Opinion
No. 02-12-0212
2013-09-30
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEULAH M. FULTZ, Defendant-Appellant.
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).
Appeal from the Circuit Court
of Kane County.
No. 09-CF-1706
Honorable
David R. Akemann,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶ 1 Held: The trial court erred in allowing the State, at the close of its case, to amend the indictment regarding which official duty of a police officer defendant resisted as the basis for a conviction of resisting a police officer.
¶ 2 I. INTRODUCTION
¶ 3 Defendant, Beulah M. Fultz, was convicted of one count of attempt (resisting a peace officer) (720 ILCS 5/8-4 (West 2008); 720 ILCS 5/31-1(a-7) (West 2008)) and one count of resisting a peace officer (720 ILCS 5/31-1(a) (West 2008)). She now appeals, contending that the conviction of resisting must be reversed because the trial court erroneously allowed the State to amend the indictment in a manner that fundamentally altered the charge. We agree with defendant.
¶ 4 II. BACKGROUND
¶ 5 On July 10, 2009, Officer Jay Ellis and Officer Douglas Rashkow attempted to arrest a man, Anthony Jackson, in the back yard of defendant's property. An arrest warrant had been issued for Jackson. According to Ellis, there were approximately 10 people in the yard. Several other officers arrived at the scene. Ellis positioned himself between Jackson and the house, and Rashkow moved to the other side of Jackson. Defendant, who was 62-years of age at the time, approached Rashkow and started arguing with him. Ellis placed Jackson in handcuffs and took him to a paddy wagon. Rashkow remained in the backyard. ¶ 6 Rashkow testified that when they first confronted Jackson, they were on the back porch of defendant's house. Defendant tried to push her way between him and Jackson. Rashkow pushed defendant down the steps. When Ellis took Jackson to the paddy wagon, Rashkow told other officers that defendant was to be arrested for resisting arrest. He then went around the side of the house, where defendant was talking on a cellular telephone. He instructed defendant to hang up and told her that she was under arrest. Defendant refused to hang up and pushed Rashkow. She then proceeded toward the house. Rashkow pursued her. Officer Horton was near the back door. He attempted to grab defendant. According to Rashkow, defendant slapped Horton's hand, causing scratches on his right arm. ¶ 7 Horton testified similarly to Rashkow. He further stated that Officer Peterson was able to calm the situation. Defendant was then transported to a hospital. Peterson and Officer Feeney gave testimony largely corroborative of the other officers who testified. ¶ 8 The State then sought leave to amend Count III of the indictment. Originally, Count III stated, in pertinent part, that defendant committed the offense of resisting a police officer by "knowingly resist[ing] the performance of Officer Rashkow of an authorized act within his official capacity, being the arrest of the defendant, knowing Officer Rashkow to be a peace officer engaged in the execution of his duties." (Emphasis added.) As amended the italicized language set forth above reads, "being the arrest of Anthony Jackson." The trial court granted the State's request, and the State rested. Judge Gallagher presided over the trial up until this point. Before the case could be recalled, he died, and the balance of the case was heard by Judge Akemann. ¶ 9 After approximately an eight-month break in the trial, defendant testified in her own behalf. She stated that she was 65-years of age at the time of trial and disabled, having undergone three back surgeries. She denied having any confrontation with Rashkow regarding Jackson's arrest. She complied with Peterson's direction to "just walk on off." Rashkow tried to catch her and punched her in the side. Subsequently, she went to the bathroom and an officer forced his way in. Defendant had an anxiety attack and was taken to the hospital. ¶ 10 The trial court found defendant not guilty of aggravated battery (Count I) and guilty of resisting (Count III). The trial court also found that Horton lacked credibility regarding the injury he purportedly sustained, so the trial court found defendant not guilty of felony resisting but guilty of the lesser-included offense of attempted resisting a police officer (Count II).
¶ 11 III. ANALYSIS
¶ 12 Defendant now appeals, arguing that the trial court erred in allowing the State to amend Count III of the indictment in a manner that fundamentally altered the charge. Generally, a formal defect in a charging instrument may be corrected at any time. 725 ILCS 5/111-5 (West 2008). Amending a charging instrument "is warranted especially where the defendant is not surprised or prejudiced or where the record shows he was otherwise made aware of the actual charge." People v. Milton, 309 Ill. App. 3d 863, 866 (1999). An amendment is substantive, rather than formal, if "(1) it materially alters the charge, and (2) it cannot be determined whether the grand jury intended the alteration." Id. The distinction between substantive and formal defects "rests, at least in part, on the fact that where there are substantive changes as opposed to technical defects, it cannot be known whether a grand jury would have returned such an altered indictment." Id. Examples of formal defects include:
"(a) Any miswriting, misspelling or grammatical error;This list is not exclusive. People v. Benitez, 169 Ill. 2d 245, 255 (1996). In People v. Griggs, 152 Ill. 2d 1, 32 (1992), our supreme court held, "Any attempt to broaden the scope of the indictment, alter or change the offense charged, or change a material element of the indictment requires return of the indictment to the grand jury." A trial court's decision to allow such an amendment will be disturbed only in the event of an abuse of discretion. People v. Alston, 302 Ill. App. 3d 207, 211 (1999). Thus, we will reverse only if no reasonable person could agree with the trial court. People v. Walston, 386 Ill. App. 3d 598, 601 (2008). ¶ 13 In this case, the amendment was clearly substantive. Initially, defendant was charged with resisting her own arrest. After the amendment, she was charged with interfering with the arrest of Jackson. The two arrests were distinct events. In People v. Zajac, 244 Ill. App. 3d 42, 43 (1991), the trial court permitted the State to amend a criminal complaint charging driving under the influence (DUI) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)) to refer to a different subsection of the DUI statute. The court found this amendment to be substantive in nature because it "changed the nature of the evidence necessary to obtain a conviction." Id. at 44. The amendment in this case worked a similar result. Prior to the amendment, relevant evidence would have concerned the events beginning when Rashkow confronted defendant alongside of her house and after Jackson had been taken to the paddy wagon. After the amendment, at issue were the events surrounding the arrest of Jackson in defendant's backyard. Hence, the evidence necessary to obtain a conviction changed, and thus, the amendment was substantive. See also People v. Patterson, 267 Ill. App. 3d 933, 939 (1994) (holding that amending a charge of possession of a controlled substance with intent to deliver less than 100 grams of cocaine to 517 grams was substantive because "in a drug case, the quantity of a controlled substance *** is an essential element of the charge," so the amendment "materially change[d] the indictment"). ¶ 14 Moreover, we note that the amendment did not occur until after the State rested its case. Error-indeed, plain error-has been found in less egregious circumstances:
(b) Any misjoinder of the parties defendant;
(c) Any misjoinder of the offense charged;
(d) The presence of any unnecessary allegation;
(e) The failure to negative any exception, any excuse or proviso contained in the statute defining the offense; or
(f) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged." 725 ILCS 5/111-5 (2008).
"More importantly, it was error to allow the People to amend the charge immediately prior to trial. Such error fails to apprise defendant of the precise offense charged, with sufficient time to prepare his defense. We find that the above reflects on the fairness and impartiality of the trial; therefore, the plain error exception to the waiver rule is applicable here." People v. Payne, 194 Ill. App. 3d 238, 247 (1990).Defendant was therefore prejudiced in that she conducted cross-examination without a true understanding of the charge that she was defending against. ¶ 15 The State inaccurately contends that "defendant admitted on January 26, 2012, at the hearing that she was not surprised by the amendment." What defendant's attorney in fact stated is as follows: "While I am not surprised today, at the conclusion of evidence, we were surprised and we had not prepared for - to defend that charge." Counsel's assertion is confirmed by the trial transcript. During cross-examination of Rashkow, defense counsel noted that, while the case file contained a two-count complaint for preliminary hearing for aggravated battery of Rashkow and resisting Horton, there was no complaint for the count based on resisting Rashkow. Counsel asked Rashkow, "And you don't have a copy of the document that you tell us you signed charging [defendant] with resisting arrest - I'm sorry - that you tell us you signed charging [defendant] with arresting your arrest of her, is that correct?" (Emphasis added.) Thus, defense counsel was clearly laboring under the misapprehension that defendant was charged with resisting her own arrest. ¶ 16 In short, we agree with defendant that reversible error occurred. No reasonable person could conclude that the amendment did not substantively alter the charge. Accordingly, defendant's conviction based on that charge must be reversed. ¶ 17 The State contends a different result should obtain, arguing that the amendment amounted merely to a name change. Name changes have been held to be formal defects, at least in certain circumstances. See People v. Ross, 395 Ill. App. 3d 660, 668 (2009). In Ross, for example, the indictment mistakenly named the victim of a sexual assault as G.W. Id. at 663. The victim actually was C.C., and the State moved to amend the indictment accordingly. Id. The indictment properly stated that the assault occurred on January 8, 2004. G.W. was actually the victim of an earlier sexual assault that had occurred in 1999 that was the subject of an other-crimes motion. Id. at 663 n.1. The Ross court held that given the disparity in the dates as well as the fact that the State consistently maintained that the defendant was charged with assaulting CC., the defendant was well aware of the charges against him. Id. at 671-72. Conversely, in this case, no similar facts exist that would have allowed defendant to understand which arrest the State was charging her with resisting. Both defendant's and Jackson's arrest occurred in close proximity in space and time. As such, Ross is distinguishable. ¶ 18 The State also relies on People v. Jones, 2012 IL App (2d) 110346. In that case, the defendant was charged with aggravated battery. Id. at ¶ 50. The indictment named one police officer as the victim, and the State amended the indictment to name a different officer. Id. Both officers were involved in an altercation with the defendant from which the charge arose. Id. at ¶ 58. The Jones court observed, "[a]n amendment correcting the misidentification of a victim, even when it is an essential element of the offense, can be formal." (Emphasis added.) Id. at ¶ 57. Thus, the court did not hold that all name changes were formal; rather, under appropriate circumstances, a name change can be formal. In Jones, both officers were involved in the single incident forming the bases of the charge in that case. Thus, the amendment did not mislead the defendant as to the incident at issue. However, in this case, the amendment changed the basis of the charge from one distinct incident to another. We also note that in Jones, the defendant was not surprised or prejudiced by the amendment. Id. at ¶¶ 62-64. Here, defendant was forced to conduct cross-examination without knowing what she was actually charged with or which incident the charge was related to. The State also cites another case named People v. Jones, 53 Ill. 2d 460 (1973). It is distinguishable similar grounds. See Id. at 465 (Where, as here, no hint of surprise or prejudice to the defendant is shown, allowance of such an amendment is not error."). ¶ 19 In sum, we do not find the State's arguments persuasive, and we adhere to our earlier conclusion that the amendment was substantive in nature.
¶ 20 IV. CONCLUSION
¶ 21 In light of the foregoing, we reverse defendant's conviction for resisting a peace officer based on Count III of the indictment. ¶ 22 Reverse.