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
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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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