People v. English , 287 Ill. App. 3d 1043 ( 1997 )

                             No. 3--95--0406

_________________________________________________________________

                             IN THE

                             APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                             A.D., 1997

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 14th Judicial Circuit,

                               )  Henry County, Illinois

    Plaintiff-Appellee,        )  

                               )

    v.                         )  No. 94--CF--221

                               )  

DALE A. ENGLISH,                )  Honorable

                               )  Jay M. Hanson

    Defendant-Appellant.       )  Judge, Presiding

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JUSTICE LYTTON delivered the opinion of the court:

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    The defendant, Dale A. English, was convicted of burglary and

aggravated battery.  720 ILCS 5/19--1; 12--4 (West 1994).  He was

sentenced to a 30-month term of probation for the offenses which

was conditioned on his serving 6 months of imprisonment.  On

appeal, the defendant argues that: (1) he was not proved guilty of

burglary beyond a reasonable doubt; (2) the trial court erred in

commenting on photographs in evidence; and (3) the trial court

should not have instructed the jury on resisting arrest.  We affirm

in part and reverse in part.  

    At trial, Esther Ensley testified that at 12:45 a.m. on Au-

gust 23, 1994, she awoke after she heard a loud crash.  She looked

out her bedroom window and saw a group of men standing behind a

Pepsi truck in front of a Super-Valu grocery store across the

street.  As she watched the men, they ran toward a nearby apartment

building.  She then saw a man with dark hair in blue jeans and a

white tee shirt take a case of bottles out of the truck, put it on

his shoulder and carry it away.  Ensley said she got a side view of

the man's face.  The men were laughing at him.  The man then went

in back of the building beyond her view.  She said that the light-

ing in the area was good and that she had no trouble seeing the man

or the truck.  She then called the police.

    Ensley further testified that when the police arrived, the man

that had removed the bottles from the truck talked to the officer.

Ensley heard the man tell the officer that the people who had taken

the bottles had left.  Ensley then called the police again and told

them that the man was lying and that he was the man who had stolen

the bottles.  Officer Underwood then came to her house.  She told

Underwood that she was positive that the man he had been speaking

to had lied about taking the bottles.  Ensley identified the defen-

dant in court as the man who had taken the bottles.  

    Police officer Harry Underwood testified that on August 24,

1994, he received a call at 12:45 a.m. to report to the Super-Valu.

When he arrived at the scene he spoke to some people, including the

defendant.  He received a dispatch over the radio that identified

the defendant as the person who had taken the bottles.  He then

went to the house across the street and spoke to Ensley.  After

speaking to her, he arrested the defendant.

    Underwood further testified that he later drove the defendant

to the police department and took him into an interrogation room.

The defendant refused to answer questions and began swearing at

him.  Underwood told him that he would have to go back into the

holding cell.  As he reached down to grab the defendant, the defen-

dant sprung out of the chair, hit Underwood in the chest, threw him

into the wall and put him in a headlock.  Other officers came into

the interrogation room and assisted Underwood in subduing and

handcuffing the defendant.

    The defendant testified that he was attending an apartment

party near the Super-Valu store.  He left the apartment to look for

his friend and noticed the police outside.  He listened to the

police officer's conversation with some other men and then went

back to the party.  When he arrived back at the apartment, another

police officer told him that someone had accused him of stealing

pop bottles.  He returned to the store and Underwood arrested him.

    The defendant admitted that he swore at Underwood at the

police station, but testified that in response, Underwood grabbed

him and ripped the gold chain from his neck.  When the defendant

pushed Underwood away, the officer grabbed him around his upper

body and slung him on the desk.  The defendant told Underwood that

he was not going to fight, but Underwood pushed him and hit him in

the mouth.

    Steven Johnson, the defendant's private investigator,

testified that he had photographed the police station, the Ensley

house, and the Super-Valu.  He said that some of the photographs

were taken without a flash and therefore were darker that what he

had actually seen the day he took them.  The photographs were then

admitted into evidence.  

    The trial court then repeated Johnson's comment to the jury

about some of the photographs being darker than it actually was on

the day they were taken.  Defense counsel responded that he did not

introduce the photographs taken without a flash into evidence.  The

trial court then looked at the photographs and questioned Johnson

about them.  The trial judge then stated to the jury that the

admitted photographs actually did depict what Johnson saw the day

he had taken them.  

    After the close of evidence, the court gave the jury Illinois

Pattern Instruction No. 24--25.20.  Illinois Pattern Jury Instruc-

tions, Criminal, No. 24--25.20 (3d ed. 1992).  That instruction

states as follows:

         "A person is not authorized to use force to

         resist an arrest which he knows is being made

         by a peace officer, even if he believes that

         the arrest is unlawful and the arrest in fact

         is unlawful."

    On appeal, the defendant first argues that he was not proved

guilty of burglary beyond a reasonable doubt because the evidence

was based on doubtful, vague and unreliable identification

testimony.    

    In reviewing a conviction, this court must ask itself whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.  People

v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985).  It is well

settled that a defendant's conviction may be affirmed based upon

the identification testimony of a single witness who had an

adequate opportunity to observe the defendant.  People v. Phillips,

99 Ill. App. 3d 362, 425 N.E.2d 1040 (1981).

    Here, we find Ensley's identification testimony to be suffi-

ciently reliable to support the burglary conviction.  Ensley

watched the defendant take the bottles from the truck and heard him

deny doing so to the police.  She identified him at the scene and

again at trial.  Any questions regarding her ability to identify

the defendant were primarily for the trier of fact to resolve.

Accordingly, we find that the defendant was proven guilty of

burglary beyond a reasonable doubt.      

    Next, the defendant argues that the trial court erred in

commenting on the credibility of the defense's evidence to the

jury.  Specifically, he refers to the court's comments about the

darkness of the photographs.

    A judge's comments constitute reversible error only if the

remarks prejudice the defendant.  See People v. Snulligan, 204 Ill.

App. 3d 110, 561 N.E.2d 1125 (1990).  It is the defendant's burden

to show that he has been harmed by the trial court's remarks.

People v. Wells, 106 Ill. App. 3d 1077, 436 N.E.2d 688 (1982).  

    Here, the defendant was not harmed by the trial judge's

comments.  In fact, the comments assisted the jury and actually

benefited the defendant.  If the judge had simply admitted the

photographs into evidence, the jury may have mistakenly believed

that some of those photographs portrayed the lighting as darker

than it actually was.  If so, the jury might have believed that

Ensley had a better opportunity to view the defendant than she

actually did.  Instead, the judge correctly stated that the photo-

graphs admitted fairly depicted the lighting of the areas.  There-

fore, the judge's comments clarified a potential misunderstanding

and did not result in prejudice to the defendant.  We find no

error.

    Finally, the defendant argues that the trial court committed

reversible error when it instructed the jury on resisting arrest

when he was never charged with that crime.

    The law is clear that the jury can be instructed on only the

crime charged and offenses included within that crime.  People v.

McCauley, 2 Ill. App. 3d 734, 277 N.E.2d 541 (1972).  The natural

result of giving an instruction based on an uncharged crime is

prejudice to the defendant.  People v. McCauley, 2 Ill. App. 3d

734, 277 N.E.2d 541 (1972).  Therefore, it is reversible error to

inject into the case, by way of instruction, an issue which is not

properly before the jury.  Shore v. Turman, 63 Ill. App. 2d 315,

210 N.E.2d 232 (1965).

    In McCauley, the defendant was charged with aggravated

battery.  The trial court instructed the jury on resisting arrest

and attempted escape.  On appeal, the court found that instructing

the jury on resisting arrest and escape when they were not charged

was error and created prejudice to the defendant.  "The law is

clear that the jury can be instructed only concerning the crime

charged."  People v. McCauley, 2 Ill. App. 3d at 736, 277 N.E.2d at

542.  We agree.  

    Here, the trial court erred in instructing the jury on the

charge of resisting arrest.  The basis for the aggravated battery

charge was the altercation with Officer Underwood, which occurred

long after the defendant had been arrested.  Thus, an instruction

on resisting arrest was unwarranted.  Moreover, the defendant was

prejudiced by giving such an instruction.  At trial, the defendant

claimed that he struck Underwood in self-defense.  The instruction

on resisting arrest, however, informed the jury that the defendant

was not authorized to use any force against a police officer in the

course of an arrest.  The instruction could have confused the jury

and led them to conclude that the defendant could not have lawfully

defended himself in the interrogation room.  Thus, the defendant

was hindered from presenting his theory of self-defense because the

improper instruction denied him an affirmative defense to the

aggravated battery charge.

    The judgment of the circuit court of Henry County is affirmed

as to the burglary conviction and is reversed as to the aggravated

battery count.

    Affirmed in part; reversed in part and remanded.

    McCUSKEY and MICHELA, JJ., concur.