{ "id": 3152446, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TERRY, Defendant-Appellant", "name_abbreviation": "People v. Terry", "decision_date": "1980-12-18", "docket_number": "No. 16255", "first_page": "34", "last_page": "38", "citations": [ { "type": "official", "cite": "91 Ill. App. 3d 34" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "367 N.E.2d 1281", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811945 ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0388-01" ] }, { "cite": "356 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "64 Ill. 2d 485", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5430641 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/64/0485-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "405 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3209450 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0390-01" ] }, { "cite": "182 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352878 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0032-01" ] }, { "cite": "362 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "66 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5465234 ], "weight": 2, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0317-01" ] }, { "cite": "379 N.E.2d 1385", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3339237 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0602-01" ] }, { "cite": "385 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994485 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0329-01" ] } ], "analysis": { "cardinality": 554, "char_count": 8997, "ocr_confidence": 0.914, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08901194625632614 }, "sha256": "d834ea13f44f0877f1454c28d6966c75a38041276ee61eabde315f30474d177d", "simhash": "1:37d388bd3e840395", "word_count": 1486 }, "last_updated": "2023-07-14T14:46:24.599710+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TERRY, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE WEBBER\ndelivered the opinion of the court:\nThe defendant was charged by information in Champaign County circuit court with two counts of aggravated battery, and one count of aggravated assault in violation of sections 12 \u2014 4(b)(6) and 12 \u2014 2(a)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 12 \u2014 4(b)(6) and 12 \u2014 2(a)(6)). One aggravated battery count alleged that defendant bit Deputy Stephen Zook, the second aggravated battery count alleged that he knocked Deputy Walter Parrish against a cell wall, and the aggravated assault count alleged that he pushed Deputy Kenneth Roderick, which action placed Roderick in reasonable apprehension of receiving a battery. All these offenses were alleged to have taken place while the officers were transporting defendant from his jail cell.\nAfter hearing testimony on March 19 and 20, 1980, a jury returned verdicts as follows: not guilty as to aggravated battery on Parrish, not guilty as to aggravated assault on Roderick; guilty of aggravated battery on Zook, and guilty of resisting or obstructing a peace officer as to Zook and Parrish. The resisting or obstructing peace officer charges had been submitted at defendant\u2019s request as lesser-included offenses of aggravated battery. A post-trial motion was denied and defendant was sentenced to 2 years\u2019 imprisonment for aggravated battery, and 364 days\u2019 imprisonment on each of the resisting offenses, all sentences to run concurrently. This appeal followed.\nOn appeal, defendant contends that: (1) He was not proved guilty of aggravated battery beyond a reasonable doubt; (2) the trial court erred in instructing the jury as to the limited purpose for which prior convictions of a witness may be considered where only defense witnesses were impeached with prior convictions and defense counsel requested that the instruction not be given; (3) that the prosecutor\u2019s comments regarding an injury he had received while skiing were not based on the evidence, and were prejudicial because the issue of whether bodily harm had occurred was crucial; and (4) the trial court improperly sentenced defendant on both the aggravated battery and resisting counts.\nTestimony at trial revealed that there was a disturbance in the Champaign County jail in the early morning hours of January 30, 1980. Roderick observed defendant beating on a steel wall. When Roderick asked defendant what the problem was, he replied that he wanted the lights turned up, and the radio turned on. When Roderick refused these requests defendant became loud and abusive. When defendant indicated that he would resist being moved to a different cell, Roderick returned to the booking area to obtain assistance. Roderick returned in a few minutes with Zook and Parrish, and two other officers. While struggling to remove defendant from his cell, Roderick, Zook, and Parrish were all pushed against the wall of the cell and when Zook reached in front of defendant in an attempt to handcuff him, defendant bit him on the elbow. On feeling defendant bite him, Zook exclaimed, \u201cHe bit me!\u201d Zook testified that although he was wearing a winter jacket the bite left tooth marks and redness, and a bruise appeared the following day. Another deputy testified that he saw only redness when Zook showed him the elbow.\nDefendant, and several other inmates of the jail on that night, testified that he was not making noise, that his resistance of the deputies\u2019 efforts to remove him from the cell was restricted to hanging onto the bars, and other objects, and asking where he was being taken, and that he did not bite or strike any of the deputies although he had many opportunities to do so.\nThe crucial inquiry in the aggravated battery charge was whether Zook received a bodily injury. The evidence was in conflict, but a reviewing court will not substitute its judgment for that of the finder of fact unless the evidence is so improbable as to raise a reasonable doubt as to the defendant\u2019s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) The issue as to whether a peace officer suffered an injury, and whether that injury constitutes bodily harm, is particularly a jury question. (People v. Woollums (1978), 63 Ill. App. 3d 602, 379 N.E.2d 1385.) The record here sustains the jury\u2019s verdict.\nDefendant next argues that the trial court committed error in giving over his objection Illinois Pattern Jury Instructions, Criminal, No. 3.12 (IPI Criminal) which deals with impeachment of witnesses by prior crimes. He analogizes to IPI Criminal No. 3.13, which is to be given only on a defendant\u2019s request. He cites People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295, to support the argument that the party against whom evidence of a prior conviction is admitted may offer an instruction limiting its use. Monroe recognizes that principle with which we have no quarrel, but we note that the language of Monroe is permissive, \u201cthat the party against whom it is admitted may tender instructions * * (Emphasis added.) (66 Ill. 2d 317, 323, 362 N.E.2d 295.) It does not say that \u201conly\u201d that party is entitled to such instructions. Additionally, Monroe does not purport to deal with IPI Criminal No. 3.12.\nThe Committee Notes to IPI Criminal Nos. 3.12 and 3.13 indicate that No. 3.13, relating to the defendant, is to be given only on his request. This is a humane provision of the law which affords a defendant the right to be tried only for what is charged in a case at bar, with a jury uninfluenced by some prior bad conduct on his part. The same considerations do not apply to witnesses who are not on trial, and whose credibility is in issue. In our adversary system the discrediting of one\u2019s opponent\u2019s witnesses is an accepted trial technique. Defendant\u2019s argument here, stretched to its logical extreme, would bar even cross-examination of opposing witnesses. His contention is without merit.\nWe also regard the complained-of remarks of the prosecutor in final argument harmless. They were offered, along with another example of everyday experience, that of a child sustaining injury despite protective clothing. Read in context of the entire argument, we cannot say that they influenced the result. People v. Naujokas (1962), 25 Ill. 2d 32, 182 N.E.2d 700.\nThe matter of defendant\u2019s convictions on both the aggravated battery and resisting charges presents a somewhat more complicated problem. As indicated above, defendant submitted and was given instructions on resisting a peace officer as a lesser included offense of aggravated battery. The jury found him guilty of both as to Zook, but not guilty of aggravated battery, and guilty of resisting as to Parrish.\nUnder the circumstances here present, resisting a peace officer is an included offense of aggravated battery upon a peace officer since both charges arise out of a single act. Therefore, the judgment and sentence for resisting a peace officer as to Zook must be vacated. People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489.\nAs to Parrish, it is argued that there was a single act out of all the disturbance and therefore the judgment, and sentence, on resisting a peace officer must likewise be vacated under People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. We disagree. King held that the \u201csingle act\u201d theory rather than the \u201ccourse of conduct\u201d theory should govern sentencing, but also held that multiple convictions, and concurrent sentences, are permissible where a defendant has committed a series of acts which will support different offenses, even though those acts may be interrelated. In the case at bar there was credible evidence that defendant resisted both Zook and Parrish, even though the resistance was part of the general melee. People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330; People v. Thomas (1977), 67 Ill. 2d 388, 367 N.E.2d 1281.\nWe note that the trial court\u2019s judgment order does not make clear whether there were one or two sentences imposed for resisting a peace officer. It refers to \u201clesser included offenses\u201d in the plural but imposes a single term of 364 days.\nFor the foregoing reasons, the cause is remanded to the circuit court of Champaign County with directions to vacate the conviction and any sentence that might have been imposed thereon for resisting Zook. The convictions and sentences for aggravated battery on Zook and for resisting a peace officer as to Parrish are affirmed. An amended mittimus is ordered to be issued.\nAffirmed in part, vacated in part, and remanded with directions.\nMILLS and GREEN, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE WEBBER" } ], "attorneys": [ "Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Keith P. Vanden Dooren and Donald L. Hays, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TERRY, Defendant-Appellant.\nFourth District\nNo. 16255\nOpinion filed December 18, 1980.\nDaniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Keith P. Vanden Dooren and Donald L. Hays, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0034-01", "first_page_order": 56, "last_page_order": 60 }