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Modified Upon Denial of Rehearing

JUSTICE BOWMAN delivered the opinion of the court:

In 2001, following a jury trial, defendant, James A. Brexton, was convicted of escape (720ILCS 5/31--6(c) (West 2000)). Because his conviction qualified as a Class X felony, the courtsentenced him to six years' imprisonment. He now appeals his conviction.

The following was adduced at trial. On June 3, 2001, in Freeport, police officer Fred Cassresponded to a dispatch indicating that a suspected shoplifter was on a bicycle behind the local Kmart store. When Cass arrived on the scene, he saw defendant standing behind the store with abicycle between his legs. He then observed defendant putting something, later discovered to be aDVD player, into an Aldi shopping bag . Cass arrested defendant for retail theft.

Following the arrest, Cass turned defendant over to police officer Aaron Dykema to transporthim to the Freeport police department. After handcuffing defendant and bringing him to the station,Dykema commenced the usual booking procedures.

After booking defendant, Dykema placed defendant in a holding room. He left defendant inthe room by himself and walked across the hall to obtain a Miranda waiver form, because heintended to ask defendant to make a statement. When he returned to the holding room, defendantwas not there. Defendant had left the station. About a week later, Officer Cass saw defendant anda foot chase ensued. Cass arrested him and defendant was subsequently charged with escape.

At trial, defendant's counsel attempted to question Cass regarding his reasons for arrestingdefendant. After the State's objection, defendant's counsel argued that it was necessary to elicitCass's reasoning to determine if probable cause existed to take defendant into custody. The courtsustained the State's objection, ruling that the determination of whether probable cause existed wasa question of law for the court to decide. Then, during closing arguments, defendant's counselattempted to argue that the State was required to prove that defendant was in custody for thecommission of a felony. The court again upheld the State's objection, ruling that it was not anelement of the offense of escape.

On appeal, defendant contends that the court erred by denying him the opportunity at trialto question Officer Cass regarding the existence of probable cause to effectuate an arrest. He alsoargues that the State was required to prove as an element of the crime of escape that defendant wasin custody for the commission of a felony. Last, he asserts that he was denied a fair trial because thejury saw him in leg irons before he took the stand to testify. We affirm.

Defendant was convicted of escape under section 31--6(c) of the Criminal Code of 1961(Code) (720 ILCS 5/31--6(c) (West 2000)). Section 31--6(c) states:

"A person in the lawful custody of a peace officer for the alleged commission of afelony offense and who intentionally escapes from custody commits a Class 2 felony;however, a person in the lawful custody of a peace officer for the alleged commission of amisdemeanor offense and who intentionally escapes from custody commits a Class Amisdemeanor." 720 ILCS 5/31--6(c) (West 2000).

Because defendant challenges the court's construction of section 31--6(c), our review in this matteris de novo. People v. Hart, 313 Ill. App. 3d 939, 941 (2000).

First, defendant argues that the phrase "lawful custody" in section 31--6(c) requires the Stateto show that the arresting officer possessed probable cause to take defendant into custody. Hemaintains that the element of "lawful custody" is synonymous with probable cause and that provingthis element of escape requires a jury finding of the existence of probable cause. Thus, he believesthat his counsel should have been allowed the opportunity to question Officer Cass regarding hisreasons for arresting defendant.

Defendant did not challenge the legality of his arrest by filing a motion to suppress. We notethat defendant has not asked us to decide if his arrest was illegal. Moreover, we have not been askedto decide whether defendant's conviction would be void as a consequence of an illegal arrest on theunderlying offense of retail theft. Rather, defendant has raised a more limited set of questions,namely, whether the State had a burden to demonstrate that probable cause existed when defendantwas taken into custody for retail theft and if it was within the province of the jury to make adetermination that the State had met this purported burden.

Under section 107--2(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/107--2(c)(West 2000)), a police officer may arrest a person when he has reasonable grounds to believe thatthe person is committing or has committed an offense. Our supreme court has held that the"reasonable grounds" standard is synonymous with probable cause. People v. Holveck, 141 Ill. 2d84, 95 (1990). "Probable cause exists when the totality of the facts and circumstances known to theofficer making the arrest is such that a reasonably prudent person would believe that the suspect iscommitting or has committed a crime." People v. Miller, 212 Ill. App. 3d 195, 201 (1991). Thelanguage of section 31--6(c) does not state that probable cause is required to find that a defendantis in "lawful custody." 720 ILCS 5/31--6(c) (West 2000). Moreover, the existing case lawinterpreting section 31--6 leads us toward a conclusion that probable cause is not an underlyingelement of escape.

In People v. Kosyla, 143 Ill. App. 3d 937, 951 (1986), a defendant charged with escape undersection 31--6(c) argued that the police never established "custody." There, police responding to aneighbor's complaint about disorderly conduct confronted a belligerent defendant, who was playinghis music too loudly. Kosyla, 143 Ill. App. 3d at 951-52. The police officer told the defendant thathe was under arrest. In response, the defendant ran toward his house saying he was going to call hislawyer. Instead, he ran behind his house and climbed over his fence to elude police. He was laterarrested after the police secured a warrant. Kosyla, 143 Ill. App. 3d at 952. We stated that "[b]asedon these facts, the defendant was not yet in the lawful custody of a peace officer as that phrase isused in section 31--6(c)." Kosyla, 143 Ill. App. 3d at 952.

Later in People v. Lauer, 273 Ill. App. 3d 469, 474 (1995), a defendant argued that he wasnot proven guilty beyond a reasonable doubt "because his arrest was never completed and he wasnever in the lawful custody" of a police officer. In Lauer, the court stated that, in contrast to Kosyla,the police did more than just announce the defendant was under arrest. Lauer, 273 Ill. App. 3d at474. The officer had restrained the defendant and physically moved him from the back to the frontroom of a house before the defendant broke free and ran out the back door of the house. Lauer, 273Ill. App. 3d at 474. As a result, the court held that this was sufficient evidence for the jury to convictthe defendant of escape. Lauer, 273 Ill. App. 3d at 474.

We extract two important points from Kosyla and Lauer. First, both cases define "lawfulcustody" by looking at the control exercised by the police over the defendant. Second, neither casesearches for the existence of probable cause to determine if the "lawful custody" element of section31--6(c) has been satisfied under the given factual situation.

Other cases have held that, even if an underlying charge or indictment is found to be invalid,the escape charge is unaffected. In People v. Hill, 17 Ill. 2d 112, 115 (1959), the defendantattempted an "attack upon the sufficiency of the proof to establish his guilt beyond a reasonabledoubt, on the theory that because the indictment [for burglary] was defective there was no competentproof that he was lawfully held in custody." The supreme court decided that, even if the indictmentunder which the defendant was held was invalid, its validity could not be challenged in that case. Hill, 17 Ill. 2d at 116. The court stated that more orthodox procedures than escape are available toprocure release of those who are unlawfully held in custody. Hill, 17 Ill. 2d at 116. The court laterreaffirmed this position in People v. Nastasio, 30 Ill. 2d 51, 58 (1963).

Usually, the method to challenge any alleged illegality of a defendant's arrest is through amotion to quash arrest and to suppress evidence. See 725 ILCS 5/114--12 (West 2000); People v.Moore, 307 Ill. App. 3d 107, 113 (1999). A defendant filing such a motion has the initial burden toestablish a prima facie case that the police lacked probable cause to arrest. People v. Riszowski, 22Ill. App. 3d 741, 746 (1974).

Thus, given that (1) section 31--6 does not mention probable cause, (2) the case law iscontrary to defendant's position, and (3) the usual challenge to probable cause places the initialburden on the defendant, we conclude that the State did not have the burden to demonstrate thatprobable cause existed when defendant was taken into custody for retail theft. Accordingly, wefurther reject defendant's contention that the issue of probable cause was a question to be presentedto the jury.

Next, during closing arguments, defendant's counsel attempted to argue that the State wasrequired to prove as an element of the crime of escape that defendant was in custody for thecommission of a felony. Defendant asserts that the trial court improperly denied his counsel theopportunity to comment on the issues instruction for escape given to the jury. We find that the trialcourt correctly prohibited counsel's commentary because he was trying to add an element that wasinappropriate for the jury to decide.

The issues instruction given to the jury read:

"To [s]ustain the charge of escape, the State must prove the following propositions:

First Proposition: That the defendant was in the lawful custody of a peace officer; and

Second Proposition: That the defendant was in custody for the alleged commissionof [r]etail theft; and

Third Proposition: That the defendant intentionally escaped from custody."

See Illinois Pattern Jury Instructions, Criminal, No. 22.28 (4th ed. 2000) (hereinafter IPI Criminal4th No. 22.28). During closing arguments, defendant's counsel attempted to attach an additionalelement to this list, namely, that defendant was in custody for the commission of a felony. Theoffense of retail theft (720 ILCS 5/16A--3 (West 2000)) can be either a felony or misdemeanor,depending on the value of the stolen property or if the defendant has prior convictions (720 ILCS5/16A--10 (West 2000)).

Here, the proper approach for defendant to voice his belief that the State was required toprove an additional element was to object to the issues instruction as given and to offer alternativeinstructions to the trial court. People v. Pisani, 180 Ill. App. 3d 812, 817 (1989). However,defendant did not object at trial to these instructions, nor did he offer any alternative instructions. When a party does not object at trial to a claimed error in jury instructions and fails to offeralternative instructions, he waives the question on appeal. Pisani, 180 Ill. App. 3d at 817.

Defendant requests that we apply the plain-error exception to the waiver rule. Whereinstructions do not describe any criminal act or conduct or fail to define a material element of theoffense, they constitute plain error. People v. Ogunsola, 87 Ill. 2d 216, 222 (1981). We believe theinstructions given did not constitute error. Rather, they adequately informed the jury of both thenature of the criminal act and the elements necessary to support defendant's conviction. Similarto our conclusion on probable cause, we find that the nature of the offense for which defendant wasin custody at the time of his escape, either felony or misdemeanor, was a question of law for the trialcourt.

People v. Cunitz, 45 Ill. App. 3d 165 (1977), is instructive on this issue. In Cunitz, thedefendant was serving a sentence for felony theft. Cunitz, 45 Ill. App. 3d at 167. While in thecounty jail, the defendant and three others overpowered the jailer and escaped from the jail. Cunitz,45 Ill. App. 3d at 167. In the process, the prisoners ransacked the booking room and stoleapproximately $355, along with some knives and watches. Cunitz, 45 Ill. App. 3d at 168. Thedefendant was eventually caught, brought to trial, and convicted on the charges of felony theft andfelony escape. Cunitz, 45 Ill. App. 3d at 168.

On appeal, the defendant, inter alia, challenged the convictions on the grounds that neitherthe instructions nor the verdict forms informed the jury of all of the material elements of theoffenses charged. Cunitz, 45 Ill. App. 3d at 168-71. On felony theft, the defendant asserted thatthe instructions should have informed the jury that the value of the stolen property was a materialelement of the offense. Cunitz, 45 Ill. App. 3d at 168. The Appellate Court, Fifth District, agreedwith the defendant that the value of the stolen items was a material element of the offense of felonytheft and that the jury had not been apprised of that element. Cunitz, 45 Ill. App. 3d at 170. Thecourt determined that the jury made no specific finding of the value of the stolen goods and,consequently, the verdict rendered did not support a conviction of felony theft. Cunitz, 45 Ill. App.3d at 170.

Then, on felony escape, charged under section 31--6(a) (escape from a penal institution),the defendant averred that neither the issues instructions nor the jury verdict forms provided anyindication that he was incarcerated for a felony at the time of his escape. Cunitz, 45 Ill. App. 3d at170-71. Thus, he argued that the jury did not determine a material element of the offense and thatthe verdict supported only a conviction of misdemeanor escape. Cunitz, 45 Ill. App. 3d at 170-71.

The court held that "[p]roof that defendant was in a penal institution for a felony at the timeof his escape is the essential element that distinguishes the offense of felony escape frommisdemeanor escape." Cunitz, 45 Ill. App. 3d at 171. Even so, the court continued by stating:

"Although this element of felony escape was not presented for jury determination, wehave nevertheless determined that no error occurred. We have reached this conclusionbecause the nature of the offense for which defendant was incarcerated at the time of hisescape, either felony or misdemeanor, is a question of law, not of fact. As such, it is to bedetermined by the court, not the jury, and consequently defendant has not been deprived ofhis constitutional right to a jury trial." Cunitz, 45 Ill. App. 3d at 171.

The court then stated that it would be good practice for the trial court to instruct the jury thatthe defendant at the time of the incident was incarcerated for a felony and that a person who escapesfrom confinement when incarcerated for a felony is guilty of felony escape. Cunitz, 45 Ill. App. 3dat 171-72. However, the appellate court found that the failure to give such an instruction washarmless because the "nature of the crime for which defendant was confined at the time of hisescape is, after all, immaterial to the question of whether an escape was made." Cunitz, 45 Ill. App.3d at 172. The proof of the felony nature of the crime for which the defendant was held could besubmitted to and determined from the record by the trial court at the time of sentencing. Cunitz,45 Ill. App. 3d at 172.

Thus, based on our examination of Cunitz, we agree with defendant that the characterizationof the underlying offense as a felony or misdemeanor is a material element of escape. BeyondCunitz, this point is supported by both the plain language of section 31--6(c) and People v. Frazier,274 Ill. App. 3d 990, 992 (1995). However, we disagree that this was a question for the jury todecide. The nature of the retail theft offense, either felony or misdemeanor, for which defendantwas in custody at the time of his escape was a question of law. Thus, it was the trial court's placeto decide this issue. It did not fall within the domain of the jury.

On a related note, we have observed that at least one case from Pennsylvania,Commonwealth v. Janis, 400 Pa. Super. 280, 583 A.2d 495 (1990), has held that, in a factualsituation similar to that in the present case, the police officers must have actual knowledge of thedefendant's prior convictions at the time of the escape in order to sustain the charge of felonyescape. Janis, 400 Pa. Super. at 285, 583 A.2d at 498. However, following the proper constructionof the Illinois escape statute, we find that section 31--6(c) does not require the custodial policeofficers to have actual knowledge of the defendant's prior convictions at the time of escape in orderto sustain a charge of felony escape.

Once again, section 31--6(c) states in part that "[a] person in the lawful custody of a peaceofficer for the alleged commission of a felony offense and who intentionally escapes from custodycommits a Class 2 felony." (Emphasis added.) 720 ILCS 5/31--6(c) (West 2000). The Frazier courthelped define "alleged commission" by stating that the phrase indicates that there has been noconviction of a criminal offense prior to the escape. Frazier, 274 Ill. App. 3d at 992. The Codedefines a felony as "an offense for which a sentence to death or to a term of imprisonment in apenitentiary for one year or more is provided." 720 ILCS 5/2--7 (West 2000). Also, under theCode, an offense "means a violation of any penal statute of this State." 720 ILCS 5/2--12 (West2000).

In this case, we do not believe that section 31--6(c) required the police to know ofdefendant's prior convictions before the escape. At the time defendant escaped from police custody,he had already allegedly committed the offense of felony retail theft. Consequently, he hadallegedly committed the offense, retail theft under section 16A--3 of the Code (720 ILCS 5/16A--3(West 2000)), and, in any subsequent prosecution for that offense, it would be classified as a felonyunder section 16A--10(2) of the Code (720 ILCS 5/16A--10(2) (West 2000)). Indeed, all of therequisite facts were in place, and the felony nature of the underlying offense as a material elementof section 31--6(c) existed at the time of defendant's escape. We recognize that the bookingprocedures may not have advanced to the point to allow the police to articulate the felony natureof defendant's act of retail theft. The fact remains, the police held defendant for the "allegedcommission" of the offense of retail theft and, given defendant's prior convictions at the time of theincident, the offense was a felony under section 16A--10(2) of the Code.

As a practical matter, it would make little sense to apply the statute in a way that wouldencourage defendant's escape. If we adopted the Janis view, we would essentially be rewarding thegood timing of defendant's escape. The escape statute clearly does not intend such a result. Accordingly, we reject the view advanced in Janis.

As a final point on this issue, the appellate court noted in Cunitz that proof of the nature ofthe crime for which the defendant was held in custody could be submitted to and determined fromthe record by the trial court at the time of sentencing. It is clear from the record that the trial courtjustifiably concluded that defendant's offense qualified as a felony based on his prior convictions.

In his last argument, defendant asserts for the first time that he was denied a fair trialbecause the jury saw him in leg irons before he took the stand to testify. We deem this issuewaived.

To preserve an alleged error that could have been raised during trial, the defendant mustmake a trial objection and file a written posttrial motion raising the issue. People v. Enoch, 122 Ill.2d 176, 186 (1988). Failure to meet this requirement results in waiver of the alleged error. Enoch,122 Ill. 2d at 186. Here, this alleged error was not objected to at trial or included in defendant'sposttrial motion for a new trial. Consequently, the issue is waived.

For the aforementioned reasons, we affirm the judgment of the circuit court of StephensonCounty.

Affirmed.

HUTCHINSON, P.J., and GILLERAN JOHNSON, J., concur.