide by the Cook County Department of Corrections General Orders and Procedures.

The defense presented traffic patrol officer Anthony Jarvis, who stated that he had been atthe William Tell Holiday Inn on August 6, 2000, at approximately 2 a.m. Essentially, Jarvistestified that he had never seen anything like the scene that evening in his nine years on the force. He also testified that when he went to the front of the vestibule from the lobby, he saw "twoCountryside police officers, a subject down on the ground, and two other subjects in thevestibule." He testified that the two nonpolice subjects were standing to the left side of thevestibule toward the corner in the back, and he later identified them as Kevin and Brian Tomkins. On cross-examination, Officer Jarvis stated that he attempted to prevent entry into the vestibule,and when defendant attempted to enter, Jarvis grabbed him by the arm. At that point, defendantstated, "don't touch me. I'm a f - - - - - - Cook County Sheriff." Because Officer Jarvis believedthat the other Countryside officers had the situation in control, he walked away from thevestibule.

After the defense's presentation of witnesses, neither the defendant nor Schickel chose totestify on his own behalf. After the trial court fully admonished the defendants as to their rights totestify and was assured that they had knowingly and voluntarily waived that right, the trial courtheard closing arguments. Thereafter, in rendering its decision, the trial court mapped out the factsof the case as it saw them. Specifically, it found Mr. Pishotta's testimony to be credible, despitesome inconsistencies, and put particular emphasis on the defendant's protection of Schickel, whenhe told the group of women to "tell Ronny to get out." As a result, the court found that thedefendant was in the vestibule when Schickel was choking the victim and that the evidence againstthe defendant "fits like a hand in a glove * * * and it's a perfect fit." He also stated that thedefendant "sacrificed the public good, violated his oath, betrayed the public trust * * * by doingwhat he did on August 6, 2000 * * * to help keep Ronald Schickel Jr. out of harm[']s way."

The trial court then found the defendant guilty. After denying the defendants' posttrialmotions, the trial court sentenced the defendant to 3 1/2 years' imprisonment. Defendant nowappeals his conviction and sentence.

Defendant's first argument on appeal is that the State failed to establish one or moreelements of each crime charged and, therefore, judgment for acquittal should be entered for him. Alternatively, he argues that he was not proven guilty beyond a reasonable doubt because he wasnot acting in his "official capacity" when he refused to tell Mr. Pishotta his codefendant's identityand, moreover, because he did not know that Schickel had committed an offense.

To defendant's first allegation, the State argues that defense counsel's failure to renewdefendant's motion for a directed verdict at the conclusion of the State's case waives his right toargue such a motion on appeal. People v. Barrow, 133 Ill. 2d 226, 249 (1989). Ordinarily, wherea defendant elects to present evidence following the denial of his motion for directed finding, anyerror in the trial court's ruling on the motion is waived unless the defendant renews the objectionat the close of all the evidence. Barrow, 133 Ill. 2d at 249, People v. Turner, 127 Ill. App. 3d784, 789 (1984).

However, where a defendant challenges the sufficiency of the State's indictment againsthim, he is making a jurisdictional challenge that may be challenged for the first time on appeal. People v. Adams, 64 Ill. App. 3d 547, 548 (1978). In the present case, the defendant neverchallenged the sufficiency of the indictment at trial, but raises it now on appeal. Accordingly, hisargument is not that the trial court erred in denying his motion for judgment of acquittal, but thatthe State's indictment failed to allege all the elements essential to the proof of the purportedcriminal act, thus necessitating a judgment of acquittal. Thus, the State's waiver argument is notwell-taken, and we will entertain defendant's argument. Because the issue of whether anindictment sufficiently alleges all the elements of a crime is a question of law, our review is denovo. People v. Simac, 321 Ill. App. 3d 1001, 1003 (2001).

As noted, the court entered judgment against defendant on four counts of officialmisconduct. In pertinent part, the official misconduct statute reads:

"A public officer or employee commits misconduct when, in his officialcapacity he:

* * *

(b) knowingly performs an act he knows is forbidden by law." 720 ILCS5/33-3 (West 2000).

The official misconduct statute itself does not prohibit specific conduct, but exists by reference tothe violation of another statute, administrative rule, or legal duty. In other words, the statutepunishes acts that are expressly prohibited by positive law. People v. Wilkinson, 285 Ill. App. 3d727, 733 (1996). Moreover, the charge can be based on the violation of administrative rules orregulations even if that rule or regulation itself does not carry a penalty for its violation. People v.Davis, 281 Ill. App. 3d 984, 989 (1996).

Of the four counts on which judgment was entered, the first three are based upon theconcealing-or-aiding-a-fugitive statute, section 31-5 of the Criminal Code of 1961 (720 ILCS5/31-5 (West 2000)), which states:

"Every person not standing in the relation of husband, wife, parent, child,brother or sister to the offender, who, with intent to prevent the apprehension ofthe offender, conceals his knowledge that an offense has been committed orharbors, aids or conceals the offender, commits a class 4 felony." 720 ILCS 5/31-5 (West 2000).

Count XV states that the defendant committed the offense of official misconduct "in that he, beinga public employee, in his official capacity, to wit: Cook County Correctional Officer, knowinglyperformed an act which he knew by law he was forbidden to perform, to wit: Timothy Brogancommitted the offense of concealing or aiding a fugitive in that he, knowing that Ronald Schickelcommitted an offense, and with the intent to prevent Ronald Schickel's apprehension, aidedRonald Schickel, told individuals to get Ronald Schickel out of the Holiday Inn *** beforeRonald Schickel could be apprehended by law enforcement authorities."

Count XVI also alleges official misconduct based on concealing or aiding a fugitive andtracks the language of count XV, except for the specific conduct alleged: "in that he, knowingthat Ronald Schickel committed an offense, and with the intent to prevent Ronald Schickel'sapprehension, aided Ronald Schickel by refusing to give Ronald Schickel's name to William Pishotta." Count XVII again uses the language of the concealing a fugitive statute, but states thatBrogan aided Schickel by telling "William Pishotta not to identify Ronald Schickel as havingchoked Michael Chambers." Count XXVII, the final count, charged the defendant with officialmisconduct for knowingly violating Cook County Department of Corrections General Order 4.1(III)(A.)(18), which states "serious misconduct includes making a false official report, either oralor written, in that he falsely reported to law enforcement officers that he did not see RichardSchickel choke Michael Chambers."

In other words, defendant notes, in order to properly allege these four counts, thefollowing elements must be present: defendant (1) acting in his official capacity, and (2)knowingly committing an act he knew to be forbidden by law. Thereafter, two additionalelements are required for the counts based on aiding a fugitive: (1) the defendant knew Schickelcommitted an offense and (2) the defendant with the intent to prevent Schickel's apprehension,aided him by specific conduct. The additional element for count XXVII is making a false officialreport in which defendant falsely said he did not see Schickel choke the deceased. In light ofthose requirements, defendant argues that the State's indictment failed in two regards, as it didnot sufficiently allege that any of his acts were performed in an official capacity, and it did notestablish that the defendant was aware that Schickel had committed a crime and that defendantthen made an affirmative action to conceal such knowledge.

Regarding whether the indictment competently alleged that defendant was acting in anofficial capacity, defendant argues that the mere fact that an accused is a law enforcement officeris not the equivalent of alleging that wrongful conduct was committed in an official capacity. Forexample, defendant notes, in People v. Jordan, 15 Ill. App. 3d 672, 676 (1973), this court foundthat money a police officer received while on duty from an ambulance driver was not received inan official capacity where there was no evidence that the officer accepted it for performance ofany act. In People v. Hampton, 307 Ill. App. 3d 464 (1999), this court again found that where apolice officer who was convicted of drug possession did not use his official position to obtain thedrugs, he could not be guilty of official misconduct, even though he was guilty of the underlyingdrug charge.

In the present case, defendant claims that the facts demonstrate that he was off duty,attending a wedding celebration when the multiple fights ensued, resulting in the victim's death. Defendant concedes that while he may have been acting in an official capacity when he performedlaw enforcement types of activities - such as separating combatants and attempting to disrupt thefighting - those activities are not what is claimed to be illegal. In other words, simply identifyinghimself as a law enforcement officer to the security guards and flashing his badge in thosesituations, defendant argues, may have been part of his official conduct, but it was not officialmisconduct. To that end, defendant claims that nowhere in the indictment does the State allegethat he used the power attached to his position, or exploit his official status, in telling his friendsto get Schickel out of the hotel (count XV), refusing to give Schickel's name to Pishotta (countXVI), or in telling Pishotta not to identify the person involved in the melee with the victim (countXVII). In fact, defendant argues, nothing about the facts in the record suggests that he wasacting in anything but a personal capacity, as those acts were undertaken out of personal concernfor his friend. And with regard to count XXVII, defendant argues that nothing in the recordsuggests that he was creating an "official report" as an officer. Instead, defendant claims, he wasspeaking as a citizen witness and giving his own recollection of the events to cooperate with theinvestigation. Thus, defendant argues, because the State did not allege sufficient facts that he wasacting in such a capacity when carrying out his purportedly illegal actions, the official misconductstatute does not apply.

Moreover, with regard to the actual multiple offenses of aiding a fugitive (counts XVthrough XVII), defendant argues that case law requires that in order to "conceal" knowledge ofan offense or an offender, a person must take an "affirmative act" in connection with theconcealment. For example, he argues that in People v. Thomas, 198 Ill. App. 3d 1035 (1990),this court found that the defendant's failure to disclose to a detective his full knowledge of anassailant's identity was not concealment of a fugitive. Moreover, in People v. Vath, 38 Ill. App.3d 389 (1976), this court also found that the defendant's denial to police of his knowledge of theassailant's identity was not an affirmative act of concealment.

In the present case, defendant argues the facts in the indictment fail to demonstrate thatdefendant was even aware that Schickel had committed a crime, much less that the defendant sawSchickel choking the deceased. Alternatively, defendant argues that even if the indictmentsufficiently alleges that he had the requisite knowledge that Schickel killed the victim, none of hisremarks to his friends, Pishotta, or Sergeant Black constituted affirmative acts of concealment. Rather, defendant claims, such actions were essentially a failure to disclose full knowledge of theassailant which, under Thomas, 198 Ill. App. 3d 1035, and Vath, 38 Ill. App. 3d 389, this courthas not found to constitute an affirmative act of concealment. Accordingly, defendant concludes,because the State has failed to present any of these requisite elements in its indictment, we shouldorder a directed finding in his favor.

All defendants have a fundamental, constitutional right to be informed of the "nature andcause" of the charges against them. People v. Meyers, 158 Ill. 2d 46, 51 (1994). In Illinois, thisfundamental right is given substance by statute and incorporated into section 111-3 of the Code ofCriminal Procedure of 1963 (the Criminal Procedure Code) (725 ILCS 5/111-3 (West 2000)). See Meyers, 158 Ill. 2d at 51. However, if an indictment is attacked for the first time on appeal, itis sufficient that the indictment " 'apprised the accused of the precise offense charged withsufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar tofuture prosecution arising out of the same conduct.' " People v. Thingvold, 145 Ill. 2d 441, 448(1991), quoting People v. Gilmore, 63 Ill. 2d 23, 29 (1976), and citing People v. Pujoue, 61 Ill.2d 335, 339 (1975). Put another way, a reviewing court should consider whether the defect inthe indictment prejudiced the defendant in preparing his defense. Thingvold, 145 Ill. 2d at 448.

Moreover, we have found that under normal circumstances, the requirements of section111-3 are met when the counts of a complaint follow the statutory language in setting out thenature and elements of an offense. People v. Davis, 281 Ill. App. 3d 984, 987 (1996). As wenoted in People v. Swartwout, 311 Ill. App. 3d 250, 256 (2000):

"The relevant inquiry is not whether a charging instrument could have described anoffense with more particularity, but whether there is sufficient particularity toallow the defendant to prepare a defense. Meyers, 158 Ill. 2d at 54. A charginginstrument is a preliminary pleading, and it need not contain more than a cursorystatement of the facts. [People v.]Smith, 259 Ill. App. 3d [492,] 497 [(1994)]. Ifthe charging instrument meets the minimum requirements of section 111-3(a) but(combined with any discovery the State furnishes) is insufficient to allow thedefendant to prepare a defense, he or she can--and should--seek a bill ofparticulars. Smith, 259 Ill. App. 3d at 498; People v. Intercoastal Realty, Inc., 148Ill. App. 3d 964, 971 (1986)." Swartwout, 311 Ill. App. 3d at 256.

Indeed, this court has found a charging instrument to be sufficient where a defendant is able todiscern from the charging document that at a specific time and at a specific place the statute hadbeen violated. Swartwout, 311 Ill. App. 3d at 256, citing Intercoastal, 148 Ill. App. 3d at 971. As the Intercoastal court concluded:

"It [is] not necessary to allege the precise details of the condition of the property inthe charging instrument. [Citation.] Any further information defendants [need] toprepare their defense [can] be obtained through a bill of particulars. [Citations.]" Intercoastal, 148 Ill. App. 3d at 971.

In the present case, the language of all four charges of which the defendant was convictedclosely tracked the language of the official misconduct statute, section 33-3 of the Criminal Codeof 1961. 720 ILCS 5/33-3 (West 2000). Indeed, we find that the indictment alleged that at aspecific place on a specific date, the defendant, who was an officer acting in his official capacity,actively concealed his knowledge and aided Schickel to prevent Schickel's apprehension.

While defendant asserts that the State does not adequately allege how and when thedefendant was acting in his official capacity, does not adequately allege that the defendant knewthat Schickel had choked the victim, and does not elucidate how his actions constituted activeconcealment, we find that such arguments focus only on the nature of the proof rather than thenature of the offenses. Where the defendant has not alleged that the indictment failed toparticularize his offenses such that his ability to present a defense was prejudiced, his claim mustfail. Pursuant to Intercoastal, therefore, we find that the State's indictment charging officialmisconduct following the statutory language of section 33-3 of the Criminal Code of 1961 issufficient under section 111- 3. See Intercoastal, 148 Ill. App. 3d at 971. Because the State'sindictment provided sufficient particularity to allow defendant to prepare his defense, we denydefendant's motion to dismiss.

Defendant next argues that the State failed to prove him guilty beyond a reasonable doubtof official misconduct. A conviction challenged on sufficiency of evidence grounds will not bereversed unless the evidence is so improbable that there remains a reasonable doubt of thedefendant's guilt. People v. Eyler, 133 Ill. 2d 173, 191 (1989). In other words, a defendant canonly prevail in such a challenge if the reviewing court finds that no reasonable fact finder couldhave found the essential elements of the crime beyond a reasonable doubt when viewing theevidence in the light most favorable to the prosecution. People v. Collins, 106 Ill. 2d 237, 261(1985). In that regard, it is the fact finder's function to assess the credibility of the witnesses andto resolve conflicts or inconsistencies in their testimony based upon the evidence, and a reviewingcourt will not substitute its judgment for that of the trier of fact. People v. Novotny, 41 Ill. 2d401, 412 (1968).

With regard to the charges, we have found the offense of official misconduct was designedto reach those situations where a public officer has exploited his official position to the detrimentof the public good. People v. Steinmann, 57 Ill. App. 3d 887, 897 (1978). As noted, the twoelements of the offenses of official misconduct as charged in the present case are that (1)defendant knowingly performed an act which he knew was forbidden by law to perform, and (2)that he did so in his official capacity. Defendant challenges the trial court's verdict as it pertainsto both elements for all four charges against him. Consequently, our inquiry must focus uponwhether there is evidence in the record to support the trial court's conclusion.

Taking the second prong first, the defendant argues that he was "off duty" when heattended the wedding celebration. While admitting that he did act in his official capacity at certainpoints in the night, he asserts that he was not acting in his official capacity when he spoke toeither Pishotta or Sergeant Black, or when he told his friends to get Schickel out of the hotel. The State argues, however, that the defendant cannot pick and choose when he was acting in hisofficial capacity. To that end, the State asserts that the record demonstrates clear evidence thatthe defendant interposed his public office and his authority as a Cook County sheriff throughoutthe evening.

First, when the Countryside police arrived at the hotel in response to the originaldisturbance in the hotel bar, the defendant told them that he was a Cook County sheriff's deputy,showed them his sheriff's badge, and told them that he would take care of everything. After thepolice left and hotel security came, he again flashed his badge, again introduced himself as asheriff's deputy, and told one of the security guards, "I don't need you people here. You're like f------ clowns." The record reflects that a short time later, the defendant again encountered thesecurity guards when dealing with the incident in the parking lot, where he flashed his badge, saidthat he was a Cook County sheriff, and that he would handle the situation in the parking lot. When the Countryside police arrived to check on the parking lot situation, he again flashed hisbadge, plus his identification card, identified himself as a Cook County sheriff's deputy, and statedthat he could help the Countryside police.

Soon after that incident, when the fighting between the two wedding parties was out ofcontrol, the evidence demonstrates that defendant hit Mr. Rademacher from behind, slammed himup against a window, and held him there for approximately 15 seconds. When Mrs. Rademachertried to intervene, he told her "I'm a cop, my name is Tim, I'm a cop." After defendant releasedMr. Rademacher and forcibly took him to a bench in the hallway, Mrs Rademacher asked ifdefendant was going to arrest her husband. Defendant responded "no, but if he gets off thebench, I'll kill him."

Finally, at the end of the evening when the Countryside police arrived for the third time,defendant identified himself again as Cook County sheriff's deputy, displayed his badge to thepolice, and told everyone that it was the victim who was "fighting with everybody." Based uponthat representation, the Countryside police then spent their time handcuffing the victim whileSchickel was able to flee from the hotel.

The record indeed demonstrates that the defendant identified himself as a sheriff's deputyat least six times that evening to gain control over multiple situations. However, "not all actionsof a police officer, even those performed while on duty, are done in one's official capacity." Steinmann, 57 Ill. App. 3d at 897. Indeed, case law has demonstrated that the key to proving aconviction for official misconduct is that the alleged perpetrator actively used his or her positionor official status to "[k]nowingly perform an act which he knows he is forbidden by law toperform." 720 ILCS 5/33-3 (West 2000). In other words, its not enough that a defendantcommits a crime when acting in an official capacity; he must also use the very fact of his authorityor position to further the commission of that crime. See Steinmann, 57 Ill. App. 3d at 897, andcases cited therein.

As a result, the defendant's repeated identification of himself as a sheriff's deputy, byitself, is insufficient to bring him under the purview of official misconduct statute, even thoughsuch a demeanor makes defendant's attempt to separate what was not done in an official capacityall the more difficult. Rather, there must be evidence of abuse of that official capacity. In thatregard, we find there is ample evidence to sustain the trial court's findings on counts XVI andXVII. All evening, defendant had introduced himself to Pishotta as a sheriff's deputy and assomeone who was controlling the situation. Accordingly, we find it quite reasonable for a trier offact to deduce that the defendant was using his status as an officer as a means of persuadingPishotta not to identify Schickel and preventing him from learning his identity. Similarly, withregard to count XVII, it was entirely reasonable to find that defendant's oral report to SergeantBlack was an attempt to utilize his official capacity as a sheriff's deputy to provide inaccuratefacts that would be imbued automatically with the enhanced credibility given to police officers. Thus, we sustain the trial court's findings as to count XVII as well.

Count XV, however, presents a different set of facts. There, the defendant is chargedwith knowingly performing a forbidden act, i.e., committing the offense of aiding a fugitive, bytelling "individuals to get Ronald Schickel out of the Holiday Inn *** before Ronald Schickelcould be apprehended by law enforcement authorities" while acting in an official capacity. However, no evidence was ever presented at trial to suggest that the defendant was utilizing thepower attached to his status as a sheriff's deputy when he told his friends to "get Ronny out." Indeed, the State offered no evidence to suggest that the defendant's friends warned Schickel toleave the hotel for any other than personal reasons. Schickel was the friend of the defendant andthe other individuals, and the evidence clearly shows that the defendant was acting in an individualcapacity when he asked the others to hasten Schickel's departure from the hotel. Quite simply, hedid not want to see his friend caught. Accordingly, because the State failed to prove a requisiteelement of official misconduct in count XV, we reverse the defendant's conviction on that charge.

Defendant's second challenge to the evidence is that the State did not prove theunderlying offense, that he knowingly aided a fugitive. As noted, to convict someone under thefugitive statute, the State must prove that the accused (1) concealed his knowledge that anoffense had been committed, and (2) with the intent to prevent the apprehension of the offender,harbors, aids, or conceals him. 720 ILCS 5/31-5 (West 2000). Defendant argues that case lawrequires that in order to "conceal" knowledge of an offender, a person must take an "affirmativeact" in connection with the concealment. See People v. Thomas, 198 Ill. App. 3d 1035, 1038(1990) (a defendant's failure to disclose to a detective the full scope of his knowledge of anassailant's identity was held not to constitute concealment of a fugitive); People v. Donelson, 45 Ill. App. 3d 609, 612 (1977) (court held that the failure to reveal knowledge that someone elsehas committed a crime is not an affirmative act of concealment).

In the present case, defendant asserts that the State's evidence failed to show hisknowledge that Schickel committed the crime of homicide. For that matter, defendant argues, theState failed to prove that he saw Schickel choking the deceased. However, defendant claims,even if this court were to assume that he had the requisite knowledge that Schickel killed thevictim, there was no evidence to suggest that he took an affirmative act to conceal thatknowledge. Rather, he argues that all of his comments and actions were, like in the casespreviously mentioned, simply a failure to disclose the full scope of his knowledge. We disagree.

Previously, this court has found that the mental state of "knowledge" is ordinarily provenby circumstantial evidence as opposed to direct proof. People v. Sedlacko, 65 Ill. App. 3d 659,663 (1978). And as previously noted, a defendant can only prevail in a challenge to thesufficiency of the evidence if we find that no reasonable fact finder could have found the essentialelements of the crime beyond a reasonable doubt when viewing the evidence in the light mostfavorable to the prosecution. Collins, 106 Ill. 2d at 261.

Initially, we find the record reveals evidence that it was actually the defendant who had thevictim in a headlock when they fell into the vestibule door area. At that point, Schickel was alsoin the vestibule area. According to one of the security officers, when the police arrived, thedefendant released the victim from the headlock and Schickel jumped in and replaced the defendant, performing a "carotid artery choke" on the victim. At that point, the record revealsthat Schickel was in the vestibule on top of the victim, choking him by his neck, as the victim layface down. When the police attempted to handcuff the victim based upon the defendant'srepresentations to them, there is evidence that Schickel still had the victim in a chokehold whilethe defendant remained in the vestibule.

While the defendant claims that his conviction cannot stand because he did not seeSchickel in the vestibule, such an argument ignores that the trial court heard testimony of certainwitnesses who did see him in the vestibule. Specifically, an individual named Terrance Jordan sawthe defendant holding the victim when they went through the vestibule doors; Officer Battagliasaw the defendant in the vestibule while the defendant was yelling at the officer that the victimwas under arrest and that the defendant was a Cook County sheriff's deputy; Officer KennethGoluszka saw the defendant holding the victim in a headlock and bringing him to the ground inthe vestibule, after which the defendant was shouting that the victim was under arrest; andWilliam Pishotta saw the defendant in the vestibule with Schickel and heard him say to Schickel,"let's get out of here." Defendant also argues that many of these witnesses' statements should bereexamined in light of their credibility and inherent conflicts with one another. As noted,however, it is only the fact finder's function to assess the credibility of the witnesses and toresolve conflicts in their testimony, and we will not substitute our judgment for that of the trier offact. People v. Novotny, 41 Ill. 2d 401, 412 (1968).

Furthermore, contrary to the defendant's argument, it is not necessary that the defendantknow that Schickel had committed a homicide. As the record demonstrates, the indictment of the defendant states that defendant was aware that Schickel had committed an "offense," which isdefined as "a violation of any penal statute of this State." 720 ILCS 5/2-12 (West 2000). Thus,where the concealment statute criminalizes the act of concealing an "offender," and an offender isan individual who violates any penal statute, all that was necessary was for the State to prove thedefendant guilty of aiding a fugitive was that the defendant knew that Schickel had committed anoffense. As previously noted, we find the record demonstrates that the defendant knew, at thevery minimum, that Schickel had committed a battery against the victim in the Holiday Innvestibule.

Finally, with regard to whether the defendant took "an affirmative act in connection withthe concealment," we find ample evidence to suggest that defendant's actions are not akin tothose where a defendant gives incomplete information. Here, the defendant specifically askedPishotta not to identify Schickel as the choker; he specifically refused to tell Pishotta whereSchickel was; he specifically refused to identify Schickel to Pishotta when Pishotta asked who hewas, after Pishotta had seen the two men in the vestibule together and the evidence suggested that defendant clearly knew about whom Pishotta was asking; and he specifically told Pishotta to "trynot to point this guy out because I don't want him to get into trouble" because Schickel had justgotten a job and his wife had just had a baby "or something to that effect." He then took anotheraffirmative step, telling his ex-fiancée and some other wedding guests to find "Ronny" and get himout of the hotel" even "if she had to drag [him] kicking and screaming." Finally, the defendant'srepresentations to Sergeant Black reach far beyond a passive nondisclosure of the events of thatevening and into a full-fledged misrepresentation of what transpired. Specifically, he claimed thatthe first time he saw the victim was when he stepped over him to get a cigarette and that thevictim was lying on the floor, not moving. Where the evidence suggests that defendant did, infact, see Schickel choke the victim, we find it entirely reasonable for a fact finder to have foundthat the defendant's conversation with Sergeant Black, as well as the others constituting theoffenses of which he was convicted, were all "affirmative acts" in connection with his concealmentof Schickel. Thus, we reject the defendant's challenge to the sufficiency of the State's evidenceand hold that the trial court did not err in finding him guilty of the underlying offenses ofconcealing a fugitive.

We note that while we have reversed one conviction for the enhanced charge of officialmisconduct (count XV), we have found that the evidence established that defendant was guilty ofall four underlying offenses of concealing a fugitive. Accordingly, with regard to count XV, wefind the evidence at trial supports a finding of guilt against the defendant for concealing a fugitive(a class 4 felony that carries a sentence of not less than one year and not more than three years'imprisonment) as a lesser included offense of official misconduct. 730 ILCS 5/5-8-1(a)(7) (West1996). Conversely, we note that the trial court properly convicted the defendant of three countsof official misconduct (counts XVI, XVII, and XXVII), a class 3 felony that carries a sentence ofnot less than two years and not more than five years. 730 ILCS 5/5-8-1(a)(6) (West 1996). Asthe trial court sentenced the defendant to 3 1/2 years' total imprisonment - a sentence well withinthe statutory bounds - and where it is clear that the trial court did not place any significant weighton the improperly found aggravating factor of official misconduct for count XV, we need notremand the matter for resentencing. See People v. Bourke, 96 Ill. 2d 327, 332 (1983) ("where itcan be determined from the record that the weight placed on the improperly consideredaggravating factor was so insignificant that it did not lead to a greater sentence, remandment isnot required. [Citations.]").

The following material is non-publishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).

For the foregoing reasons, we affirm in part and reverse in part the decision of the trialcourt.

Affirmed in part and reversed in part.

QUINN, P.J., and HARTMAN, J., concur.

1. Codefendant Schickel was found guilty of manslaughter and was sentenced to 4 1/2years' imprisonment. He is not a party to this appeal, but his conviction was previously affirmedby this court in People v. Schickel, 348 Ill. App. 3d 889 (2004).