                        Illinois Official Reports

                               Appellate Court



                   People v. Wrencher, 2015 IL App (4th) 130522



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            RAYMOND WRENCHER, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-13-0522



Filed              April 30, 2015
Rehearing denied   May 28, 2015



Decision Under     Appeal from the Circuit Court of Champaign County, No. 07-CF-954;
Review             the Hon. Heidi N. Ladd, Judge, presiding.



Judgment           Affirmed.




Counsel on         Michael J. Pelletier, of State Appellate Defender’s Office, of
Appeal             Springfield, and Thomas A. Lilien and Rikin Shah, both of State
                   Appellate Defender’s Office, of Elgin, for appellant.

                   Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                   Robinson, and Linda Susan McClain, all of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE APPLETON delivered the judgment of the court, with
                              opinion.
                              Justices Turner and Harris concurred in the judgment and opinion.


                                               OPINION

¶1         A jury found defendant, Raymond Wrencher, guilty of two counts of aggravated battery
       (720 ILCS 5/12-4(b)(18) (West 2006)), for which the trial court sentenced him to a total of 14
       years’ imprisonment (7 years for each count). On direct appeal, we affirmed the trial court’s
       judgment. People v. Wrencher, 2011 IL App (4th) 080619.
¶2         Later, in October 2011, defendant filed a petition for postconviction relief, and in April
       2012, appointed counsel filed an amended petition. The amended petition claimed that trial
       counsel, Anthony Ortega, had rendered ineffective assistance by failing to advise defendant he
       had the option of tendering a jury instruction on a lesser included offense, resisting a peace
       officer (720 ILCS 5/31-1(a), (a-7) (West 2006)). The postconviction proceeding advanced to
       the third stage, in which, after hearing evidence, the trial court denied the amended petition.
       Defendant appeals.
¶3         We affirm the trial court’s judgment because, in our de novo review, we find the trial
       record devoid of any evidence that could have justified a conviction of resisting a peace officer
       and a simultaneous acquittal of aggravated battery.

¶4                                         I. BACKGROUND
¶5                                         A. The Information
¶6        The information, filed on June 5, 2007, had two counts, both charging defendant with
       aggravated battery (720 ILCS 5/12-4(b)(18) (West 2006)). Count I alleged:
              “[O]n June 5, 2007, *** [defendant] committed the offense of aggravated
              battery–Class 2 felony, in that the said defendant, in committing a battery, in violation
              of [section 12-3 of the Criminal Code of 1961 (720 ILCS 5/12-3 (West 2006))],
              knowingly caused bodily harm to Officer Gregory Manzana, Champaign Police
              Department, in that the defendant dug his fingernails into Officer Gregory Manzana’s
              hand, knowing Officer Gregory Manzana to be a peace officer, engaged in the
              execution of his official duties ***.”
¶7        Count II alleged:
              “[O]n June 5, 2007, *** [defendant] committed the offense of aggravated
              battery–Class 2 felony, in that the said defendant, in committing a battery, in violation
              of [section 12-3 of the Criminal Code of 1961 (720 ILCS 5/12-3 (West 2006))],
              knowingly made physical contact of an insulting or provoking nature with Officer
              Mark Briggs, Champaign Police Department, in that the defendant sp[a]t blood on
              Officer Mark Briggs[’s] hand, knowing Officer Mark Briggs to be a peace officer,
              engaged in the execution of his official duties ***.”



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¶8                              B. The Evidence in the Jury Trial (June 2008)
¶9          A Champaign police officer, Gregory Manzana, testified that on June 5, 2007, he went to
       408 West Maple Street in response to a report of a domestic dispute. He arrived in a marked
       squad car and in full uniform. He saw a car, in the driveway, with its engine running, and he
       pulled in behind the car so it could not back out. He shone his spotlight on the car, and the car
       appeared to be occupied by four to six individuals. These individuals began exiting the car, and
       Manzana ordered everyone to get back in.
¶ 10        Defendant ignored the order and continued to walk away. Manzana approached him and
       ordered him to put his hands behind his back. Defendant kept walking, showing no inclination
       to comply. Manzana grabbed him by the arm, and defendant tried to pull away. Another
       officer, Ferguson, grabbed defendant’s other arm. Defendant struggled with them. Over and
       over again, Manzana yelled at defendant to get down onto the ground, but defendant spread his
       legs and braced himself, resisting their efforts to take him down. Finally, Manzana brought
       defendant to the ground by tripping him. The officers then succeeded in forcing defendant’s
       arms behind his back and putting handcuffs on him.
¶ 11        Several other police officers arrived and kept defendant pinned to the ground while
       Manzana went to check on the woman who had called in. After speaking with her, Manzana
       returned to defendant.
¶ 12        Manzana testified:
                    “A. He was yelling[,] and he was still on the ground[,] there in the street. At that
                point[,] *** we decided to go ahead and move him to the squad car. I took his right
                hand with my left hand and grabbed his right arm with my right hand, like around the
                bicep, and we picked him up, brought him up to his feet.
                    Q. What happened next?
                    A. At that point[,] he looked me directly in the eye, kind of–he tensed up, I could
                see his jaw clench, his shoulders kind of tensed up, next thing I know [,] he started
                squeezing my hand and gripping into it and digging his nails into my fingers.
                    Q. What happened next?
                    A. *** I tried to pull my hand away[,] and his grip was too strong. I couldn’t pull it
                away, so I gave him a couple of diversionary strikes to the stomach[,] and he
                immediately let go, and I was able to pull my hand off.
                    Q. Now[,] when the defendant *** had a hold of your hand, did that cause you any
                pain?
                    A. Yes.
                    Q. Could you explain?
                    A. *** [H]e was squeezing the heck out of my hand there, and it felt *** like his
                nails were cutting into my skin there, and it just [was] like *** somebody is just trying
                to crunch your hand there ***.”
¶ 13        Manzana testified that after defendant let go of his hand, the tips of his middle ring finger
       and little finger of his left hand were red and throbbing and he had a cut on the inside of his
       little finger. People’s exhibit No. 4 was a photograph of a small laceration on the tip of
       Manzana’s little finger. He testified that defendant had inflicted this injury.


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¶ 14       After Manzana freed himself from defendant’s grasp, other police officers escorted
       defendant to the squad car. Defendant sat down in the squad car but refused to put his legs in.
       He kicked at officers. Manzana warned him to stop resisting or he would use pepper spray.
       Defendant replied to go ahead, and he resumed kicking at the officers. Manzana gave him a
       one-second burst of pepper spray.
¶ 15       Mark Briggs testified that after Manzana applied the pepper spray, defendant stopped
       kicking at the officers but still refused to put his legs inside the squad car. An officer went
       around to the driver’s side, grabbed defendant by the arms, and pulled him the rest of the way
       into the squad car so that they could shut the rear passenger door. Defendant immediately
       started thrashing around and kicking. Concerned that defendant might kick out the windows,
       Briggs asked the other officers if they had leg restraints. They had none with them. Leg
       restraints had to be brought to the scene. In the meantime, Briggs talked to defendant and tried
       to calm him down.
¶ 16       When the leg restraints arrived, defendant stepped out of the squad car as directed. Briggs
       testified:
                “I turned him around, had him face the trunk. He is standing on the driver’s side of the
                car at this point. Officer Shipley stepped up, applied the leg restraints, double[-]locked
                them so they wouldn’t tighten down on his ankles, and then[,] all of a sudden[,]
                [defendant] turned and spit a mouth full of blood and pepper spray across the front of
                my shirt.”
¶ 17       Briggs identified People’s exhibit No. 1 as a photograph of his uniform shirt. He testified
       the photograph was taken immediately after defendant spat on him and that it showed blood on
       the front of the shirt and down the left sleeve.
¶ 18       Defendant took the stand and denied digging his fingernails into Manzana’s hand and
       denied spitting on Briggs. He insisted he had no knowledge of how blood had got on Briggs’s
       shirt.
¶ 19       The jury found defendant guilty of both counts of aggravated battery.

¶ 20                                           II. ANALYSIS
¶ 21                                     A. Is the Claim Forfeited?
¶ 22       In his amended petition for postconviction relief, defendant claimed that his trial counsel,
       Anthony Ortega, rendered ineffective assistance by neglecting to give him some important
       advice. The omitted advice was that, in the jury instruction conference, defendant could tender
       an instruction on a lesser included offense, resisting a peace officer (720 ILCS 5/31-1(a), (a-7)
       (West 2006)). The supreme court has held it should be the defendant’s personal decision
       whether to tender a jury instruction on a lesser included offense. People v. Brocksmith, 162 Ill.
       2d 224, 229-30 (1994). Obviously, defendant could not have made that personal decision
       unless he was aware of the option of tendering such an instruction. He accuses Ortega of being
       ineffective by failing to advise him of that option.
¶ 23       The State’s initial response is that because defendant failed to raise this claim on direct
       appeal, we should regard this claim as forfeited. See People v. English, 2013 IL 112890, ¶ 22.
       On direct appeal, however, the record had nothing to say, one way or the other, as to whether
       Ortega had explained to defendant his right to tender a jury instruction on the lesser included
       offense of resisting a peace officer. Unless defendant could have pointed to some evidence in

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       the record that Ortega had indeed omitted this advice and that defendant consequently was
       ignorant of his right, it would have been impossible for him to raise the claim on direct appeal.
       In an appellate brief, when making representations and arguments, a party must cite the
       pertinent pages of the record. Ill. S. Ct. R. 341(h)(6), (h)(7) (eff. Feb. 6, 2013). “[G]enerally, a
       party may not rely on matters outside the appellate record to support his or her position on
       appeal.” Kildeer-Countryside School District No. 96 v. Board of Trustees of the Teachers’
       Retirement System, 2012 IL App (4th) 110843, ¶ 21. (Matters of which a court may take
       judicial notice are an exception. Brotherhood of Locomotive Firemen & Enginemen v. New
       York Central R.R. Co., 339 Ill. 201, 206 (1930).) Because an appellant generally is limited to
       the record, omitting a claim in the direct appeal will not result in a forfeiture of the claim in a
       subsequent postconviction proceeding if the record on direct appeal did not provide the means
       of raising the claim. English, 2013 IL 112890, ¶ 22. Thus, we disagree with the State’s
       contention of forfeiture.

¶ 24                    B. Is Resisting a Peace Officer a Lesser Included Offense?
¶ 25       Omitting to tell defendant about the option of tendering a jury instruction on resisting a
       peace officer was ineffective assistance only if tendering such an instruction would have been
       legally meritorious. In other words, Ortega can be faulted for omitting such advice only if he
       could have argued to the trial court, correctly, that resisting a peace officer was included in
       aggravated battery (720 ILCS 5/12-4(b)(18) (West 2006)). See People v. Segoviano, 189 Ill. 2d
       228, 246-47 (2000).
¶ 26       As we will discuss more fully in a moment, that is not the only proposition Ortega would
       have had to argue to the trial court. He also would have had to argue, correctly, that at least
       some slight evidence had been adduced to support a jury instruction on resisting a peace officer
       as an alternative to aggravated battery. See People v. Baldwin, 199 Ill. 2d 1, 14 (2002); People
       v. Jones, 175 Ill. 2d 126, 132 (1997). But let us first consider the question of whether resisting
       a peace officer is included in aggravated battery.
¶ 27       Section 31-1(a) of the Criminal Code of 1961 defines the offense of resisting a peace
       officer as follows: “A person who knowingly resists or obstructs the performance by one
       known to the person to be a peace officer or correctional institution employee of any
       authorized act within his official capacity commits a Class A misdemeanor.” 720 ILCS
       5/31-1(a) (West 2006). Thus, the Class A misdemeanor of resisting a peace officer has two
       elements. First, the defendant knowingly resisted or obstructed the peace officer’s
       performance of any authorized act within his or her official capacity. Second, the defendant
       knew the peace officer was a peace officer.
¶ 28       Now we will compare those statutory elements to the greater offense, aggravated battery
       (720 ILCS 5/12-4(b)(18) (West 2006)), as it is described in the charging instrument. See
       Baldwin, 199 Ill. 2d at 8. That is, we will use “the charging instrument approach.” People v.
       Novak, 163 Ill. 2d 93, 112 (1994). (By contrast, if the question were whether the one-act,
       one-crime rule allowed convictions of multiple offenses, all of them charged, we would use the
       “abstract-elements approach,” which would be strictly a comparison of statutory elements.
       People v. Stull, 2014 IL App (4th) 120704, ¶ 63.) Under the charging instrument approach, the
       charging instrument need not expressly allege all the elements of the lesser offense; it is
       enough if the elements could be reasonably inferred from the language of the charging
       instrument. Baldwin, 199 Ill. 2d at 8.

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¶ 29       Again, count I of the information reads as follows:
                “[O]n June 5, 2007, *** [defendant] committed the offense of aggravated
                battery–Class 2 felony, in that the said defendant, in committing a battery, in violation
                of [section 12-3 of the Criminal Code of 1961 (720 ILCS 5/12-3 (West 2006))],
                knowingly caused bodily harm to Officer Gregory Manzana, Champaign Police
                Department, in that the defendant dug his fingernails into Officer Gregory Manzana’s
                hand, knowing Officer Gregory Manzana to be a peace officer, engaged in the
                execution of his official duties ***.”
¶ 30       Count I expressly alleges that defendant knew Manzana to be a peace officer. See 720
       ILCS 5/31-1(a) (West 2006). Count I does not expressly allege, however, that defendant
       knowingly resisted or obstructed Manzana in his performance of an authorized act in his
       official capacity. See id. Nevertheless, count I alleges that defendant committed a battery,
       defined as knowingly causing bodily harm or knowingly making physical contact of an
       insulting or provoking nature (720 ILCS 5/12-3 (West 2006)). In context, the knowing
       causation of bodily harm could be only the gouging with fingernails. Count I alleges that when
       defendant gouged Manzana with his fingernails, defendant knew Manzana was engaged in the
       execution of his official duties. When executing his official duties, Manzana necessarily was
       performing an authorized act in his official capacity. See 720 ILCS 5/31-1(a) (West 2006).
       Executing a duty entails doing some kind of act. Being gouged by fingernails increases the
       difficulty of whatever act one happens to be doing at the time. Therefore, a reasonable
       inference, from count I, is that defendant knowingly resisted or obstructed Manzana in his
       performance of an authorized act in his official capacity by digging his fingernails into
       Manzana’s hand, knowing him to be a peace officer engaged in the execution of his official
       duties. See Baldwin, 199 Ill. 2d at 8. We conclude, then, in our de novo review of this issue (see
       People v. Kolton, 219 Ill. 2d 353, 361 (2006)), that the lesser offense of resisting a peace
       officer (720 ILCS 5/31-1(a) (West 2006)) is indeed included in count I, which alleges the
       greater offense of aggravated battery (720 ILCS 5/12-4(b)(18) (West 2006)).
¶ 31       Now let us turn to count II. Again, it reads as follows:
                “[O]n June 5, 2007, *** [defendant] committed the offense of aggravated
                battery–Class 2 felony, in that the said defendant, in committing a battery, in violation
                of [section 12-3 of the Criminal Code of 1961 (720 ILCS 5/12-3 (West 2006))],
                knowingly made physical contact of an insulting or provoking nature with Officer
                Mark Briggs, Champaign Police Department, in that the defendant sp[a]t blood on
                Officer Mark Briggs[’s] hand, knowing Officer Mark Briggs to be a peace officer,
                engaged in the execution of his official duties ***.”
¶ 32       Spitting on someone is an act of contempt or provocation, not, typically, an act of
       resistance or obstruction. We cannot reasonably infer that when defendant spat on Briggs’s
       shirt, he knew he thereby would obstruct Briggs from doing anything. All we can reasonably
       infer is that he knew Briggs would be disgusted and provoked. Therefore, because an essential
       element of resisting a peace officer–knowing resistance or obstruction–cannot reasonably be
       inferred from the language of count II, resisting a peace officer is not included in count II,
       although it is included in count I. See Baldwin, 199 Ill. 2d at 8.




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¶ 33                         C. Was There Some Slight Evidence To Support
                               an Instruction on Resisting a Peace Officer?
¶ 34       The analysis does not stop with the conclusion that resisting a peace officer is included in
       count I. The claim of ineffective assistance also depends on another, separate question: In the
       jury trial, was any evidence adduced, even “[v]ery slight evidence” (Jones, 175 Ill. 2d at 132),
       that would have supported a conviction of resisting a peace officer in lieu of a conviction of
       aggravated battery as alleged in count I (see People v. Landwer, 166 Ill. 2d 475, 486 (1995))?
       “[A] court must examine the evidence presented at trial to determine whether a jury could
       rationally find the defendant guilty of the lesser offense, but acquit on the greater offense.” Id.
       (There is, perhaps, a contradiction between the generous criterion of “[v]ery slight evidence”
       (Jones, 175 Ill. 2d at 132) and the more demanding criterion of rationality (Landwer, 166 Ill.
       2d at 486), but this appeal does not require us to address that contradiction.)
¶ 35       This is not to say we should indiscriminately troll through the record for any evidence at all
       of resisting a peace officer. Due process limits us to the conduct that count I alleges. See
       Baldwin, 199 Ill. 2d at 12. So, a more precise way of framing the question is as follows: Would
       it have been rationally defensible to find that by knowingly digging his fingernails into
       Manzana’s hand, defendant committed the offense of resisting a peace officer but not the
       offense of aggravated battery? (Because the act of obstructing Manzana had to be knowing for
       purposes of resisting a peace officer (720 ILCS 5/31-1(a) (West 2006)), the act that did the
       obstructing, digging his fingernails into Manzana’s hand, had to be knowing.) The answer is no
       because by knowingly digging his fingernails into Manzana’s hand, defendant necessarily
       committed aggravated battery. Digging his fingernails into Manzana’s hand, for purposes of
       resisting a peace officer, necessarily caused “bodily harm,” for purposes of aggravated battery,
       because to “dig,” by definition, is to “drive down so as to penetrate”–in this instance, the skin
       (Merriam-Webster’s Collegiate Dictionary 323 (10th ed. 2000)). Thus, it would have been
       rationally impossible to acquit defendant of aggravated battery as alleged in count I while
       convicting him of resisting a peace officer. It follows that although resisting a peace officer
       was indeed included in count I, as defendant argues, Ortega nevertheless was justified in
       refraining from presenting to defendant the option of tendering a jury instruction on resisting a
       peace officer, because not even the slightest evidence would have supported a conviction of
       resisting a peace officer and a simultaneous acquittal of aggravated battery as alleged in count
       I. Although there was evidence that defendant resisted Manzana by digging his fingernails into
       Manzana’s hand, that very act sealed his conviction of aggravated battery.
¶ 36       In sum, defendant’s theory that he was entitled to a jury instruction on the lesser included
       offense of resisting a peace officer (and hence his theory of ineffective assistance of trial
       counsel) stumbles on the second step, the step of “examin[ing] the evidence presented at trial
       to determine whether a jury could rationally find the defendant guilty of the lesser offense, but
       acquit on the greater offense.” Landwer, 166 Ill. 2d at 486.
¶ 37       A case on which defendant relies, People v. Pedersen, 195 Ill. App. 3d 121 (1990), skipped
       that crucial second step and consequently fell into error. In Pedersen, the information charged
       the defendant with aggravated battery (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-4(b)(6)) “ ‘in that he
       kneed Bruce Dayno in the groin and bit Bruce Dayno on the finger[,] knowing Bruce Dayno to
       be a peace officer engaged in the execution of his official duties.’ ” Pedersen, 195 Ill. App. 3d
       at 129. The bite inflicted a cut on Dayno’s finger, for which he received treatment at the
       hospital. Id. at 124. The Second District reasoned that although the information did not

                                                    -7-
       expressly state that the defendant had committed an act that resisted or obstructed Dayno in the
       performance of his duties, a reasonable inference was that the kneeing and the biting had
       resisted or obstructed Dayno. Id. at 129-30. Therefore, the Second District concluded that
       resisting a peace officer was included in aggravated battery as described in the information. Id.
       at 130.
¶ 38       So far, so good, but then the Second District proceeded immediately to the further
       conclusion that the defendant was entitled to an instruction on resisting a peace officer:
               “Therefore, we agree with the defendant that *** resisting arrest is a lesser included
               offense of aggravated battery. The defendant was entitled to an instruction on the lesser
               included offense of resisting a police officer, and, therefore, the judgment must be
               reversed and the cause remanded for a new trial.” Id.
¶ 39       The problem with that passage is it forgets to consider whether a conviction of resisting a
       peace officer and a simultaneous acquittal of aggravated battery would have been rationally
       possible, given the evidence. See People v. Bryant, 113 Ill. 2d 497, 507 (1986). If the
       defendant resisted Dayno by inflicting a bite injury on his finger, it is hard to see how he could
       have been acquitted of aggravated battery. As in the present case, the very act that would
       constitute resisting a peace officer would merit a conviction of the greater offense. There
       would have been no point in giving the jury an instruction on the lesser included offense of
       resisting a peace officer unless, on the basis of the evidence, the jury could have rationally
       convicted the defendant of that offense in lieu of aggravated battery.

¶ 40                                      III. CONCLUSION
¶ 41       For the foregoing reasons, we affirm the trial court’s judgment, and we award the State $50
       in costs against defendant.

¶ 42      Affirmed.




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