Opinion
No. 2-08-0996
Filed: March 16, 2010.
Appeal from the Circuit Court of Kane County, No. 08-CM-1564, Kevin T. Busch, Judge, presiding.
Following a bench trial, defendant, Jose Munoz, was found guilty of obstructing a peace officer ( 720 ILCS 5/31-1(a) (West 2006)) and sentenced to conditional discharge. Defendant appeals, contending that (1) the criminal complaint did not properly charge him with an offense; (2) there was a fatal variance between the charging instrument and the proof at trial; and (3) he was not proved guilty beyond a reasonable doubt. We affirm.
A criminal complaint charged defendant with obstructing "in that he told the witness Bobby Estrada not to answer the questions of Ofc. Fleury thereby obstructing Officer Fleury's investigation." According to the certified bystander's report, Officer Colin Fleury testified at trial that he was called to investigate a possible shooting in Elgin. He located Estrada, the son of the alleged victim, and began asking him about what happened. Defendant stepped in and asked Fleury why he needed to question Estrada. Fleury tried to walk away from defendant with Estrada, but defendant followed, whispering in Estrada's ear as they walked. Fleury heard defendant whisper, "No sabe," which he understood to mean, "you know nothing." Defendant then said to Fleury, "Yes, I told him not to answer, he's just a kid." Defendant then stepped between the officer and Estrada, making it impossible for Fleury to continue questioning Estrada. Defendant was then arrested.
Defendant testified that Estrada is his cousin. He saw the officer with Estrada and noticed that Estrada appeared shaken. He asked Fleury, "`Why do you have to give him a hard time? He's only a little kid.'" Defendant denied ever saying "no sabe," which means "I don't know." Defendant admitted telling Estrada in Spanish not to talk without his mother present. He denied ever stepping between Fleury and Estrada.
The court found defendant guilty. The court found that defendant was not credible and that he was not acting "in loco parentis" by counseling Estrada. The court further found that "under the totality of the circumstances the Defendant's speech and actions amounted to conduct sufficient to support a finding of guilty." Defendant was sentenced to 12 months' conditional discharge and fined $500. Defendant timely appeals.
Defendant first contends that the complaint did not charge an offense because a charge of obstructing cannot be based solely on a defendant's speech. He cites Landry v. Daley, 280 F. Supp. 938 (N.D. Ill. 1968), andPeople v. Raby, 40 Ill. 2d 392 (1968), for the proposition that "mere argument" with police is not obstruction. Defendant seems to postulate from this that words alone can never be the basis of a charge of obstructing a peace officer. However, cases since Landry and Raby do not support such a broad statement.
Where the statutory language does not adequately particularize the offense or may encompass conduct not intended to be punished under the statute, a complaint phrased solely in the language of the statute is insufficient. People v. Hilgenberg, 223 Ill. App. 3d 286, 289 (1991). Thus, a complaint that charges resisting or obstructing a peace officer must sufficiently describe the physical acts that constitute the crime. People v. Fox, 117 Ill. App. 3d 1084, 1086 (1983). We review de novo the adequacy of a charging instrument. People v. Robinson, 319 Ill. App. 3d 459, 462 (2001).
Here, the complaint properly charged defendant with obstruction based on his attempt to persuade Estrada not to answer the officer's questions. We note that purely verbal conduct the effect of which is to dissuade another person from cooperating with the police can constitute obstruction. Particularly on point is People v. Gibbs, 115 Ill. App. 2d 113 (1969). There, the defendant told several boys who were being searched by police that they did not have to submit to the search. He told them that they should go inside a nearby building, which was private property, and they did so. Gibbs, 115 Ill. App. 2d at 115. The appellate court upheld the defendant's conviction of obstructing a police officer. The court noted that the facts fell somewhere between "mere argument" with the police and "some physical act" that interfered with the police performing their duties. Gibbs, 115 Ill. App. 2d at 118-19. The court held that under the specific facts, "it is clear that defendant interfered with and obstructed the officers in the performance of their duties as completely and effectively as if he physically touched or otherwise physically interfered with the officers." Gibbs, 115 Ill. App. 2d at 119.
Other cases have upheld convictions of obstruction solely on the basis of the defendant's speech where the defendants' words hindered or delayed the original actions of the officers. See People v. Meister, 289 Ill. App. 3d 337, 342 (1997) (where the defendant gave false information about his wife's whereabouts, he was guilty of obstructing service of process because the defendant's contact was intended to "mislead the officers and delay the performance of their duties"); People v. Conner, 42 Ill. App. 3d 234, 235, 239 (1976) (where the defendant showed officers who were arresting his brother an empty shoulder holster and threatened to kill them, he was guilty of obstructing a peace officer because "the acts of [the] defendant impeded and delayed the performance of the officers' duties"); see generally Annot., 66 A.L.R.5th 397 (1999). Defendant's speaking to Estrada is similar to the defendants' speech in Gibbs, Conner, and Meister. Thus, the complaint properly charged defendant with an offense based solely on his speaking to Estrada.
The dissent argues that our holding is contrary to supreme court precedent that "mere words" can never be the basis of an obstruction conviction. Citing Raby, the dissent contends that the obstruction statute does not proscribe "`"mere argument with a policeman about the validity of an arrest or other police action."'" Slip op. at 10, quotingRaby, 40 Ill. 2d at 399, quoting Landry, 280 F. Supp. At 959. However, defendant's conduct here went beyond merely arguing with the officer about the propriety of questioning Estrada. Rather, defendant followed Fleury as Fleury attempted to lead Estrada away from defendant, specifically directing Estrada not to speak to the officer without Estrada's mother and telling Estrada "no sabe" or "you know nothing." In addition, Fleury testified that he had to stop speaking to Estrada at one point in order to deal with defendant. The dissent characterizes this as a voluntary choice by Fleury to speak with defendant instead of Estrada. However, viewing the evidence in the light most favorable to the prosecution, the trial court could reasonably infer that defendant's interference forced Fleury to stop his investigation in order to deal with defendant.
Moreover, Raby does not compel a different result. A fair reading ofRaby reveals that it was a free-speech case. The court's primary concern was that a defendant not be punished for exercising his or her first-amendment right to question police actions. Cases after Raby have consistently held that a defendant's conduct may fall somewhere between "mere argument" and an actual physical act. Contrary to the dissent's assertion, they do not require a defendant to engage in a physical act. The facts in Meister and Gibbs do not reveal that the defendants engaged in any physical activity except for speaking. Meister, 289 Ill. App. 3d at 342; Gibbs, 115 Ill. App. 2d at 118-19.
The dissent attempts to distinguish Gibbs, Meister, and Conner by arguing that the defendants' conduct in those cases went further than that of defendant here, in that defendant did not cause Fleury to lose control of the situation (Gibbs), attempt to hide Estrada from Fleury (Meister), or cause Fleury to change the course of his conduct (Conner). We do not dispute that defendant did not engage in the same conduct in which the defendants in those cases did or even that the defendants' conduct in those cases was somewhat more egregious than defendant's. It does not, however, automatically follow that defendant did not violate the statute.
The common thread that runs through Gibbs, Meister, and Conner is that the defendants impeded or delayed the officers in the performance of their duties: in Gibbs, the defendant caused the officers to lose control of the situation (Gibbs, 115 Ill. App. 2d at 118); in Meister, the defendant's actions required the officers to engage in further efforts to contact the defendant's wife (Meister, 289 Ill. App. 3d at 339); and inConner, the defendant's conduct caused the officers to interrupt their arrest of the defendant's brother to effectuate an arrest of the defendant (Conner, 42 Ill. App. 3d at 235-36). In the present case, defendant's conduct falls directly in that same thread. Instead of permitting Fleury to question Estrada without impediment or delay, defendant engaged in conduct-interrupting Fleury's conversation with Estrada, following Estrada, directing Estrada not to speak with Fleury without Estrada's mother, and telling Estrada "you know nothing" — that not only impeded Fleury's attempt to question Estrada, but delayed any questioning of Estrada when Fleury was required to deal with the impediments defendant was imposing. This conduct, like the conduct inGibbs, Meister, and Conner, clearly went beyond merely arguing with the officer about the propriety of interviewing Estrada.
The dissent asserts that defendant did not prevent, impede, or delay Fleury's questioning of Estrada, because defendant advised Estrada not to speak without his mother present and Estrada's parents were present on the scene. Thus, according to the dissent, Fleury simply could have brought Estrada to his parents before continuing his questioning. While we do not disagree that Fleury's questioning of Estrada was not completely prevented by defendant's conduct, the fact that Fleury could have eventually accomplished his goal of questioning Estrada by bringing Estrada into the presence of one of his parents does not mean that Fleury was not impeded or delayed in questioning Estrada. In both Meister andConner, the officers obtained their ultimate goals, yet the defendants were found to have engaged in conduct that impeded or delayed the officers' duties: in Meister, the officers were able to serve the defendant's wife within 15 minutes of defendant's conduct simply by making one additional phone call (Meister, 289 Ill. App. 3d at 339, 343), and in Conner, the officers were able to complete the arrest of the defendant's brother after holding the defendant at bay for approximately one to two minutes (Conner, 42 Ill. App. 3d at 235-36). That Fleury might have been able to complete his questioning of Estrada by bringing him to one of his parents shows only that defendant did, in fact, impede or delay Fleury's questioning of Estrada. Had defendant not directed Estrada not to speak without his mother present and had defendant not told Estrada "no sabe" or "you know nothing," Fleury would not have been required to take the further step of bringing Estrada to one of his parents to complete the questioning. Instead, Fleury was unable to question Estrada without impediment or delay, was required to interrupt his questioning of Estrada to handle defendant's behavior, and would have had to seek out Estrada's parents to continue questioning Estrada.
Defendant next contends that there was a fatal variance between the complaint's allegations and the evidence at trial. He argues that the complaint alleges only that defendant "told the witness Bobby Estrada not to answer" Fleury's questions, while at trial, Fleury testified that defendant also stepped between Estrada and the officer.
Generally, a variance between the crime charged and the crime proved is not fatal to the conviction unless the variance is material and it misleads the accused in making his defense or exposes him to double jeopardy. People v. Pergeson, 347 Ill. App. 3d 991, 994 (2004). However, in cases involving obstruction of justice, this court has held that the charge must be pleaded with particularity, and the elements of the charging instrument must be proved as alleged without variance. In re M.F., 315 Ill. App. 3d 641, 645 (2000); People v. Miller, 253 Ill. App. 3d 1032, 1036 (1993). We find that any error was harmless beyond a reasonable doubt. See People v. Swaggirt, 282 Ill. App. 3d 692, 705 (1996). There are three approaches for measuring whether an error was harmless: (1) focusing on the error to determine whether it might have contributed to the conviction; (2) examining the other evidence in the case to see if overwhelming evidence supports the conviction; and (3) determining whether the evidence is cumulative or merely duplicates properly admitted evidence. Swaggirt, 282 Ill. App. 3d at 705.
Under the second approach, the evidence of defendant's guilt was overwhelming. We have already held that defendant was properly charged based solely on his speaking to Estrada. To that end, Fleury testified that as he began to question Estrada, defendant stepped in and asked Fleury why he needed to question Estrada. Fleury tried to walk away from defendant with Estrada, but defendant followed, whispering in Estrada's ear as they walked. Fleury testified that defendant admitted that he had told Estrada not to answer. In his own testimony, defendant admitted that he advised Estrada not to speak without his mother present. Such conduct violates the statute. See Gibbs, 115 Ill. App. 2d at 115. Thus, there was ample evidence to prove that defendant obstructed Fleury even without the additional evidence that he stepped between Fleury and Estrada. Although the evidence was not cumulative of other evidence, it did not materially contribute to the conviction. See Swaggirt, 282 Ill. App. 3d at 705.
The dissent takes issue with our harmless error analysis. Initially, the dissent contends that because the complaint alleged only verbal conduct, it was void and did not invoke the trial court's jurisdiction. However, because verbal conduct can be the basis of a charge of obstruction, the complaint was not void. Accordingly, whether the State introduced evidence of other conduct not alleged in the complaint is a question of ordinary trial error that is subject to harmless error analysis.
The dissent further questions whether there was overwhelming evidence of defendant's guilt. Much of this argument is based on the premise that words cannot be the basis of an obstruction conviction, which we discussed above. Thus, defendant could properly be charged with obstruction based on his speaking with Estrada. Moreover, as defendant admitted that he advised Estrada not to speak with the officer, we find that the evidence overwhelmingly proved the complaint's allegations. The State proved specific acts in the course of a specific incident. Thus, double jeopardy would bar further prosecution of defendant based on this same incident.
Defendant raises the separate point that there was a variance between the complaint and the trial evidence concerning the nature of the officer's authorized act. The complaint alleged that the police were investigating the aggravated discharge of a weapon, while Fleury testified at trial that he questioned Estrada about eggs thrown at a car. We cannot conclude from this alone that the nature of the investigation had changed. Possibly, the egg incident was connected to the shooting in some way. However, even if Fleury questioned Estrada to some extent about a separate incident, we do not find from the limited record that the fundamental nature of the investigation had shifted away from a shooting and onto an egg-throwing incident.
Defendant also contends that he was not proved guilty beyond a reasonable doubt. This argument is based primarily on the premise that words can never be the basis of an obstruction charge. We have already held that defendant could properly be convicted based solely on his words where their effect was to impede or delay Fleury's duties.
Defendant also seems to contend that he was merely giving fatherly advice to his young cousin and on this basis should not have been convicted. The trial court, finding that defendant was not acting "in loco parentis," rejected this contention as a factual matter. Defendant cites no authority that such a defense exists and points to no facts, except perhaps his own testimony (which the trial court did not credit), to support it. Fleury's testimony that defendant was whispering to Estrada seems to permit an inference that defendant's intentions were not so noble.
Defendant further argues that the offense of obstructing a peace officer has become so broad that it violates public policy. Defendant again relies on Raby. Raby was a constitutional decision that recognized that the offense of obstructing was potentially broad enough to punish a defendant simply for expressing his or her disagreement with police actions. Since Raby, the rule has developed that "mere argument" with police does not violate the statute but conduct that goes beyond "mere argument" can be punished. See Meister, 289 Ill. App. 3d at 341; Gibbs, 115 Ill. App. 2d at 117-18; see also Hilgenberg, 223 Ill. App. 3d at 289.
This distinction, like many in the law, may be amorphous and sometimes difficult to apply in a given situation. However, it is reasonable and strikes an appropriate balance between the first-amendment concerns recognized in Raby and the need for effective law enforcement. Thus, defendant is asking us not so much to draw a line as to move the line that has been drawn. Other than Raby itself (which is factually distinguishable), defendant cites no case suggesting that such an action is necessary or appropriate.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
JORGENSEN, J., concurs.
I respectfully dissent from the majority's conclusions in this case. The majority relies entirely upon People v. Gibbs, 115 Ill. App. 2d 113 (1969), for the proposition that a conviction of obstructing a peace officer may stand solely on the basis of the defendant's words. The majority then concludes that defendant's statement of "no sabe" to the child witness was sufficient alone to uphold his conviction and that, regardless, the complaint's failure to include defendant's alleged physical act of stepping in between the child witness and the officer was harmless error. Upon a closer reading of Gibbs, I do not find the facts of this case comparable, and, thus, I do not find that the outcome inGibbs controls.
The majority correctly acknowledges that the Illinois Supreme Court inPeople v. Raby, 40 Ill. 2d 392,399 (1968), quoting Landry v. Daley, 280 F. Supp. 938, 959 (N.D. Ill. (1968), stated that under section 31-1, "resisting" meant "`"withstanding the force or effect of"' or the `"exertion of oneself to counteract or defeat,"'" and "obstruct" meant "`"to be or come in the way of."'" The supreme court further stated that those terms were alike in that "`they impl[ied] some physical act or exertion'" and "`[did] not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe[d] only some physical act which impose[d] an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest.'" Raby, 40 Ill. 2d at 399, quoting Landry, 280 F. Supp. at 959.
Relying on the language in Raby, the Gibbs court determined under its facts that the defendant had interfered with police action. In Gibbs, police officers stopped a group of 10 to 12 boys near the office of The Woodlawn Organization after the officers' received a report about some youth gang trouble in that area. Gibbs, 115 Ill. App. 2d at 115. The officers commenced a search of the group and after about one minute of the search, the defendant came out of the Woodlawn office and demanded to know what was going on. Gibbs, 115 Ill. App. 2d at 115. The defendant was told not to interfere, and the defendant claimed that the officers were violating the boys' constitutional rights. The defendant then told the boys that they did not need to submit to the search and that they should go into the office to avoid further contact. Gibbs, 115 Ill. App. 2d at 115-16. The boys entered the defendant's office, where there were approximately 35 to 40 more youths. Gibbs, 115 Ill. App. 2d at 116.
The court determined that the evidence showed that when the defendant came out, the boys had already submitted to the search, and the search was in progress. Gibbs, 115 Ill. App. 2d at 118. The defendant's directing the boys to join a group of 35 to 40 other youths made it difficult for the officers to pick the boys out of the crowd and caused the officers to lose control of the situation. Gibbs, 115 Ill. App. 2d at 120. The court held that the defendant did not "`merely argue'" with the officers about the search but went further by advising the boys to enter the office, causing the officers to lose control over the search that was already in progress, and causing the officers to be unable to complete an arrest. Gibbs, 115 Ill. App. 2d at 120.
In the case at bar, defendant's statement to the child witness did not cause the officer to lose control of the situation and did not impede his ability to obtain a statement from the child. According to the bystander's report, the child witness's mother was talking to police and his father was in a squad car. Whether defendant stated "no sabe" as the officer contends or whether he told the boy not to speak without his mother present, since the boy's parents were in the vicinity, defendant's statement neither prevented the officer from interviewing the child at the time nor delayed the investigation in progress. Thus, the defendant's alleged statement was not shown to impede the officer's actions other than perhaps by obliging him to walk toward the child's mother and question the child in her presence.
Further, I find the cases cited in support of the majority opinion distinguishable from these facts. See People v. Meister, 289 Ill. App. 3d 337 (1997) (the defendant provided false information regarding his wife's whereabouts where police had subpoena to serve his wife, thereby causing police to take further steps to locate the wife to complete police action of service); People v. Conner, 42 Ill. App. 3d 234 (1976) (the defendant revealed an empty gun holster while threatening to kill police if they did not release his brother from their custody, which required police to stop their arrest of the defendant's brother and take additional action to subdue the defendant). Unlike in Meister and Conner, defendant neither attempted to hide the child witness from the officer (Meister) nor caused the officer to stop questioning the child and change the course of the police action in order to subdue defendant in some way (Conner). At worst, under the officer's version of defendant's conduct, defendant advised the child that he did not know anything, which did not mean that the child could not respond to the officer's questions. Under defendant's version, he advised the child to talk to the officer only with his mother present. Either way, the officer was not prevented from interviewing the child at that time, because both the child and his parents were in the area, according to the bystander's report.
Under Raby and subsequent case law, courts have provided that to sustain a conviction under section 31-1 Illinois law requires a defendant to engage in a physical act intended to interfere with an officer's exercise of his duties. Raby, 40 Ill. 2d at 398-99; People v. Falls, 387 Ill. App. 3d 533, 538 (2008). While Gibbs, Meister, andConner appear some what lax on the physical act requirement, I do not find those cases to hold that mere words are sufficient to sustain a conviction under section 31-1, as those cases involved facts that demonstrated more of an interruption in the course of police conduct than is present here. The facts of this case seem more comparable to those inPeople v. Weathington, 82 Ill. 2d 183 (1980). In Weathington, the defendant refused to give information to the police officer booking him after he was arrested for aggravated battery, but he agreed to provide the information after he was placed in a holding cell for several minutes. Weathington, 82 Ill. 2d at 185. The supreme court held that where the defendant had merely argued with the officer as to when he would answer the booking questions and had then, after a brief amount of time, answered the questions, no violation of section 31-1 had occurred.Weathington, 82 Ill. 2d at 187. Specifically, the supreme court stated that because it decided that "the defendant engaged in mere argument with the officer, [it] need not decide * * * whether an activity falling between mere argument and a physical act could constitute a violation of section 31-1." Weathington, 82 Ill. 2d at 187. Thus, I disagree with the majority's conclusion that mere words are sufficient where the supreme court has not held as such and where our facts do not suggest that the words caused a change in the course of police conduct.
Having determined that defendant's saying the words "no sabe" or instructing the child not to speak to officers without his mother present are insufficient to sustain a violation of section 31-1, I disagree further with the majority's conclusion that the charging instrument's failure to include defendant's alleged action of walking in between the officer and the child was harmless error. The complaint alleged only that defendant told the child witness "not to answer the questions of Ofc. Fleury thereby obstructing Officer Fleury's investigation." The complaint made no mention of a physical act, namely the act of stepping between the officer and the child witness, making it "impossible for Officer Fleury to continue questioning" the child, as the bystander's report summarizes Officer Fleury's testimony.
Initially, I disagree that applying the harmless error analysis is the proper approach in determining whether the complaint's deficiency is fatal, as I explain later. However, even if the majority's harmless error analysis did apply, I disagree that there was overwhelming evidence of defendant's guilt. There is no evidence other than the officer's conclusory testimony that defendant's body position made it impossible to interview the child. See People v. Martinez, 307 Ill. App. 3d 368, 373 (1999) (the defendant's act of standing in between the officer and the suspects, coupled with the officer's testimony that because of the defendant's position he feared for his safety and for the security of his weapon and was distracted and unable to focus on the arrests, was sufficient to uphold probable cause for obstructing a peace officer arrest). The officer did not testify as to how long defendant allegedly stood in this position. The bystander's report merely states that Officer Fleury testified that he began to walk away with the child witness when defendant followed and whispered "no sabe." Officer Fleury then stopped to confront defendant and began speaking with defendant. Defendant then "stepped between the officer and [the child witness] making it impossible for Officer Fleury to continue questioning" the child witness. I find it significant that Officer Fleury was walking with the child and chose to stop this action to speak with defendant, who at that point said nothing to him directly. Under these facts, I do not find overwhelming evidence of defendant's guilt, as the majority does. However, I question whether the majority has properly analyzed the charging instrument.
As stated by the majority, a variance between the crime charged and the crime proved is not fatal to the conviction unless the variance is material and misleads the accused in making his defense or exposes him to double jeopardy. Pergeson, 347 Ill. App. 3d at 994. The deficiency in the State's complaint in this case goes to the nature and elements of the offense, which I find renders the charge void, as in People v. Fox, 117 Ill. App. 3d 1084, 1086-87 (1983). In Fox, the complaint charged the defendant with obstructing a peace officer "by attempting to conceal the whereabouts of Joe L. Pate," but it failed to include any physical act that supported the offense, as is required to sustain a conviction.Fox, 117 Ill. App. 3d at 1085-86. The court found that the act or acts that formed the basis of the charge were not described sufficiently to afford the defendant full protection against double jeopardy and that such a deficiency was not immaterial but went to the nature and elements of the offense. Fox, 117 Ill. App. 3d at 1086-87. Similarly, in this case, defendant's words were insufficient to form the basis of the offense, and I cannot agree that defendant was allowed to fully prepare his defense without the complaint including the allegation that he stepped in between the witness and the officer. Having no indication of an allegation that he physically blocked Officer Fleury from the child witness, defendant was not afforded an opportunity to call witnesses to dispute the allegation. Thus, I would find that the State's failure to include the allegation in the complaint was a material deficiency that rendered the charge void.
As stated, I question the majority's analysis that the charge was not void because the error was harmless. The majority outlined the three approaches in determining whether an error was harmless beyond a reasonable doubt: (1) focusing on the error to determine whether it might have contributed to the conviction; (2) examining the other evidence in the case to see if overwhelming evidence supports the conviction; and (3) determining whether the evidence is cumulative or merely duplicates properly admitted evidence. However, the question is whether the offense charged is set forth sufficiently that an accused can properly prepare his defense and raise the judgment as a bar to a later prosecution for the same offense. People v. Taylor, 84 Ill. App. 3d 467, 469 (1980). To be fatally defective, the variance must be material and of such character as to have misled the accused in making his defense or exposed him to double jeopardy. Taylor, 84 Ill. App. 3d at 469. Under this test, all of the evidence produced at trial is considered in determining whether a trial is a bar to future prosecutions. Taylor, 84 Ill. App. 3d at 469.
In Taylor, the complaint charged the defendant with pushing and shoving a police officer, but evidence at trial showed only that she had pulled the officer's hair. Taylor, 84 Ill. App. 3d at 469. The court applied the principles stated herein and determined that the defendant's conviction would bar any future prosecutions concerning the incident in question. Taylor, 84 Ill. App. 3d at 470. "Where, as here, the crime involved, namely, obstructing a peace officer engaged in the execution of his official duties, can be committed by several acts, a variance between the act named in the charging instrument and the act proved at trial will not be fatal." Taylor, 84 Ill. App. 3d at 470. While no evidence was adduced at trial supporting the allegation that the defendant pushed or shoved the officer, the evidence did establish an act that could have led the jury to find the defendant guilty of obstructing a peace officer.Taylor, 84 Ill. App. 3d at 470. Thus, the court held that the proof of the crime conformed to the essential allegations of the charging instrument. Taylor, 84 Ill. App. 3d at 470.
In this case, I do not believe that the evidence at trial "conformed to the essential allegations of the charging instrument," because the charging instrument failed to allege an act that could have been proven to sustain a conviction. Regardless, in reviewing all the evidence adduced at the trial, I still believe that there was no evidence regarding a physical act that could sustain the conviction, as the bystander's report indicated only the officer's conclusory allegation that defendant stepped between him and the child witness. Even accepting that testimony as true, there was no evidence supporting that defendant's body position made it impossible for Officer Fleury to speak with the child for any length of time. I would thus reverse defendant's conviction, as the complaint insufficiently alleged the crime charged.