dissenting:
I respectfully dissent from the majority’s holding that under People v. Bryant (1986), 113 Ill. 2d 497, “resisting arrest is a lesser included offense of aggravated battery” and that defendant was therefore entitled to an instruction he requested on the offense of resisting arrest. See 195 Ill. App. 3d at 130.
In Bryant, our supreme court, relying on its decision in People v. Dace (1984), 104 Ill. 2d 96, held that an instruction tendered by the defendant therein for the less serious offense of criminal damage to property should have been given by the trial judge where the indictment charged the defendant with attempted burglary, specifically alleging defendant pulled away a screen and broke a window. (Bryant, 113 Ill. 2d at 505-07.) The court reasoned that the lesser offense must have a broad foundation in the instrument charging the greater offense, but that the charging instrument need not expressly allege all the elements of the lesser offense. 113 Ill. 2d at 505.
I have found no Illinois case addressing the issue of whether, applying the Bryant rationale, the offense of resisting or obstructing a peace officer is a lesser offense of aggravated battery alleged, as here, to be committed by causing bodily harm in a certain way to one known to be a peace officer engaged in the execution of his official duties. It is also clear that looking at the offense of aggravated battery as charged, resisting or obstructing a peace officer is not a lesser included offense, as the offense charged does not include every element of the lesser offense, plus an additional element or elements. See People v. Stroner (1983), 96 Ill. 2d 204, 209.
In Dace, the lesser offense, theft, was stated in the charging instrument and, together with evidence introduced at trial, was sufficient to warrant an instruction on the lesser offense of theft, where residential burglary only had been charged. (Dace, 104 Ill. 2d at 102-03.) In Bryant, the property damage to the building, which was the foundation for the lesser charge of criminal damage to property, was set out in the instrument charging the greater offense of attempted burglary and was consistent with the evidence at trial, which could arguably support a guilty verdict on the lesser offense. Bryant, 113 Ill. 2d at 505.
In the case at bar, however, the offense of resisting or obstructing a peace officer does not have a broad foundation in the instant information, which charges defendant with causing “bodily harm to Bruce Dayno, in that he kneed Bruce Dayno in the groin and bit Bruce Dayno on the finger.” The act of kneeing and biting Officer Dayno would not necessarily constitute the offense of resisting or obstructing a peace officer. Unlike in Bryant, where the charging instrument alleged damage to a screen and a window which would necessarily provide the foundation for a charge of criminal damage to property, the allegations of kneeing and biting Dayno do not alone necessarily provide a foundation for a charge of resisting or obstructing a peace officer under the circumstances here.
Furthermore, the instruction tendered by defendant only required proof, inter alia, that defendant “knowingly resisted or obstructed the performance by Bruce Dayno of an authorized act within his official capacity” and did not specify the acts of kneeing and biting as alleged in the information. Thus, the instruction requested by defendant does not specify the very, conduct relied upon by him in arguing that the information sets forth the lesser offense of resisting or obstructing a peace officer. Such a generalized instruction, as tendered here, would only serve to confuse the jury and unnecessarily inject issues into the case. (See People v. Taylor (1983), 112 Ill. App. 3d 3, 5.) Further, it is defendant’s duty to tender a proper instruction on a particular issue at trial. (People v. Smith (1978), 71 Ill. 2d 95, 104.) Thus, the specific acts specified in the aggravated battery information were not the foundation for the tendered instruction for the offense of resisting or obstructing a peace officer. Accordingly, under the circumstances, I conclude that the trial judge properly refused the tendered instruction for resisting or obstructing a peace officer.
One final note. The State argues that the Dace/Bryant rationale has been discredited in People v. Schmidt (1988), 126 Ill. 2d 179, which held that “where an accused is charged with a single offense he cannot be found guilty of an offense not charged unless it is a lesser included offense.” (126 Ill. 2d at 184-85.) The court further observed that “in Dace the fundamental question just stated was not presented to or considered by the court.” (126 Ill. 2d at 185.) Defendant responds to this argument by conceding that the Schmidt opinion calls into question the Dace and Bryant holdings and that the cases cannot be reconciled.
I, too, am uncertain whether the Dace/Bryant rationale still has vitality where the offense is not a lesser included offense under the generally accepted analysis set forth in People v. Stroner (1983), 96 Ill. 2d 204, 209, which focuses upon the crime charged to determine if all of the elements of the lesser crime are included in the greater crime. Thus, if as the State argues, the Dace/Bryant approach is no longer viable and Schmidt controls, then defendant was not entitled to an instruction on resisting or obstructing a peace officer because he was not charged with that offense and it is not a lesser included offense of aggravated battery. Given the difficulties the trial and appellate courts are having applying the Dace/Bryant approach, the decision in Schmidt should control.
For the foregoing reasons, I would find no error on this issue. The second instructional issue raised by defendant was not raised at trial and is waived (People v. Berry (1984), 99 Ill. 2d 499, 503); nor is it recognizable as grave error pursuant to Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c)). Accordingly, I would affirm the judgment below.