NO. 4-08-0619 Filed: 9-11-09 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE O F ILLINOIS, Plaintiff-Appellee, v. RAYMOND WRENCHER, Defe ndant-A ppellant. ) ) ) ) ) ) ) ) Appeal fr om Circuit C ourt of Champa ign County No. 07CF95 4 Honorab le Heidi Ladd, Judge Pre siding

.
OPINION MO DIFIED ON DENIAL O F REHEA

RING JUSTICE AP PLETON d elivered the opini on of the co urt: A jury found defendant, Raymond Wrencher, guil ty of tw o counts of aggravated battery (720 ILCS 5/12-4(b)(18) (West Supp. 2007)). The trial court sentenced him to seven y

ears' im prisonm ent for ea ch count, orderin g th at the terms run co nsecutively. Defendant appeals on two grounds: (1) the trial court violated Supreme Court Rule 431(b) (Offi cial R

eports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) during voir dire by failin g to adequ ately question the potential jurors on the four principles in Rule 431(b), an d (2) th e State failed to present sufficient evidence that defenda nt's act of sp itting on a polic e officer was "phy

sical c ontact of a n insultin g or provoking nature" (720 ILCS 5/12-3( a) (W est 2006)). We are issuing this modified decision on denial of defendant's petition for rehearing.

Our basic holdings are the sa me. We ho l d that de fendant h as proce durally forfeited his argu ment that the trial court violated Rule 431(b) and that because the- 2 -

violation does not amount to plain error, the forfeiture must be honored. Nevertheless, in this modifie d deci sion, we have ex panded our disc ussion of this issue by

taking ac

count of the supreme court's recent decision in People v. Glasper , 234 Ill. 2d 173, 917 N.E.2d 401 (2009), whi ch was p ublished after the p arties fi

led thei r briefs i n this ap peal. As for defen dant's al

ternative argument, we still find sufficient evidence that his act of spitting on the police officer was insulting or provoking. Therefore, we affirm the trial court's judgment. I. BACK GROUND A. The Indictment A grand jury returned an indictment chargi ng defen dant with two counts of aggravated battery (7 20 ILCS 5/12-4(b)(1 8) (We st Sup p. 2007)). One count alleged that

on June 5, 2007, he spat blood on a Champaign p olice officer , Mark B riggs. The other count all eged that on the same date, he dug his fingern ails into the hand of ano the r Champaign police officer, Gregory Manzana. B. Voir Dire The trial occurred in June 2008 . At the be ginning of voir dire , the trial court addressed the entire venire as follows:

"The defendant is p resumed to be innocent, and this presumpti on remain s with him through out the cas e[] and i s not

overcome unless[,] from all the evidence, you are convinced[,] beyond a reaso nab le doubt[,] that the defendant is guilty. Before the de fendant can be c onvicted , the State

must prove him guilty beyond a reasonable doubt. The burden of proof is- 3 - on the State, and that burden never shifts. The defe ndant is not required to present evidence, and he is not re qu ired to p rove his inn ocence . The de

fendant i s not requi red to testify. If the defenda nt does n ot testify, the fact that he did not testify may not be considered by you in any way." During its questioning of the first panel, the trial court again recited the principles in Rule 431(b) (Official Reports AdvanceSheet No. 8 (April 11, 2007), R . 431(b), eff. May 1, 2007). The court stated:

"With regard[] to our

four potential jurors, I'm going to go over again the prin ciples o f law you must f ollow[,] and then

I will inquire individually about those

. The defendant is presumed innocent of

the charges against him. Before the d efendant can be convicted, the State must prove him guil ty beyond a

reasona ble doubt. He is not

required

to offer any

eviden ce or testify in his own behalf, and if he elects not to testify, the fact that he did

not testify

may not be

held against him in any

way." The court the n asked the four persons in the first panel--Karen R ay, Nathan Thompson, Gail Carlson, and Brian Daube–if they understood and

accep ted those

principles. Ea ch of the four answered yes. Defense counsel asked eac h of them if he or she was "presuming Raymond

Wrencher to be innocent right now" and if he or she understood that "the State's Attorney ha[d] a b urden of proving him guilty beyond a reasonable doubt." Each a nswered yes. Defense counsel r equested that Thomp son be ex cused. E mily Burd ette- 4 -

replaced him. Instead of repeat i ng the principles from Rule 431(b), the trial court asked Burdette: "THE COURT: Were you able to hear me explain the

principles of law that you have to follow as a juror? MS. BURDETTE: Yes. THE COURT: And did you understand th ose[,] and would you also accept those? MS. BURDETTE: Yes." Defense counsel asked Burdette if she was "presuming Raymond Wrencher to be innocent right now" and if she understood that "the State's Attorney ha[d] a burden of proving him guilty beyond a reasonable doubt." She answered yes to both questions. Ray, Carlson, Daube, and Burdette were selected to be jurors.

The second panel consisted o f Nicole Vangrinsven, Elizabeth Riddle, Nicholas Schneider, and Alex Lewis. Instead of repea ting the Rule 431(b) principles, the trial court asked them the following questions:

"THE COU RT: Mr. Lewis, were you able to hear me explain the principles of law that apply? MR. LEWIS: Yes. THE COURT: Sir, do you understand those[,] and would you accept those? MR. LEWIS: Yes. THE COURT: You as well, Mr. Schneider? MR. SCHNEIDER: Yes.- 5 - THE COURT: So[,] you as well, Mrs. Riddle? MS. RIDDLE: Yes. THE COURT: Do you as well, Ms. Vangrinsven? MS. VANGRINSVEN: Yes." Defense counsel a sked ea ch of the four potential jurors--Vangrinsven, Riddle, Schneider, and Lewis--if he or she

was "presuming Raymond Wrencher to be innocent right now" and if he or she understood that "the State's Attorney ha[d] a burden of pro ving him guilty beyond a reasonable doubt." Each of the four answered y es. The defense

requeste d that Sc

hneide r and Ri ddle be excus ed. Roberta McEntire and Sandra McCabe replac ed them. Again, the trial court di d not repeat the principles from R

ule 431( b) but asked McEntire and McCabe if they had he ard the principles the court explained earlier and if they would follow those principles. They answered

yes to both questions. Defense counsel asked McEntire and

McCabe if they were "presuming Raymond Wrencher to be innocent right now" and if they understood that "the State's Attorney ha[d] a burden of proving him guilty beyond a reasonable doubt." They answered

yes to the se questi ons. Both sides accepted

Vangrinsven, Lewis, McEntire, and McCabe as jurors. There was a 15-min ute recess. The clerk called four more potential jur ors for the

third an d final pa

nel: Stacy Conlee, Greer

Williams, Kathleen Liffick, and Nancy Pellett. Rather th an repe at the Rule 431(b) princip l es, the trial court asked them if they had heard the c ourt explain the principles earlier and if t hey understood those principles and would follow them. They

answ eredyes. Again, defense counsel asked them if they were "presuming Raymond Wrencher

to be innocent right now" and if they understoo d that "the State's Attorney ha[d]- 6 -

a burden of proving him guilty beyond a reasonable doubt." They ans wered yes. The defense requested

that Conlee be excused. Kurt Henke replaced her. The trial court asked Henke if he was "able to hear [the court] explain the principles of law that appl[ied] [to the cas e]" and i f he understood

those principles and was willing to apply them. Henke answere d yes. D efense c ounsel as ked Hen

ke if he was "presuming Raymond Wrencher

to be innocent right now" and if he understood that "the State's Attorney ha[d]

a burden of proving him guilty beyond a reasonable doubt ." Henke answered yes. The parties accepted Williams, Liffick, Pellett, and Henke a s jurors.

The parties

selecte d two altern ate jurors, Georgia O'Connor and Donna Chin. As it turned out, all of the jurors served throughout the trial, and O'Connor and Chin did not have to take anyone's place. C. Evidence at Trial

Gregory Manzana testified that on June 5, 2007, he went to 408 West Maple Street in resp onse to a

report of a domestic

dispute. He arrived in a marked squad car and in f ull uniform. H e saw a c ar in the drivewa y with its engine r

unning, a nd he pulle d i n behind the car so it could not back out. He shone his spotlight on the car, and it appeared to be occupi e d by four to six individuals. These individ uals began exiting the car, and Manzana ordered everyone to get back in.

Defendant ignored

th e or der and continued to walk away. Manzana approached

him and told him to put his hands beh ind his back. Defendant continued walking and made no movement to comply. Manzana grabbed him by the arm, and defendant tried to pull away. Another officer, named Ferguson, grabbed defendant's other arm. Defendant struggled with them. Over and over again, Manzana yelled at defendant- 7 -

to get down

on the ground, but defendant spread his legs and braced himself, resisting thei r efforts to take him down. Manzana brought defendant to the ground by tripping him. The y succeeded in forcing his arms behind his back and p utting the handcuffs on him.

Several other police officers arrived and kept defendant pinned to the ground while Manzana went to check on the welfare of the woman who had called in. After speaking with her, Manzana returned to defendan t. Manzana testified: "A. He was y

elling[, ] and he was still on the ground[,] there in the street. At that point[,] *** we decided to go ahead and move him

to the squad car. I took his right hand with my left hand and grabbed his right arm with my right hand, li ke around the bicep, and

we picked him up, brought him up to his feet. Q. What ha

ppened next? A. At that point[,] he looked me directly in the eye, kind of--he tensed up, I could see his jaw clench, his shoulders kind of tensed up, next thing I know[,] he started squeezing my hand and gripping into it and digging his nails into my fingers. Q. What ha

ppened next? A. *** I tried to pull my hand away[,] and his grip was too strong. I couldn't pull it away, so I gave hi m a couple of diversionary

strikes to the stomach[,] and he i m mediately let go, and I was able to pull my ha nd off. Q. Now[, ] when the defen dant *** had ah old of your- 8 - hand, did that cause you any pai n? A. Yes. Q. Could you explain? A. *** [H]e

was squee zing the

heck out of my hand there, and it felt *** like his nai ls were c utting into my skin there, and it just [was] like *** somebody is just trying to crunch y our hand there ***." Manzana

testified that after defendan

t let go of his hand, "the tips of [his] middle ring and [little] finger[s] [of his left hand] were red and throbbing[] and [he] had

a cut *** on

the insi de of [his

little finge r]." Peop

le's exh ibit No. 4

was a ph otograph o f a small laceration on the tip of Manzana's little fing er. He testified that defendant had inflicted this injury.

After Manzana

freed h imself from defendant's grasp, other police officers escorteddefendant to the squad car. Defendant sat down in th e squad c

ar but would n ot put his legs

in. He started kicking at officers. Manzana warned him to stop resisting or he woulduse pepper spray on him. Defendant replie d to go ahead, w hereupon he resumed kicking at the officers. Manzana gave him a one -second burst of pepper spray.

Mark Briggs testified

that after Manzana applied the pepper spray, defendant stopped kicking at the officers but still refused to put his legs in the squad car. An officer went around to the driver's side, grabbed defenda nt by the arms, and pulled him the rest of the way into the squad car so they could shut the rea r passe nger door. Defendant immedi ately

started thrashing ar ound . Concerned that he might kick out the windows, Briggs askedthe other officers if they had leg restraints. They had none with them, so leg- 9 -

restrai nts had to be

brought to the

scene. In the me antime, Briggs talked to defendant and tried to calm him down.

When the leg re straintsarrived , defend ant ste pped o ut of the squad car as directed. Briggs testified:

"I turned him aroun d, had h im face the trunk. He is standing

on the d ri ver's side of the car at this point. Officer Shipley steppedup, appliedthe leg restraints, double[-]locked them so they wouldn't ti ghten down on his a nkles, an d then[,] a ll of a sudden[,] Raymond

turned an d spit a mouth full of blood and pepper spray across the front of my shirt." Briggs "immed

iately re acted by

forcing [d efe ndant] down over the trunk of the car to prevent [himself] from being sp[a]t on again. In [the process ], [d efendan t] hit his le

ft eyebrow on the back windshield of the car." Briggs did not know specifically how defendant had come to have a mouthful of blood.

According to Briggs , it was "fo r the purpo se of officer safety " that he h eld defenda nt's head down on the trunk of the squad car. When defendant tried to pull hims elf back up, B riggs u sed his thumb to apply pressure to the mandibular joint, and another officer, named Gallagher, put defen dant in a w rist lock. Briggs testified: "[W]e just basically held him station[a]ry while we ordered hi m to stop spitting."

With his face p ressed

agains t the trunk of th e squad c ar, defe ndant told

Briggs and Gallagher, " 'Okay, I'm done. I'm sorry. I won't do it again.' " Briggs pulled him up and directed him to sit inside the squad car. Defendant did so. Briggs testified : "A. *** As soon as we closed the door, he started spitting- 10 - all over the back of the squad car again[] and cursing at us and basica lly going off. Q. What ha

ppened after that? A. We applied what's called a [']spit hood['] to his head. It kind of goes over your head and covers your mouth so if y

ou want to spit, the only person [who is] going to be affec ted is you." Briggs identifi ed Peopl e's exhibit No. 1 as a photograph of his uni

form shir

t. He testi fied the p hotograph was taken immediately after defendant spat on him and it showed blood on the front of the shirt and down the left sleeve.

Defendant took the stand and denied digging his fingerna ils into Manzana's hand an d spittin g on Brig gs. He d id not know

how the bloo d had got on Brigg s's shir t. The jury found defendant guilty of both counts of aggravated battery. Afterward, one o f the alternate jurors, Georgia O'Connor, wrote the trial c

ourt, expressingdissati sfaction with the tri al. She c riticiz ed defe nse couns el for faili ng to question witnesses and for his general failure to "do any defending." She thought defense counsel should

have pointed out that the photographed wound on Manzana's little finger didnot look like a fingernail wound. She also thought defense counsel could have done a better job exploring discrepancies in the police officers' testimony. II. ANALYSIS A. Rule 431(b)

1. Our Standard of Review De fendant argues th at in ques tioning th e potentia l jurors dur

ing vo ir dire , th e- 11 -

tr ial court faile d to comply with Illino is Suprem e Court Rule 431(b) (Offi cial Re

ports Adva nce Sheet No. 8 (April 11, 2007), R . 431(b), e ff. May 1, 20 07). For tw o reasons , defendant suggests that we should evaluate this argument de novo . First, the parties have

no factual di spute as to what questi ons were asked of th e potenti al jurors. By contrast, a deferential standar

d of revie

w would be justified i f t he trial court had to assess the credib ility

of witnesses, for trial c ourts are i n a better

position than reviewing courts to do that. See People

v. Woods , 184 Ill. 2d 130, 146, 703 N.E.2d 35, 42 (1998). In the present case, ascerta

ining wh at questio ns were a sked of potential jurors requires no asse ssment of any witness's credibility. All we have to do is re ad the tra

nscript of voir dire . There were

no witnesses as of yet and hence no occasion for assess ing their credibility. See People v. Luczak , 374 Ill. App. 3d 172, 176, 869 N.E.2d 1 185, 1189 (200 7).

Second, defendant notes that the cons truction of a supreme court rule, such

as Rule 431(b), is a question of law. See Robidaux v. Oliphant , 201 Ill. 2d 324, 332, 775 N.E.2d 987, 992 (2002). The State does not disagree that in deciding the issue regardi ng Rule 431(b), we should apply a de novo standard of review. Therefore, we will decid e d e

novo whether th e trial c ourt's metho d of inqui ry during voir dire calls for th e vacati on of defenda nt's convictions and the remand of his c ase for a new

trial. See People v. Yus uf , No. 4-08-0034 slip op. a

t 5 (April 13 , 2010), _

__ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___.

2. The Doctrine of Plain Error If the trial court makes an error, the defendant must do two things in order for us to review the error. First, the defendant must object at the time the court makes the

error. Second , the defe ndant mus t raise th e error again in a posttrial motion. People v. Lewis , 234 Ill. 2 d 32, 40, 912 N. E.2d 1220 , 1225 (200 9). Defend ant took neither of those- 12 -

steps with resp ect to the e rror in voir dire , and he concedes that as a consequence, he has forfeited review of the error.

Defendant urges us, however, to disregard the forfeiture becausehe contends that the error in voir dire was plain error. The doc trine of pla

in error allows us to review

a forfeited error in either of two circumstances: (1) the evidence in the case was so close ly balanced that the error might have been the decidi ng factor that tipped the scales in favor of conviction; or (2) the error was so serious that reg ardless of whether the evidence was closely balanced , the erro r denie d the de fendant a

substanti al right a nd there fore a fai r trial. People v . Herron , 215 Ill. 2d 1 67, 178-79, 830 N.E. 2d 467, 4 75 (2005). Accord ing to defendant, the trial court's error in voir dire was plain error in the second sens e.

Before deciding whether the trial court committed plain error, we might as k whether the court committed any error at all. People v. Bannister , 232 Ill. 2d 52, 65, 902 N.E.2d 571, 581 (2008). Without error, there can be no plain error. If we fin d error, we then can take up the question of whether the error amounts to plain error.

According to defendant, the t rial court violated Rule 4 31(b) in two w ays. Fi rst, defendant complai ns that the court faile d to questi on the pote ntial jurors individ ually about the four pri nciples in Ru le 431(b). Under the plain language of Rule 431(b), however, a court has the option of questioning the pote ntial jurors as a group. The rule reads as follows: "The court shall ask each potential juror, individ ually or in a group , wh ether t hat juror understands and accepts the following princi ples : (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a- 13 - defendant can be convicte d the State must prove

the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any

eviden ce onhis or her

own behalf ; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquir y of a pros pective juror sha ll be made into the defendant's failure to testify when the defendant objects. The court's method of inquiry sh a ll provide each j uror

an opportunity

to respon d to specific questions concerning the principles set out in this section." (Emphasis added.) Official Reports Advance Sheet No . 8 ( April 11, 2007), R . 431(b), e ff. May 1, 2007. Second, defenda

nt contend s that the l ength of tim e between the trial c

ourt's recitati on of the four pr inciple s and its

putting to the potenti al jurors th e genera l question of whether th ey under stood the p rincip les and would follow

them greatly reduced whatever usefulness the question otherwise would have had. Defendant observes: "When the final panel of jurors were [ sic ] questioned, the transcript reflects th at 89 pages of transcript had been rec orded andthe court had adjourned for a 15[-]minute recess since i nforming the jurors about the 431(b) principles." We agree with defendant that the questioning on a princi ple from Rule 431(b) must occur soon after the court's statement of the prin ciple to the potential jurors. See People v. Wheeler , No. 1-08-1370 slip op. at 6-7 (Marc

h 31, 201 0),

___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___ . Reciting the four principles and then,

an hour or so later, asking the potential jurors if they understood the principles and would- 14 -

follow them tend s to defea

t the purpos e of the que stioning a nd re duces it to a pro forma exercise. Hence, we find err or in the tr ial court's

method of questioning the potential jurors d uring voir dire . A recent decision by the supreme c ourt, however, refutes defenda nt's argument that the error was plai n error. In Glasper , 234 Ill. 2d at 188, 917 N.E.2d at 411, before voir dire , defense counsel requested the trial court to ask the potential jurors if they understood and accepted the prin ciple tha

t if the de

fendant c

hose not to

take the stand

at trial, th at choic

e was not to

be held against him. The court responded that it wouldinstruct the potential jurors on th at princ iple but would not que stion them about it. Glasper , 234 Ill. 2d at 188, 917 N.E.2d at 411. The court addressed the potential jurors as

a group, instructing them that they were not to consider in any way the defendant's choice to refrain from testifying. Glasper , 234 Ill. 2d at 188, 917 N.E.2d at 411. The court then questioned the potential jurors individually but did not ask them if the defenda nt's deci sion not to testify would influence their verdicts. Glasper , 234 Ill. 2d at 189, 917 N.E.2d at 411. Under the version of Rule 431(b) that was in ef fect at the time of trial, the court was obligated, upon the defendant's request, t o ask each potential juror, individually or in a group, whether th at juror und erstood and acc epted ce rtain co nstituti on al principles, including the prin ciple tha t "'the defe ndant's fa

ilur e to testify [could] not be held against him.'" Glasper , 234 Ill. 2d at 187, 917 N.E.2d at 410, quoting 177 Ill. 2d R. 431(b). (The use of the word "failure" in Rule 431(b) is unfortunate. If defend ants have an abso lute right not to testify an d their d ecisio n to avail themselves of that right is not to be held against them in any way, that choice is not a "failure" on thei r part.)

A s the supreme court noted, it had amended Rule 431(b) effec tive May 1 ,- 15 -

2007, by removing the condition that the defendant request such questioning (Official Reports Advanced Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). Glasper , 234 Ill. 2d at 187 n.2, 917

N.E.2d at 411 n.2. Now the rule affirmatively requires the trial court to question potential jurors on the constitutional principles lis ted ther ein, reg ardless of whether the defendant requests such questionin g. The s upreme court decided Glasper under the preame nded ve rsion of R ule 431(b), the versi on that begins with the qualifying phrase "If requested by the

defenda nt." 177 Ill. 2d R. 4 31(b). The defendant in Glasper argued th at th e trial court had c ommitted reversi ble

error by failin g to questio n the potenti al jurors o n their ob ligation n ot to draw any adverse inference from his choice to refrain from testifying--a question Rule 431(b) (177 Ill. 2d R. 431(b)) required the court to ask upon request by the defendant--and he further argued that this error could nev er be con sidered harmless. Glasper , 234 Ill. 2d at 185, 917 N.E.2d at 409. Although the

supreme court agre ed with the de fendant that the trial court had violated Rule 431(b) and thereby had erred ( Glasper , 234 Ill. 2d at 189, 917 N.E.2d a t 411), th e supreme court dis agreed that such an error

was prej udicia

l per se and ca

use for automatic

reversa l ( Glasper , 234 Ill. 2d

at 199-200 , 917 N.E.2 d at 417-18). The error, the supreme co u rt said, "[did] not involve a fundamental right[] or even a constitutional protection"; the defendant's right to the questioning of potential jurors de rived so lely from Rule 431(b)

. Glasper , 234 Ill. 2d at 193, 917 N.E.2d at 413-14. Not every violation of a supreme court rule mandated revers al. Glasper , 234 Ill. 2 d at 193, 91 7 N.E.2d at 41 4. Questioning of potential jurors in accord ance wi

th Rule 431(b ) was not in dispen sable to a fair trial; that much was evident from the original version of the rule (177 Ill. 2d R. 431(b)), which required such questioning only upon request by the defendant. Glasper , 234 Ill. 2 d- 16 -

at 196-97, 917 N.E.2d a

t 416. Omi ssion of s uch questi oning was not structural e rror or er ror from which harm could be presumed. Glasper , 234 Ill. 2d at 199, 917 N.E.2d at 417. The supreme court was unwilling to presume that the jurors were biased, and that they ignored the trial cour

t's admonitions and instructions, just because the trial court failed to ask them the questions that Rule 431(b) required. Glasper , 234 Ill. 2 d at 201, 917 N.E.2d at 418. The supreme court concluded: "[A] violation of Rule 431(b), as applied in this case, does not require automatic reversal and is ame nabl e to harmless error review." Glasper , 234 Ill. 2d at 200, 917 N.E.2d at 418. After reviewing the evidence, the supreme court found that the error was "harmless beyond a reasonable doubt" and that "no rational juror would have

acquitted

[t he] defen dant of the offenses for which he was charged." Glasper , 234 Ill. 2d at 202-03, 917 N.E.2d at 419. (It is unclear why the supreme court used the standard of harmless beyond a reasona ble doubt , for, as Justice Burke observed in her dissent , that stand ard trad itionally applied only to con stitutiona

l error an d th e majority ha d held that the right to the questi oning of potential jurors deri ved solely

from Rule 431(b) and not from the federal or state constitution. Glasper , 234 Ill. 2d at 220 n.4, 917 N.E.2d at 429 n.4 (Burke , J., dis senting). )

After announcing its holding, the supreme court added a compli cation: "We emphasize

that this holding is limited to the version of Rule 431(b) (4) that was in effect at the time of the ins tant trial, and would not nece ssarily

apply to subsequent versions of the rule." Glasper , 234 Ill. 2d at 200, 917 N.E .2d at 418. A s we said, before it was amended effective May 1, 2007, Rule 431(b) required the trial court to question the potential jurors

on the four pri nciples

only if the

defenda nt reque sted the court t o do so. 177 Ill. 2d R. 431(b). T he amended rule, which applies to this case, requires the trial court to ask the- 17 -

questions sua sponte . Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), e ff. May 1, 2007. Accor ding to Glasper , its holding "would not necessarily apply"--tha t is to say , may or may no t apply-- to the pres ent versi on of Rule 4 31(b). The supreme court mere

ly

was being cautious, deciding only what it had to dec ide. The case before the supreme c ourt didnot involve the current version of Rule 431(b), and judicial restraint counseled against deciding a questio n that was

not before

the court. It does not follow, however, that we are free to disregard

the rationale in Glasper simply because the current version, rather then the former ver sion, of th e rule is before us. To legi

timately treat the r ationale

of Glasper as irreleva nt, we will hav e to d o more tha n (1 ) point out the change in Rule 4 31(b) from questioning by request to question ing sua spon te and (2 ) quote the language in Glasper limiting its holding to the previous version of the rule. Asserti ng (1) and (2) only lea ves us with the que stion, So what?

In other words, if, before the amendm ent of Rule 431(b), the

federal or state constituti on did not r equire th e trial c ourt to questi on potenti al j urors on the f our principles in Rule 431(b) and the omission of such questioning was not structural error, it is unclear how the amendment of Rule 431(b) could cause the opposite propositio ns t o hold true. Surely the amendment of supreme court rules cannot i ncreas e or decrease constitutional protections. A procedure does not logically attain constitutional status, or metamorphose into a "substantial right" (134 Ill. 2d R. 615(a))-- meaning a due-proces s ri ght ( People v. Lindsey , 309 Ill. App. 3d1031, 1034, 723 N.E.2d 841, 844 (2000 ), aff'd , 201 Ill. 2d 45, 772 N.E.2d 12 68 (2002))-- simply by virtue of a r

ule chang e requiri ng the tria l court to follow the procedure sua sponte .- 18 - The issue still is the observan ce of a supreme court rule, nothing more. Today a trial court would be obligated to question potential jurors for b asica lly the sa me reas on the trial court was obligated to do so in Glasper : Rule 43 1(b) requir es it. Ch anging th e rule

so as to make that obli gation automatic rather than dependent upon the defendant's req ues t does not change either the so urce of the obl igation or the nature of the violation. In Glasper , the trial cour

t violated

Rule 431(b ) by deny

ing the d efendan

t's request to question the potential jurors on a princi ple in Rule 431(b). To day, a tr

ial court wo uld violate

Rule 431(b ) b y failing to question the potential jurors sua sponte . In both situations, the trial court wo uld have done the same thing: vi olate Rule 4 31(b). The re is no q ualitative difference between the two violations, and if there is no qualitative difference, the prejudice analysis is the same.

In short, just because the obligation is now auto matic, i t does not l ogically follow that prejudice is automatic, any more than it was in Glasper . Automatic prejudice should not be confused with an automatic obligation. The question of whether prejudice should be presum ed from a

violation

of the rule h as nothi ng to d o wit h the triggering mechanismwithin the rule. Breakin g the rule i s still a vi olation of th e rule, not a violation of the constitution.

We conc lude, therefore, that the rationale in Glasper applies to the present version of Rule 431(b). See People v. Hammonds , No. 1-08-0194 slip op. at 56-57 (February 11, 2010), ___ Ill. App. 3d ___, ___, __ _ N.E.2d ___, ___. Because questioning potential jurors in accordance

with Rule 4 31(b) is not indisp ensable to a fair tr

ial ( Glasper , 234 Ill. 2d at 196, 917 N.E.2d at 416), we hold that the trial court's noncompliance with Rule 431(b) in this case was not plain error, i.e. , "error *** so serious that it affected the fairness of the- 19 -

defenda nt's trial and challenged the integrity of the judicial proces s." Herron , 2 15 Il l. 2d at 187, 830 N.E.2 d at 479- 80. We further find the error to be harmless because no rational juror could

have ac quitted de

fendant. 3. Criticism of Defense Counsel By the Alternate Juror Defendant points to O 'Connor's le tter as evi denc e that the trial cour t's noncompliance with Rule 431(b) had the prejudicial effect of confusing the jurors about the burden of proof. Defendant argues: "[E]ven though the court announced the [Rule] 431(b) principles (including the principle that [defendant ] did not have to present evidence) in [O'Connor's] presenc e, her letter clearly shows that she was under the impression that [defenda nt], or, more a

ptly, hisattor ney, sho uld have p resente d addi tional evi dence to rebut the State's case."

O'Connor

did not sign the g uilty v erdicts. Besides, her c riticism of defense counsel for failing to put on certain evidence and for failing to as k c ertain questions in

cross-e xamina tion does not l ogically imply tha

t defenda

nt had the

burden of p roof. Otherwise, in crim inal tria ls, there would be no such thing as the defendant's case i n chief

or the defendant's cross-examina tion of the State's witnesses: the moment the defense broke its silence , it would be understoo d as reli eving the Stateof its burde n of proof. B ut

cross-e xamina tion and evide nce by th e defens e can se rve the func tion of refuti ng or weakening the State' s evidence, which oth erwise, in the mi nd of the j ury, migh t have amounted to proof bey

ond a re asonable

doubt. Reb uttal does n ot shift the burden of

proof; it aims to

prevent th e State fro m carry ing its burden of pro of. 4. Structural Defect Defendant charact erizes the violati on of Rule 4 31(b) as a structural defect tha t- 20 -

" 'd ef[ies] an alysis by "harmless-error" standa rds.' " Sullivan v. Louisiana , 508 U.S. 2 75, 281, 124 L. E d. 2d 182, 190, 113 S . Ct. 2078, 2082 (1993), q uoting Arizona

v. Fulmina nte , 499 U.S. 27 9, 309, 113 L. Ed. 2 d 302, 331, 111 S. Ct. 1246, 1265 (1991). Only in rare cases has the Supre me Court he ld an error to b e a structural defect so as to require automatic

reve rsal

. Washington v. Recuenco , 548 U.S. 2 12, 218, 165 L . Ed. 2d 466, 474 , 126 S. Ct. 2546, 2551 (2006). He re are th e types o f error the Supreme C ourt has he

ld to be structura

l: (1) complete denial of counsel, (2) a biased trial judge, ( 3) racial discrimination in the selectio n of a grand

jury, (4) d enial of s elf-repr esentati on at trial, (5 ) denial of a public

trial, and (6) a defective reasonable-doubt instruction. Recuenco , 548 U.S. at 218 n.2, 165 L. Ed. 2d at 474 n.2, 126 S. Ct. at 2551 n.2. The error in voir dire of which defendant complains is not on the list and does not even remotel y resemble any o f the items on the lis t. Therefore, we rejec

t the cha racteri zation

of the error as structural. See Glasper , 234 Ill. 2 d at 199, 917 N.E.2d at 417. B. Sufficiency of the Evidence That Spitting on Briggs Was Provoking or Insulting

1. Standard of Review Wh en a defendant claims that the evidence presented at trial is insufficient to sustain h is convi ction, we look at all

the evidence in

a light mo st favorable to the Sta te and ask if any rational trier of fact could find the elements of the charged offense to be proved beyond a reasonable doubt. Jackson v

. Virginia , 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Minniweather , 301 Ill. App. 3d 574, 577, 70 3 N.E.2d 912, 913 (1998). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasona ble inferen ces from b asic fa cts to ultimate facts." Jackson , 443 U.S. at 319, 61 L. Ed.- 21 -

2d at 573, 99 S. Ct. at 2789. We "impinge[] upon 'jury' discretion only to the extent necessary

to guarantee the fundamental pr ote ction of due process of law." Jackson , 443 U.S. at 319, 61 L. Ed. 2d at 574 , 99 S. Ct. a t 2789.

2. Physical Contact of an Insulting or Provoking Nature To prove defendant guilty of the aggravated battery of Briggs, the State had to prove, beyond a reasonable doubt, that by spitting blood and saliva o nto Briggs's torso and arm, defendant made physic al contact of an insulting or provoking nature. S ee 72 0 ILCS 5/12-3(a ) (We st 2006). Defendant argues there is no evidence that Briggs was insulted or provoked by defendant's act of spitting on him. Briggs never testified he was insulted or provoked. He never testified he took off his shirt right away or th at the blood and saliva got on his skin. We have said: " [ W] e can envision contexts in which a defenda nt's spitting m

ight not co nstitute

insulting or provokin g behavi or***." People v. Peck , 260 Ill. Ap p. 3d 812, 814, 633 N. E.2d 222, 224 (1994).

We also can

envisio n contex

ts in wh ich s pitting on someone would be insulting orprovoking. For hundr eds of ye ars, the common la

w has reg arded delibera te spittin g on someone as a battery. Peck , 260 Ill. App. 3d at 814, 633 N.E.2d at 223. Th e victim does not h ave to testi fy he or sh e was pro

voked; the

trier of fact can make that inference from the victim's reaction at the time. People v. Dunker , 217 Ill. A pp. 3d 4 10, 415, 577 N.E.2d 4 99, 502 (1991). When Briggs testified it was "for the purpose of officer safety" that he pushed defendant's head down onto the trunk of the squad car, the jury c oul d

reasona bly understand him as meaning "s afety from being spat on." In fact, Briggs testified he "immediately reacted by forcing [defendant] down over the trunk of the car to prevent [himself] fr om being sp[a]t on again." The jury also could infer that the police put a "spit- 22 -

hood" on defen dant bec ause con tact with his saliva and blood was repulsive and da ngerous to them and, therefore, insulting and provoking. III. CONCLUSION For the foregoing reasons, we affirm the trial court's judgment and deny defenda nt's petiti on for rehe aring. We award th e State $50 in costs agains t defenda

nt. Affirmed. MYERSCOUGH, P.J., and TURNER, J., concur.