This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2010

Occasionally rule 23 orders, though not precedential, contain important legal lessons. One of the most singular lessons teaches that the appellate attorney has a valuable role to play in fashioning the arguments in the brief. In fact, the end-product of an appeal may look quite different from its anticipated form when the client first discussed the case with appellate counsel. In my experience, appeals regularly present opportunities for creative lawyering. Achieving the best result for the client requires legal knowledge, in-depth research of the case law, and imagination. This article discusses one of many examples I could provide on this topic.

Late in 2008, I received a referral from a soon-to-be jurist to appeal a criminal conviction for the crime of obstructing justice. The indictment was based on an allegation that the client falsely told police he "did not know anything" about a friend's hit-and-run accident. (fn. 1) N.B.: (fn. 2) My client was not accused of making untrue statements purporting to relate his knowledge of the facts and circumstances of the collision. Thus, the only claimed falsehood was his disingenuous assertion that he had no knowledge of the accident. The post-trial motion raised the sole issue of whether the State proved the accused guilty beyond a reasonable doubt at a bench trial.

What could be a more daunting appellate task than trying to reverse such a criminal conviction due to insufficient proof of guilt? You will recall that the law requires the reviewing court to view the evidence in the light most favorable to the prosecution (fn. 3); that trial judges are presumed to know the law and to disregard incompetent evidence (fn. 4); that the Appellate Court nearly always declines to second-guess credibility determinations in circuit court (fn. 5); and that reversal will only occur when no rational trier of fact could have found the elements of the crime by the constitutional standard of "beyond a reasonable doubt." (fn. 6) Without doubt, this laundry list of nearly insurmountable legal mountain ranges could weaken the knees of the most determined appellate advocate. In the past 100 or so appeals, I have obtained outright reversal of criminal convictions on review on just four other occasions. (fn. 7) Other relief is far more common in those uncommon cases where the convicted felon or misdemeanant actually prevails on appeal, such as the grant of a new trial, an award of a new sentencing hearing, or vacation of a conviction based on the one-act/one-crime rule.

Yet, as I reviewed the record, I found that the concept of "variance" provided me with the ability to scale eroded hills rather than jagged mountains in the search for relief for the client. This concept applies to only a small fraction of criminal prosecutions, including obstructing justice. In general, a charging document need not allege the particular act constituting the crime or the means used to commit the offense where the governing statute specifies the prohibited conduct or its result. For example, the means used to accomplish the death of another person is not an essential part of a charge of first degree murder. (fn. 8) Similarly, variances regarding the method of committing indecent liberties with a child or aggravated battery do not involve essential allegations of a charging document. (fn. 9) As long as the accused is not misled in preparing his or her defense and is not exposed to another prosecution for the same crime, a variance will not undermine a conviction. (fn. 10)

By contrast, where the statutory provision defines the crime only in general terms, an indictment couched in the language of the statute is insufficient to charge the offense. Instead, for these latter types of crimes, the charging document must specifically state the facts constituting the offense. (fn. 11) Where the charge is based upon statements attributed to the accused, the defendant's comments are one of the elements of the crime, which must be proven without variance. Because the words used constitute both the crime and the means of committing the crime, the indictment must recite the alleged statements verbatim or their substance. (fn. 12)

Therefore, certain crimes require more specification than simply alleging the general wording of the statutes defining the offenses. For example, obstructing justice based on providing false information to police requires an allegation of the precise falsity conveyed to the authorities. (fn. 13) Likewise, obstructing justice based on the destruction of physical evidence must particularly allege the items destroyed. (fn. 14) Other felony and misdemeanor charges falling into this category include perjury (fn. 15), obstructing a peace officer (fn. 16), reckless driving (fn. 17), communicating with jurors (fn. 18), unlawfully communicating with witnesses (fn. 19), official misconduct (fn. 20), and disorderly conduct. (fn. 21)

Remember that the charge of obstructing justice involved in my client's appeal alleged that he furnished false information to the police by telling them he "did not know anything" about a third person's involvement in a traffic accident. I did not challenge the sufficiency of the indictment, which is the common theme of the case law, but conceded that the State complied with the specificity requirement discussed above. Instead, I contrasted the allegation that the client denied knowledge of the accident with the proof at trial. Both the prosecution witnesses and the defendant's testimony concurred that the client made statements claiming some knowledge of the crash based on information supplied to him by his footloose motoring friend.

On this basis, I argued that my client was not proven guilty of the charge alleged by the State because it differed materially from the proof presented at trial. The only falsehood alleged in the charging document was that the defendant mendaciously claimed lack of any knowledge of the hit-and-run event. But the factual assertions in his comments to police were wholly distinguishable from a denial of all knowledge. Prejudice resulted from this discrepancy because trial counsel defended the case on the ground that the Defendant made affirmative statements to the police and never denied all knowledge of the collision. Thus, the trial court erroneously found him guilty based on the untruthfulness of these other, uncharged statements.

The Appellate Court agreed with the argument, noting that the governing statute does not punish the failure to volunteer information to the police, but only an affirmative proffer of false information to them. Thus, even if the client's statements asserting some knowledge of the event were false, he could not be convicted of a different falsehood than the one contained in the indictment. The Court determined that a material difference existed between the indictment and the proof, prejudicing the client in the preparation of the defense and mandating reversal of his conviction.

Thus, the State can fail to prove an accused person guilty beyond a reasonable doubt due to a material variance between the accusation and the evidence where the means of committing the crime constitutes an essential element of the offense. When all else fails, ask yourself if the charge filed against your client is one that requires specific allegations in the charging document of the means used to commit the crime.

Larry Wechter is the primary of the Law Office of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134 - phone: 630/232-4354 - fax: 630/232-4362 - e-mail: Larry served in the Appellate Prosecutor's office for three years, prosecuted felony cases in Kane County for 5 years, and has been in private practice since 1987.


fn. 1 The governing statute defines the crime of obstructing justice in a variety of ways. In this case, the defendant was charged with knowingly furnishing false information with the intent to prevent the prosecution of a third person. 720 ILCS 5/31-4(a) (West 2006)

fn. 2 Nota bene (q.v.)

fn. 3 People v. Givens, 237 Ill.2d 311, 2010 WL 1497518, p. 11 (2010)

fn. 4 People v. McCoy, 207 Ill.2d 352, 355 (2003); People v. Richardson, 123 Ill.2d 322, 361 (1988)

fn. 5 People v. Lara, ___ Ill.App.3d ___, 2010 WL 2672974, p. 8 (4th Dist., 2010)

fn. 6 People v. Givens, 237 Ill.2d 311, 2010 WL 1497518, p. 11 (2010)

fn. 7 My first two victories are reported as In re K.A., 291 Ill.App.3d 1 (2nd Dist., 1997) and People v. Hagberg, 192 Ill.2d 29, 33-34 (2000). The third was a non-published rule 23 order. For the fourth, see "Recklessness versus Negligence or When is a Traffic Accident a Crime?", Bar Briefs, October 2004. The first instance was a juvenile delinquency case, the second and third were bench trials, and the fourth was a jury trial.

fn. 8 People v. Nitz, 242 Ill.App.3d 209, 220-221 (5th Dist., 1993) The death of a specified individual constitutes the essence of the crime. 720 ILCS 5/9-1 (West 2010)

fn. 9 People v. Bradley, 128 Ill.App.3d 372, 378 (4th Dist,. 1984); People v. Foster, 32 Ill.App.3d 1009, 1011-1012 (4th Dist., 1975). The crime of indecent liberties with a child has been deleted from the Criminal Code, but is a precursor to the current offense of criminal sexual abuse. See 720 ILCS 5/12-15 (West 2010). Aggravated battery is defined at 720 ILCS 5/12-4 (West 2010)

fn. 10 Section 111-5 of the Code of Criminal Procedure (725 ILCS 5/111-5 (West 2010)) provides a list of formal defects in charging documents, including among others, "the use of alternative or disjunctive allegations as to the acts, means, intents or results charged."

fn. 11 People v. Gerdes, 173 Ill.App.3d 1024, 1028-1030 (5th Dist., 1988)

fn. 12 People v. Aud, 52 Ill.2d 368, 369-371 (1972); In re M.F., 315 Ill.App.3d 641, 645-646 (2nd Dist., 2000); People v. Yarbrough, 162 Ill.App.3d 748, 749-751 (5th Dist., 1987)

fn. 13 People v. Gerdes, 173 Ill.App.3d 1024, 1028-1030 (5th Dist., 1988); 720 ILCS 5/31-4(a) (West 2010)

fn. 14 People v. Lyda, 27 Ill.App.3d 906, 911-912 (2nd Dist., 1975); 720 ILCS 5/31-4(a) (West 2010)

fn. 15 People v. White, 59 Ill.2d 416, 418 (1974); People v. Aud, 52 Ill.2d 368, 369-371 (1972); 720 ILCS 5/32-2 (West 2010)

fn. 16 People v. Fox, 117 Ill.App.3d 1084, 1085-1086 (4th Dist., 1983); 720 ILCS 5/31-1 (West 2010)

fn. 17 People v. Hayes, 75 Ill.App.3d 822, 824-285 (2nd Dist., 1979); 625 ILCS 5/11-503 (West 2010)

fn. 18 People v. Yarbrough, 162 Ill.App.3d 748, 749-751 (5th Dist., 1987); 720 ILCS 5/32-4(a) (West 2010)

fn. 19 People v. Gemeny, 313 Ill.App.3d 902, 906-907 (2nd Dist., 2000); 720 ILCS 5/32-4(b) (West 2010)

fn. 20 People v. Isaacs, 37 Ill.2d 205, 210-213 (1967); 720 ILCS 5/33-3 (West 2010)

fn. 21 People v. Oswald, 69 Ill.App.3d 524, 527-528 (1st Dist., 1979); 720 ILCS 5/26-1 (West 2010). The list of crimes in this paragraph is illustrative of the category and not necessarily exhaustive.