People v. Weathersby

2020 IL App (1st) 181505-U

Opinion

2020 IL App (1st) 181505-U No. 1-18-1505 Order filed October 23, 2020 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 21318 ) WILLIAM WEATHERSBY, ) Honorable ) Michele M. Pitman, Defendant-Appellant. ) Judge presiding.

JUSTICE GRIFFIN delivered the judgment of the court. Presiding Justice Mikva and Justice Harris concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for aggravated battery of a peace officer over his contention that the State failed to prove the indictment’s allegation that he “punched and kicked” a police officer. We also reject defendant’s contention that his conviction for resisting or obstructing a peace officer should be vacated under the one-act, one-crime rule because it was based on the same physical act as his conviction for aggravated battery.

¶2 Following a bench trial, defendant William Weathersby was convicted of aggravated

battery of a peace officer and resisting or obstructing a peace officer. The trial court sentenced

defendant to respective, concurrent terms of four and three years’ imprisonment. On appeal, he

contends that his aggravated battery conviction must be reversed because the State failed to prove No. 1-18-1505

beyond a reasonable doubt that he made contact of an insulting or provoking nature by punching

and kicking an officer, as alleged in the indictment. In the alternative, he argues that his conviction

for resisting or obstructing a peace officer should be vacated under the one-act, one-crime rule

because it was based on the same physical act as his conviction for aggravated battery. For the

following reasons, we affirm.

¶3 Defendant was charged in a 14-count indictment with 12 counts of aggravated battery to a

peace officer (720 ILCS 5/12-3.05(d)(4) (West 2014)) and two counts of resisting or obstructing a

peace officer (720 ILCS 5/31-1(a-7) (West 2014)). The State proceeded to trial on four counts of

aggravated battery: counts VII, VIII, X, and XI. Count VII alleged that defendant “knowingly

caused bodily harm to Edward Barksdale, to wit: [defendant] punched and kicked Officer

Barksdale about the body” while Barksdale “was performing his * * * official duties.” Count VIII

alleged that defendant “knowingly caused bodily harm to Edward Barksdale, to wit: [defendant]

punched and kicked Officer Barksdale about the body” and that Barksdale “was battered to prevent

performance of his * * * official duties.” The other two aggravated battery counts alleged that

defendant “made physical contact of an insulting or provoking nature with Edward Barksdale, to

wit: [defendant] punched and kicked Officer Barksdale about the body” while he was performing

his official duties (count X) and to prevent performance of his official duties (count XI). The State

also proceeded to trial on one count of resisting or obstructing a peace officer (count XIV), which

alleged that defendant “knowingly resisted or obstructed the performance” of Barksdale and was

the proximate cause of an injury to Barksdale. The State nol-prossed the remaining counts.

¶4 At trial, Barksdale testified that at on the evening of October 30, 2014, he was on patrol

with Officer Meers and Officer McCree in an unmarked vehicle. As they passed a parking lot, they

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saw defendant and another male engage in “some type of hand to hand transaction.” The officers

drove into the parking lot. Barksdale approached defendant while McCree and Meers approached

the other male. Barksdale asked defendant “if he had anything on his person that he shouldn’t

have.” Defendant responded that he had “a couple bags of weed.” Barksdale searched defendant

and recovered a bag containing smaller plastic bags with suspected cannabis.

¶5 Barksdale asked for defendant’s name and date of birth. Barksdale used a hand-held radio

to relay that information to run defendant’s name through a database. A “tone alert” came through

the radio, signaling that defendant had an active warrant. Barksdale asked defendant to turn and

place his hands behind his back. Defendant initially complied, but then dispatch related over the

radio that defendant had an active warrant for homicide. At that point, defendant “snatched away”

from Barksdale, “[s]pinned around and said I didn’t kill nobody.”

¶6 Barksdale told defendant to follow his orders. Defendant repeated that he did not kill

anyone and began “side stepping away from” Barksdale. Meers pulled out a taser and told

defendant to comply. Meers attempted to tase defendant, but due to defendant’s thick clothing the

prongs failed to connect. Defendant pulled the prongs from his clothing and started running, with

Meers in pursuit. When Meers reached out to grab defendant, defendant picked Meers “up and off

his feet and they were like hugged up.” Barksdale saw defendant punching Meers “about the body

and in the head area.”

¶7 Barksdale caught up to them in the middle of the street and screamed at defendant to stop

hitting Meers. Barksdale again told defendant to comply with the officers’ orders or he would be

tased. Barksdale attempted to tase defendant; one taser prong struck defendant in the face, but the

other prong did not connect. The three men “all began to tussle” and fell to the ground. Defendant

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punched and kicked Barksdale and Meers. Barksdale was struck “multiple times. More than

seven.” After McCree arrived, the three officers were able to handcuff defendant. Asked if he was

injured during the incident, Barksdale testified that he had “minor bruising and scrapes to [his]

knees.”

¶8 Fred Dunlap testified that he was in a restaurant parking lot with a rolled marijuana

cigarette in his mouth when he was approached by a male (later identified as defendant), whom he

did not know. An unmarked vehicle entered the parking lot, and three police officers exited. One

of the officers approached Dunlap, and the other two approached defendant. The officers asked

Dunlap and defendant to identify themselves and “ran our names” over their radio. Dunlap heard

on the radio that his name was “all clear” but that “the other guy [defendant] was wanted in

Riverdale for [a] murder.”

¶9 At that point, defendant’s “demeanor started to change” and he “moved back from the

officers.” The officers tried to stop defendant from leaving. Dunlap saw defendant and two officers

“wrestling,” and that defendant was trying to “push them off of him.” Defendant made contact

with the officers when he pushed them. The third officer placed Dunlap into the police car, and

Dunlap did not see any further interaction between defendant and the officers.

¶ 10 On cross-examination, Dunlap denied that he spoke to defendant or exchanged anything

with him before the officers arrived. Dunlap did not see defendant strike or kick any of the officers.

On redirect, Dunlap confirmed that defendant “pushed away from” the officers.

¶ 11 Defendant testified that he was walking by himself when an unmarked police vehicle

blocked his path. He denied that he said anything to Dunlap or exchanged anything with him. After

defendant gave his name to police, he heard over the radio that he had an arrest warrant for murder.

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He turned around, threw his hands up in the air, and began “pleading my case saying you got the

wrong person.” Defendant denied that he ran and stated that Barksdale pulled out a taser while his

hands were in the air. Barksdale and other officers tased him in the head, back, and chest.

Defendant was “electrocuted,” fell to the ground and could not move.

¶ 12 Defendant testified that Barksdale fell on top of him, bent defendant’s middle finger back,

and “popped [defendant’s] shoulder out of place.” The other two officers kicked and stomped on

defendant as he was on the ground. He was eventually handcuffed and taken to a hospital, where

a taser prong was removed from his face. Defendant denied that he picked up an officer or that he

punched or kicked the officers.

¶ 13 On cross-examination, defendant admitted that police recovered bags of marijuana from

him. He denied that he tried to back away from the police after he heard that there was a warrant

for his arrest.

¶ 14 Following argument, the court noted that Dunlap’s testimony corroborated much of

Barksdale’s testimony. The court found that defendant became “combative” once he heard about

the warrant, that he “fled from the police,” and that “there was a struggle with the police officers.”

¶ 15 The court proceeded to find that defendant was not guilty of the charges of aggravated

battery causing bodily harm (counts VII and VIII), but found him guilty of the remaining

aggravated battery and resisting or obstructing a peace officer counts. The court explained its

findings as follows:

“With regards to the aggravated battery charge causing bodily harm. Officer

Barksdale testified to minor bruises and scrapes to his knees. The Court find[s] the

State has not met their burden of proof to show this Court that there is bodily harm.

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I do believe * * * that the Defendant fought with the police, but there is not bodily

harm to Officer Barksdale. Therefore Counts 7 and 8 will be a finding of not guilty.

With regards to Count 10 whether or not the Defendant made physical

contact of an insulting or provoking nature with Edward Barksdale while he is

performing his official duties. The Court fin[ds] the State has met their burden of

proof * * * in that the Defendant had contact of an insulting or provoking nature

with regards to Officer Barksdale on this date. The State has met their burden of

proof [in] regards to Count 11 as well. And the Defendant’s contact was of an

insulting or provoking nature with Officer Barksdale in preventing him from

performing his official duties. * * *

And I see proof Defendant was in fact tased. The Court finds he was tased

also because of the struggle that * * * he presented to the police officers. So the

Court does believe the Defendant was tased, and the Defendant was injured in this

matter. However, again, the Court finds the defendant did resist with the police

officers, and there was an injury. There is not bodily harm, but there was an injury.

Therefore with regard to Count 14, the court finds the State has met their burden of

proof beyond a reasonable doubt of resisting or obstructing a peace officer. So the

findings of guilty will be on Counts 10, 11, and 14. Finding of not guilty with regard

to counts 7 and 8, causing bodily harm to Officer Barksdale.”

¶ 16 Defendant filed a posttrial motion, requesting that the court reconsider its findings of guilt

on counts X and XI because it made no finding that he kicked and punched Barksdale as alleged

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in the indictment. Alternatively, defendant’s motion sought a new trial. The court denied the

motion.

¶ 17 After arguments in aggravation and mitigation, the court merged count XI into count X and

sentenced defendant to a four-year term for aggravated battery of a peace officer on count X. The

court also imposed a concurrent three-year term for resisting or obstructing a peace officer on

count XIV. Defendant’s motion to reconsider sentence was denied.

¶ 18 On appeal, defendant first argues that his conviction for aggravated battery of a peace

officer must be reversed because the State failed to prove beyond a reasonable doubt that he

punched and kicked Barksdale, as alleged in the indictment. In setting forth this argument,

defendant relies on the indictment’s allegation that he “made physical contact of an insulting or

provoking nature with Edward Barksdale, to wit: [defendant] punched and kicked Officer

Barksdale about the body.” 1 He argues that the State was required to prove this specific act of

punching and kicking Barksdale, and that the court’s findings reflect the State’s failure to prove

this “essential” element. He emphasizes that, although the trial court referenced a struggle between

defendant and the officers, it did not specifically find that he punched and kicked Barksdale.

Defendant thus maintains that the State “failed in its burden of proof” by not proving the acts in

conformance with the charge in the indictment. On this basis, he seeks reversal of the aggravated

battery conviction.

1 We note that defendant argues that “his two convictions for aggravated battery must be reversed,” challenging the findings of guilt on both counts X and XI. Both of those counts included the “punched and kicked Officer Barksdale” phrase. However, only the conviction on count X, upon which the court imposed sentence, is a final and appealable order. See People v. Relerford, 2017 IL 121094, ¶ 71. Thus, to the extent defendant seeks to challenge the finding of guilt on the unsentenced count XI, we lack jurisdiction. See People v. Jamison, 2018 IL App (1st) 160409, ¶¶ 33-38 (pursuant to Relerford, finding no appellate jurisdiction to consider defendant’s challenge to conviction on an unsentenced aggravated battery count that was merged into another aggravated battery count).

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¶ 19 As a threshold matter, we note that, although defendant frames this argument as a challenge

to the sufficiency of the evidence, that characterization is incorrect. Generally, when considering

a challenge to the sufficiency of the evidence, a reviewing court determines whether, viewing the

evidence in the light most favorable to the State, a rational trier of fact could have found the

required elements of the crime beyond a reasonable doubt. People v. Bradford, 2016 IL 118674, ¶

12. However, in this court defendant does not contend that the State failed to prove any statutory

element of the offense of aggravated battery. See People v. Lattimore, 2011 IL App (1st) 093238,

¶ 68 (explaining that, where defendant argued that State failed to prove indictment’s allegation

that defendant “struck” victim about the body, “sufficiency of the evidence is not at issue here

because the evidence was sufficient to prove defendant guilty of aggravated battery”). Rather, the

basis of his claim is that the State did not prove the indictment’s allegation that he “punched and

kicked” Barksdale. Defendant suggests that the court had to specifically find that he committed

aggravated battery in that precise manner to sustain his conviction. We disagree.

¶ 20 It is well-settled that the State “ ‘must prove the essential elements of the charging

instrument.’ ” People v. Lattimore, 2011 IL App (1st) 093238, ¶ 67 (quoting People v. Rotermel,

88 Ill. 2d 541, 544 (1982)). “As set forth in section 111-3 of the Code, a defendant has a

fundamental right to be informed of the nature and cause of criminal accusations made against

him. [Citation.]” People v. Espinoza, 2015 IL 118218, ¶ 15; 725 ILCS 5/111-3(a) (West 2014).

Each indictment must state the name of the accused, the name, date and county of the offense, the

statutory provision alleged to have been violated, and set forth “the nature and elements of the

offense charged.” 725 ILCS 5/111-3(a) (West 2014); People v. Collins, 214 Ill. 2d 206, 219 (2005).

On the other hand, “[i]mmaterial matters, or matters which may be omitted from an indictment

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without rendering it insufficient or doing damage to the material averments, may be regarded as

surplusage.” (Internal quotation marks omitted.) Lattimore, 2011 IL App (1st) 093238, ¶ 67; see

also Collins, 214 Ill. 2d at 219 (“Where an indictment charges all essential elements of an offense,

other matters unnecessarily added may be regarded as surplusage. [Citations.]”). Defendant’s

argument thus depends upon whether the phrase “punched and kicked,” as used in the indictment,

was essential. Construction of the charging instrument presents a question of law, which is

reviewed de novo. See Espinoza, 2015 IL 118218, ¶¶ 15-16 (reviewing de novo whether omission

of victims’ identities rendered charging instrument deficient); People v. Rowell, 229 Ill.2d 82, 92

(2008) (reviewing de novo defendant’s claim that information failed to allege essential mental state

element of retail theft).

¶ 21 In this case, we agree with the State that the phrase “to wit: [defendant] punched and kicked

Officer Barksdale” was surplusage, rather than an essential element of the indictment. This

conclusion is clear from a comparison of the indictment with the statutory language defining the

form of aggravated battery alleged in count X, the count upon which defendant was convicted and

sentenced. “A person commits battery if he or she knowingly without legal justification by any

means * * * makes physical contact of an insulting or provoking nature with an individual.” 720

ILCS 5/12-3 (West 2014). A person commits the form of aggravated battery alleged in count X

when, in committing a battery, he knows the individual battered to be a peace officer performing

his or her official duties. 720 ILCS 5/12-3.05(d)(4)(i) (West 2014)).

¶ 22 Count X alleged that defendant “made physical contact of an insulting or provoking nature

with Edward Barksdale, to wit; [defendant] punched and kicked Officer Barksdale about the body”

while Barksdale performed his official duties. The phrase “made physical contact of an insulting

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or provoking nature” describes the statutory offense of battery. That is, even without the “to wit”

phrase, the indictment already contained all necessary elements: defendant’s name, the date and

place of offense, the statutory provision alleged to have been violated, and the nature and elements

of the offense charged. Collins, 214 Ill.2d at 219. In other words, the phrase “to wit: [defendant]

punched and kicked Officer Barksdale” was immaterial surplusage.

¶ 23 We note defendant’s argument that, because “physical contact of an insulting or provoking

nature” is not statutorily defined, 720 ILCS 5/12-3(a) (West 2014), as a matter of due process, the

indictment required more specific allegations to inform defendant of what he was accused of. See

People v. Smith, 99 Ill. 2d 467, 471 (1984) (“[I]t is not sufficient for an information merely to set

forth the name of an offense and cite the statute which defines it as an offense; it must set forth in

addition the nature and elements of the offense.”). However, defendant fails to cite any authority

suggesting that a battery indictment’s description of the precise form of the “insulting or

provoking” contact is an essential element of the indictment, or that the court must make a specific

finding that the battery occurred in the precise manner alleged in the indictment. To the contrary,

there is precedent that “[t]he particular details of the means defendant allegedly used do not

constitute essential elements of the offense of aggravated battery.” People v. Nathan, 282 Ill. App.

3d 608, 611 (1996) (trial court did not err in permitting amendment to indictment to add allegation

that defendant bit and spit on correctional officer, in addition to striking him in the face as

originally alleged). Accordingly, we reject defendant’s suggestion that the court could not find him

guilty of aggravated battery unless it made a specific finding that he punched and kicked Barksdale.

¶ 24 We turn to defendant’s alternative argument, that his conviction for resisting or obstructing

a peace officer must be vacated because it was based on the same physical act as the aggravated

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battery conviction. Defendant points out that he was convicted of the Class 4 form of resisting or

obstructing a peace officer, which required proof of an injury to Barksdale. See 720 ILCS 5/31-

1(a-7) (West 2014) (“A person convicted for a violation of this Section whose violation was the

proximate cause of an injury to a peace officer * * * is guilty of a Class 4 felony.”). Defendant

notes Barksdale’s testimony that he received bruising and scrapes in the struggle. Defendant argues

that the struggle that caused this injury comprised the “same physical act” that was the basis of his

aggravated battery conviction, thus violating the one-act, one-crime rule. In turn, he urges that the

conviction for resisting or obstructing a peace officer, as the less serious offense, must be vacated.

¶ 25 The State responds that there was no violation of the one-act, one-crime rule because

defendant’s convictions arose from “multiple, separate and distinct acts.” The State urges that

defendant resisted Barksdale and caused him injury when he, Barksdale, and Meers fell to the

ground in the struggle to restrain defendant, and that defendant separately committed aggravated

battery “when he punched, kicked, and made other insulting and provoking contact with”

Barksdale.

¶ 26 Defendant acknowledges that he forfeited his one-act, one-crime argument by failing to

raise this claim before the trial court. However, he urges that we review it under the plain error

doctrine, which allows a reviewing court to consider an unpreserved error (1) when a clear or

obvious error occurred and the evidence is so closely balanced that the error alone threated to tip

the scale of justice against the defendant, regardless of the seriousness of the error, or (2) when a

clear or obvious error occurred and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of

the evidence. People v. Coats, 2018 IL 121926, ¶ 9. Our supreme court has explained that “one-

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act, one-crime violations fall within the second prong of the plain error doctrine as an obvious

error so serious that it challenges the integrity of the judicial process. [Citations.]” Id. ¶ 10. Thus,

despite the forfeiture, we will address defendant’s argument.

¶ 27 The one-act, one-crime rule prohibits convictions for multiple offenses that are based on

precisely the same physical act. People v. Smith, 2019 IL 123901, ¶ 13 (citing Coats, 2018 IL

121926, ¶ 11). However, multiple convictions are permitted in cases “ ‘where a defendant has

committed several acts, despite the interrelationship of those acts.’ ” People v. Almond, 2015 IL

113817, ¶ 47 (quoting People v. King, 66 Ill. 2d 551, 566 (1977)).

¶ 28 We perform a two-step analysis to determine whether simultaneous convictions violate the

one-act, one-crime rule. Smith, 2019 IL 123901, ¶ 15. Under the first step, “we must first determine

whether a defendant’s conduct consisted of a single physical act or separate acts.” Id. (citing Coats,

2018 IL 121926, ¶ 12). “Multiple convictions are improper if they are based on precisely the same

physical act.” Id. If the defendant’s conduct is based on more than one physical act, the reviewing

court then “proceeds to the second step, determining whether any of the offenses are lesser-

included offenses. [Citation.] If not, then multiple convictions are proper.” Id. Whether a one-act,

one-crime violation has occurred is a question of law that is reviewed de novo. Id.

¶ 29 In this case, defendant was convicted of aggravated battery of a peace officer and resisting

or obstructing a peace officer. The aggravated battery count alleged that defendant “made physical

contact of an insulting or provoking nature with Edward Barksdale, to wit: [defendant] punched

and kicked Officer Barksdale about the body * * *.” The State also proceeded to trial on one count

of resisting or obstructing a peace officer, which alleged that defendant “knowingly resisted or

obstructed the performance of” Barksdale and was the “proximate cause of an injury” to Barksdale.

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¶ 30 Before considering whether defendant’s conduct consisted of separate acts, we first address

the argument, raised in defendant’s reply brief, that the State failed to apportion his conduct in the

indictment to support multiple offenses. See People v. Crespo, 203 Ill. 2d 335, 345 (2001) (“the

indictment must indicate that the State intended to treat the conduct of defendant as multiple acts

in order for multiple convictions to be sustained”).

¶ 31 Based on our review of the indictment in this case, we find Crespo distinguishable.

Whereas the indictment in Crespo charged multiple offenses based on the same conduct, in this

case the State charged defendant with aggravated battery and resisting or obstructing a peace

officer based on separate conduct. See id. at 342. The charge of aggravated battery upon which he

was convicted (count X) alleged that defendant, “in committing a battery * * * * made physical

contact of an insulting or provoking nature with Edward Barksdale, to wit: [defendant] punched

and kicked Officer Barksdale about the body” while Barksdale was performing his official duties.

(Emphasis added). In contrast, the count underlying defendant’s conviction for resisting or

obstructing a peace officer alleged that he “knowingly resisted or obstructed the performance of

Edward Barksdale” and was the proximate cause of an injury to Barksdale. These charges do not

allege the same conduct. First, the “punched and kicked” phrase of the aggravated battery count is

not present in the charge for resisting or obstructing a peace officer. Moreover, while the

aggravated battery count alleges that defendant made “physical contact of an insulting or

provoking nature,” no such physical contact is alleged in count XIV’s charge that he “resisted or

obstructed” Barksdale. Indeed, no such contact is required to prove resisting or obstructing a peace

officer. 720 ILCS 5/31-1(a) (West 2014); see also People v. Kotlinski, 2011 IL App (2d) 101251,

¶ 47 (“Passive acts that impede an officer’s ability to perform his duties, such as repeatedly

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refusing an order to exit a vehicle, can be a violation of section 31-1(a) [citation]”); People v.

Miller, 199 Ill. App. 3d 603, 610 (1990) (“Resisting a peace officer is a separate crime which does

not require establishment of battery. [Citations.]”). As such, the indictment here does not resemble

the situation in Crespo.

¶ 32 That said, we turn to the first step of the one-act, one-crime analysis to consider whether

defendant’s conduct consisted of separate acts or a single physical act. Our supreme court has

established that “the definition of an ‘act’ for purposes of this analysis is simply ‘any overt or

outward manifestation which will support a different offense.” Smith, 2019 IL 123901, ¶ 18

(quoting King, 66 Ill. 2d at 566). A person “can be guilty of two offenses when a common act is

(1) part of both offenses or (2) part of one offense and the only act of the other offense.” Id. (citing

Coats, 2018 IL 121926, ¶ 15). For example, our supreme court recently held that the one-act, one-

crime rule was not violated by convictions for robbery and aggravated battery, even where both

involved the same common act, i.e. a single punch to the victim. Smith, 2019 IL 123901 ¶¶ 17-23.

Our supreme court recognized that the “punch supported the aggravated battery conviction and

served as the force necessary to effectuate the robbery.” Id. ¶ 22. However, the punch “was only

part of the wrongful conduct of the robbery offense,” which also required a taking of property. Id.

Because the robbery required this separate act, the two offenses involved “interrelated” acts but

“were not carved from precisely the same physical act.” Id. ¶ 23.

¶ 33 Applying the first step, we determine that defendant’s convictions for aggravated battery

and resisting or obstructing a peace officer were not based on a single, physical act. Although

defendant invites us to view the entirety of his resistance and ensuing “struggle” with police as a

single, unified act, we decline to do so where the evidence showed, and the court found, multiple

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overt acts over the course of the incident. These multiple acts supported separate convictions for

aggravated battery and resisting a peace officer.

¶ 34 The State’s evidence did not describe a single simultaneous act of resisting arrest. Rather,

the evidence established a series of acts by defendant, eventually resulting in a struggle requiring

three officers to subdue him. The evidence showed that, once defendant heard about an outstanding

warrant, he turned around, pushed officers, and attempted to flee. After Meers attempted to use a

taser on defendant, defendant picked up Meers and they were “hugged up.” Barksdale then

attempted to help Meers apprehend defendant. During the struggle with both officers, defendant

punched and kicked them. Defendant was not subdued until a third officer arrived to help.

Although defendant’s actions in resisting arrest and the ensuing struggle with police were

interrelated, they comprised multiple overt acts.

¶ 35 In reaching this conclusion, we acknowledge that the trial court specifically found that

Barksdale suffered “minor bruises and scrapes to his knees”; this finding satisfied the element of

an injury to Barksdale for purposes of his conviction for resisting or obstructing a peace officer.

720 ILCS 5/31-1(a-7) (West 2014) (requiring “injury” to peace officer). However, at no point did

the court find that the very same act of resistance (i.e., the act that caused Barksdale’s injury) was

also the basis for finding that the State had proven contact of an insulting or provoking nature, for

purposes of the aggravated battery conviction. 2 Rather, it is apparent that the court found him

guilty of aggravated battery based on one or more independent acts of “physical contact of an

2 Indeed, the court specifically declined to find that the aggravated battery of Barksdale caused him bodily harm, as would support a finding of guilt on counts VII and VIII. Since the only evidence of injury to Barksdale was the scraping and bruising of his knees (which corresponded to the injury element of defendant’s conviction for resisting or obstructing a peace officer), it follows that the court must have found other, non-injurious contact of an insulting or provoking nature to support his aggravated battery conviction under count X.

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insulting or provoking nature,” given the testimony that defendant pushed, punched and kicked

¶ 36 Because there was evidence of multiple acts supporting the different convictions, we reject

defendant’s suggestion that this case is similar to People v. Hagler, 402 Ill. App. 3d 149 (2010).

The defendant in Hagler was convicted of aggravated battery of a peace officer, as well as the

Class 4 form of resisting or obstructing a peace officer, proximately resulting in injury. Id. at 149-

50. In Hagler, this court vacated the defendant’s conviction of resisting or obstructing a peace

officer, after concluding that both offenses were premised solely on a single common act, i.e.,

defendant slamming a door on an officer’s hand. Id. at 155. Here, unlike Hagler, there was

evidence of multiple acts that could separately support the court’s finding of guilt for aggravated

battery of Barksdale in addition to the act of resistance that supported his conviction for resisting

or obstructing a peace officer.

¶ 37 Finally, applying the second step of the one-act, one-crime rule, we do not find that either

of the offenses of which defendant was convicted is a lesser-included offense. Under the “abstract

elements” approach, we compare the statutory elements of the offenses to determine if one is a

lesser-included offense of another. Smith, 2019 IL 123901, ¶ 37 (citing People v. Miller, 238 Ill.

2d 161, 166 (2010). If all of the elements of one offense are included within the second offense

and the first offense contains no element not included in the second offense, the first offense is

deemed a lesser-included offense of the second. Id.

¶ 38 We thus compare the elements underlying the offenses of which defendant was convicted.

The elements of resisting or obstructing a peace officer are that defendant knowingly resisted or

obstructed the performance by one known to him to be a peace officer, proximately causing an

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injury to the peace officer. 720 ILCS 5/31-1(a-7) (West 2014). The offense of aggravated battery

includes the elements of battery, i.e. that defendant knowingly without legal justification makes

physical contact of an insulting or provoking nature with an individual (720 ILCS 5/12-3 (West

2014)). Further, the form of aggravated battery underlying defendant’s conviction has the

additional element of defendant’s knowledge that the individual battered was a peace officer

performing his or her official duties. 720 ILCS 5/12-3.05(d)(4)(i) (West 2014)).

¶ 39 As such, not all of the elements of resisting or obstructing a peace officer are included in

the aggravated battery offense, and resisting or obstructing a peace officer contains an element not

included in the aggravated battery offense. See Miller, 238 Ill. 2d at 176 (explaining that retail

theft is not lesser-included offense of burglary where “[n]ot all of the elements of retail theft are

included in the offense of burglary and retail theft contains elements that are not included in

burglary.”). Specifically, defendant’s conviction under count XIV required resisting or obstructing

a police officer (which does not necessarily involve physical contact), whereas his aggravated

battery conviction required physical contact of an insulting or provoking nature. 720 ILCS 5/12-3

(West 2014); see also Kotlinski, 2011 IL App (2d) 101251, ¶ 47. Given the different statutory

elements, resisting or obstructing a peace officer is not a lesser-included offense of aggravated

battery of a peace officer. Accordingly, defendant’s convictions for aggravated battery of a peace

officer and resisting or obstructing a peace officer do not violate the one-act, one-crime rule.

¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 41 Affirmed.

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