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04/12/88 the People of the State of v. Thomas J. Brouder

April 12, 1988





523 N.E.2d 100, 168 Ill. App. 3d 938, 119 Ill. Dec. 632 1988.IL.509

Appeal from the Circuit Court of Cook County; the Hon. William Prendergast, Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.


The defendant, Thomas Brouder, was charged with one count of telephone harassment and one count of resisting arrest. Following a jury trial, defendant was acquitted of telephone harassment but found guilty of resisting arrest. The trial court sentenced defendant to one year's conditional discharge conditioned upon 30 days of community service and two fines: a $70 fine and a $20 Violent Crime Victims Assistance Fund fine. Defendant appeals. We reverse and remand.

Defendant raises seven contentions on appeal. In view of the fact that we are reversing and remanding this case to the trial court on the basis of jury instructions, we will address only those arguments which are relevant. First, we find that the complaint sufficiently set forth the nature and elements of the resisting arrest charge. Second, we hold that the evidence adduced at trial was sufficient to find defendant guilty beyond a reasonable doubt of resisting arrest. Third, we find that Officer Niesluchowski's use of the phrase "he resisted us" should not have been admitted into evidence. Fourth, we find that the trial court did not err when it precluded cross-examination of Officer Gordon regarding defendant being a prominent real estate broker in the area and whether Officer Gordon knew that defendant was a Kiwanis leader who had helped to purchase booking equipment for the local police station.

Finally, we reverse and remand the judgment of the trial court on the ground that it was reversible error for the trial court to refuse to give defendant's tendered instruction defining "knowingly" after the jury expressed confusion over the term "knowing resistance." I. THE COMPLAINT

The complaint adequately set forth the nature and elements of the resisting arrest charge. Defendant was charged with resisting arrest. The complaint against defendant read as follows:

"Thomas J. Brouder . . . committed the offense of Resisting A Peace Officer in that he knowingly resisted the performance by Patrolman Robert W. Gordon, known by him to be a peace officer, of an authorized act, said officer was attempting to make a lawful arrest within the official capacity of said peace officer, to wit, officer advised the defendant that he was under arrest due to a signed complaint, defendant refused to be handcuffed by said officer and had to be bodily pushed down to be restrained while handcuffs were placed on the defendant. This occurred in the Village of Riverside, County of Cook, State of Ill. in violation of Chapter 38 Section 31 -- 1 Illinois Revised Statutes."

After the jury returned a verdict against defendant on the resisting arrest charge, he filed a motion in arrest of judgment. The trial court denied defendant's motion. On appeal, defendant contends that the trial court erred in denying this motion. Specifically, defendant contends that the complaint failed to describe with particularity the acts that constituted resistance or obstruction.

In Illinois, separate rules govern the sufficiency of a complaint first attacked on appeal and one which is attacked by a motion in arrest of judgment. (People v. Lutz (1978), 73 Ill. 2d 204, 209-10, 383 N.E.2d 171; People v. Deal (1979), 69 Ill. App. 3d 74, 77, 387 N.E.2d 21.) Where a defendant files a timely motion in arrest of judgment, the issue is whether the complaint sufficiently states the necessary elements of the offense set forth in section 111-3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 111-3) so that the language of the complaint apprises defendant with reasonable certainty of the precise offense with which he is charged. (People v. Miles (1981), 96 Ill. App. 3d 721, 725, 422 N.E.2d 5.) Section 111-3a requires that a charge must: (1) state the name of the offense; (2) cite the statutory provision allegedly violated; (3) set forth the nature and elements of the offense charged; (4) state the date and county of the offense, and (5) state the name of the accused. (Ill. Rev. Stat. 1983, ch. 38, par. 111-3.) "While the cases in this State have stopped short of requiring absolute compliance with each step, they nonetheless require that a charging instrument give notice of the elements of a charge and particularize it sufficiently with allegations of the essential facts to enable the accused to prepare a defense which, if successful, would bar further prosecution for the same offense." People v. Smith (1984), 99 Ill. 2d 467, 471, 459 N.E.2d 1357.

Defendant cites two cases to support his position that the complaint against him did not sufficiently set forth the specific acts which led to the resisting arrest charge. (See People v. Fox (1983), 117 Ill. App. 3d 1084, 454 N.E.2d 824; People v. Leach (1972), 3 Ill. App. 3d 389, 279 N.E.2d 450.) In Fox, defendants were charged with obstructing a peace officer. The information charged that defendants committed "the offense of OBSTRUCTING A PEACE OFFICER, in that they then and there knowing Myron Deckard to be a peace officer did knowingly obstruct said officer by attempting to conceal the whereabouts of Joe L. Pate after being informed that said officer had a warrant for the arrest of Joe L. Pate." (Emphasis in original.) (Fox, 117 Ill. App. 3d at 1085.) In finding that the information failed to state an offense, the trial court granted defendants' motion to dismiss. The State appealed.

On appeal, the issue was whether a charge alleging the offense of obstructing a peace officer must contain language describing the specific physical acts of defendant. In affirming the trial court, the appellate court held that a description of a defendant's physical acts must be alleged and that the phrase "attempting to conceal the whereabouts" did not ...

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