Opinion filed September 30, 2013

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2013

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-12-0178 v. ) Circuit No. 10-CF-235 ) DARNELL M. FONDER, ) Honorable ) Kathy Bradshaw-Elliott, Defendant-Appellant. ) Judge, Presiding.

JUSTICE HOLDRIDGE delivered the judgment of the court with opinion. Presiding Justice Wright and Justice O'Brien concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, the defendant, Darnell M. Fonder, was convicted of resisting a peace

officer (720 ILCS 5/31-1(a-7) (West 2010)) and criminal trespass to real property (720 ILCS

5/21-3(a)(3) (West 2010)). The trial court sentenced the defendant to three years of

imprisonment. On appeal, the defendant argues that the trial court erred when it did not instruct

the jury that it must find that the defendant's conduct was the proximate cause of an injury to a

peace officer to sustain a felony charge of resisting arrest. We reverse and remand the cause.

¶2 FACTS ¶3 The defendant was charged by indictment with aggravated battery (720 ILCS 5/12-

4(b)(18) (West 2010)), resisting a peace officer (720 ILCS 5/31-1(a-7) (West 2010)), and

criminal trespass to real property (720 ILCS 5/21-3(a)(3) (West 2010)). On December 6, 2011,

the case proceeded to a jury trial.

¶4 At trial, Officer Michael Shreffler testified that at approximately 2:30 p.m. on May 7,

2010, he responded to a call at the residence of Crystal Davis. At the scene, Shreffler threatened

to arrest the defendant if he returned to Davis' residence.

¶5 At approximately 8:30 p.m. on the same date, Shreffler responded to another call at the

Davis residence. Davis told Shreffler that the defendant had returned. Shreffler observed the

defendant walk toward him from behind the building. As Shreffler approached the defendant,

Officer Joseph Martinez arrived at the scene. Shreffler noticed that Martinez was uninjured.

Thereafter, Shreffler approached the defendant. He announced that the defendant was under

arrest, instructed the defendant to place his hands behind his back, and attempted to grab the

defendant's arm. The defendant said "[I] ain't getting arrested for this bullshit" and pulled his

arm away. The defendant then fought with Shreffler and Martinez as they attempted to restrain

him. The officers gained control of the defendant only after Martinez dry-stunned him twice

with his taser.

¶6 Martinez testified that when he arrived at the scene, he saw Shreffler speaking with

Davis. Shreffler then went to the side of the building and spoke with the defendant. Martinez

first approached Davis and then went to Shreffler's location, where he saw Shreffler advise the

defendant that he was under arrest. The defendant tugged his right arm away as Shreffler

attempted to place him in handcuffs. Shreffler instructed the defendant not to resist. Martinez

2 attempted to grab the defendant's left arm, but the defendant swung his arm up, scratching

Martinez's nose and forehead. The defendant continued to fight with the officers until Martinez

dry-stunned the defendant twice. Shreffler transported the defendant from the scene, and

Martinez completed the paperwork for the offense and took Davis' statement.

¶7 During the struggle, Martinez received small abrasions to his nose and forehead.

Martinez identified a photograph that was taken after the incident that depicted the injuries, and

the photograph was admitted into evidence. However, the photograph did not display the full

extent of the injuries because Martinez had cleaned the "blood dripping on [his] face" in Davis'

bathroom. Martinez was uninjured before the altercation.

¶8 Davis testified that she had known the defendant for approximately five years. On the

evening of May 7, 2010, she spoke with Martinez for approximately two minutes and then he

went around the side of the building to look for the defendant. Davis followed Martinez around

the side of the building and saw Martinez and Shreffler ask the defendant for identification.

When the defendant said that he did not have identification, the officers instructed the defendant

to come with them and grabbed his arm. The defendant responded that it hurt, and the officers

threw the defendant on the ground, jumped on him, and sprayed him with mace. The defendant

told the officers to stop and proclaimed that he "didn't do nothing." Davis also asked the officers

to stop.

¶9 After the defendant was placed in the police car, Martinez went to Davis' apartment and

asked her to sign some paperwork. At that time, Davis did not notice any injuries to Martinez's

face, and Martinez did not use her bathroom.

¶ 10 On cross-examination, Davis stated that the defendant was the father of her daughter. On

3 the date of the incident, she and the defendant were separated, and she called the police after the

defendant came to her residence in the afternoon. The police responded in the evening of May 7,

2010, when they saw the defendant standing in front of the apartment building where Davis

lived. Davis denied calling the police a second time. At trial, Davis stated that she and the

defendant had reconciled their relationship.

¶ 11 At the jury instruction conference, the State tendered two jury instructions on resisting

arrest. Defense counsel did not object to the instructions or offer his own instructions, and the

case proceeded to closing arguments.

¶ 12 Prior to deliberations, the trial court instructed the jury on the resisting arrest charge using

Illinois Pattern Jury Instructions, Criminal, Nos. 22.13 and 22.14 (4th ed. 2000) (hereinafter, IPI

Criminal 4th Nos. 22.13 and 22.14).

¶ 13 During deliberations, the jury requested to see the photograph of Martinez's injuries.

However, before the photograph was sent to the jury, it reached a verdict. The jury found the

defendant not guilty of aggravated battery and guilty of resisting a peace officer and criminal

trespass to real property.

¶ 14 On January 3, 2012, the defendant filed a motion for acquittal. The defendant contended

that he should not have been convicted of felony-level resisting arrest. The defendant argued that

the jury instructions for resisting arrest did not contain the proposition that the defendant was the

proximate cause of an injury to a peace officer. As a result, the jury instruction only supported a

conviction for a misdemeanor conviction for resisting arrest. The trial court found that it was

foreseeable that an officer might be injured when the defendant resisted arrest and denied the

motion. Thereafter, the trial court sentenced the defendant to three years of imprisonment. The

4 defendant appeals.

¶ 15 ANALYSIS

¶ 16 On appeal, the defendant argues that the trial court erred when it failed to instruct the jury

on a necessary element of the charge for felony resisting arrest. According to the defendant, the

court should have instructed the jury, in addition to the three propositions listed in IPI Criminal

4th No. 22.14, that the State must prove beyond a reasonable doubt that the defendant's violation

was the proximate cause of an injury to Martinez. See 720 ILCS 5/31-1(a-7) (West 2010). The

defendant admits that he did not object to the tendered jury instructions, but argues that the

waiver rule should not apply because the court's failure to instruct the jury on an element of the

offense is a grave and fundamental error. See Ill. S. Ct. R. 451(c) (eff. July 1, 2006). The State

concedes that the trial court erred, but argues that reversal is not warranted because the evidence

was not closely balanced and it was obvious from the evidence that the defendant proximately

caused injury to Martinez.

¶ 17 Generally, "[n]o party may raise on appeal the failure to give an instruction unless the

party shall have tendered it." Ill. S. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994). However, Illinois

Supreme Court Rule 451(c) (eff. July 1, 2006) provides that substantial defects in jury

instructions are not waived by a defendant's failure to make timely objections if the interests of

justice require. "The purpose of Rule 451(c) is to permit correction of grave errors and errors in

cases so factually close that fundamental fairness requires that the jury be properly instructed."

People v. Sargent,

(2010). Rule 451(c) is coextensive with the plain error

rule. See Ill. S. Ct. R. 615(a); People v. McNeal,

(2010). Before conducting

the plain error analysis, we must determine whether there was error. See People v. Wilson, 404

(2010).

¶ 18 A. Error

¶ 19 "The purpose of jury instructions is to provide the jury with the correct legal principles

applicable to the evidence, so that the jury may reach a correct conclusion according to the law

and the evidence." People v. Bannister,

(2008). Generally, the decision to give

a certain instruction rests in the sound discretion of the trial court. People v. Lovejoy,

(2009). However, "when the issue is whether the applicable law was correctly conveyed by

the instructions to the jury, the appropriate standard of review on appeal is de novo." People v.

Max,

.

¶ 20 In the instant case, the defendant was charged with felony resisting arrest under section

31-1(a-7) of the Criminal Code of 1961 (Code). 720 ILCS 5/31-1(a-7) (West 2010). To secure a

conviction under section 31-1(a-7) of the Code, the State was required to prove beyond a

reasonable doubt that the defendant knowingly resisted or obstructed a peace officer in the

performance of an authorized act within his capacity and the defendant's "violation was the

proximate cause of an injury to a peace officer." 720 ILCS 5/31-1(a), (a-7) (West 2010).

¶ 21 In a jury trial, the court must instruct the jurors, using the IPI Criminal Instructions, when

applicable. Ill. S. Ct. R. 451(a) (eff. July 1, 2006). Two IPI Criminal instructions are pertinent to

the offense of resisting a peace officer. IPI Criminal 4th No. 22.13 states:

"A person commits the offense of resisting or obstructing a [ (peace officer) *** ]

when he knowingly resists or obstructs the performance of any authorized act within the

official capacity of one known to him to be a [ (peace officer) *** ]." IPI Criminal 4th

No. 22.13.

6 Analogously, IPI Criminal 4th No. 22.14 lists the elements for a misdemeanor charge of resisting

a peace officer as follows:

"To sustain the charge of resisting or obstructing a [ (peace officer) *** ], the

State must prove the following propositions:

First Proposition: That _____ was a [ (peace officer) *** ]; and

Second Proposition: That the defendant knew _____ was a [ (peace officer) *** ];

and

Third Proposition: That the defendant knowingly resisted or obstructed the

performance by ____ of an authorized act within his official capacity.

If you find from your consideration of all the evidence that each one of these

propositions has been proved beyond a reasonable doubt, you should find the defendant

guilty.

If you find from your consideration of all the evidence that any one of these

propositions has not been proved beyond a reasonable doubt, you should find the

defendant not guilty." IPI Criminal 4th No. 22.14.

The committee notes to these instructions are silent on the changes necessary for a felony

charge.1

¶ 22 In the present case, the trial court instructed the jury on the resisting arrest charge using

1 We note that Illinois Pattern Jury Instructions, Criminal, No. 4.24 (4th ed. Supp. 2011)

(hereinafter, IPI Criminal 4th No. 4.24 (Supp. 2011)) defines "proximate cause." The committee

note to IPI Criminal 4th No. 4.24 cites to the "proximate cause" language in section 31-1(a-7) of

the Code, but does not provide a cross-reference to IPI Criminal 4th Nos. 22.13 or 22.14.

7 the unmodified versions of IPI Criminal 4th Nos. 22.13 and 22.14. Consequently, the trial court

failed to instruct the jury on an essential element of the offense: that the defendant's violation was

the proximate cause of injury to a peace officer. The court's omission of the proximate cause

element was error.

¶ 23 B. Plain Error

¶ 24 Having found error, we must next determine whether it is reversible error, i.e., whether

either prong of the plain error test has been satisfied such that we may overlook the defendant's

procedural default. We may overlook the defendant's procedural default if: (1) the evidence is so

closely balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error; or (2) the error is so serious that it affected the fairness

of the defendant's trial and challenged the integrity of the judicial process, regardless of the

closeness of the evidence. People v. Piatkowski,

(2007). "The defendant bears

the burden of persuasion under both prongs of the plain-error analysis." People v. Wilmington,

.

¶ 25 In this case, the defendant has satisfied his burden of proving that the trial court's error

was reversible plain error under the second prong of the analysis. The second prong of the plain

error doctrine permits review and reversal of otherwise unpreserved errors that erode the integrity

of the judicial process and undermine the fairness of a defendant's trial. Sargent,

.

Fundamental fairness requires trial courts to see "to it that certain basic instructions, essential to a

fair determination of the case by the jury, are given." People v. Ogunsola,

(1981). The failure to inform the jury of the elements of the crime charged is so grave and

fundamental that the waiver rule should not apply. See People v. Hari,

(2006);

8 Ogunsola,

; People v. Hale,

.

¶ 26 A conviction under section 31-1(a-7) of the Code required the jury to find, inter alia, that

the defendant's violation was the proximate cause of an injury to Martinez. 720 ILCS 5/31-1(a),

(a-7) (West 2010). The trial court failed to instruct the jury on that element. The element had to

be proved beyond a reasonable doubt because it elevated the sentencing range. People v.

Cervantes,

(2011). The defendant is entitled to a jury determination of

every element of the crime with which he is charged beyond a reasonable doubt. See Apprendi v.

New Jersey,

(2000). The trial court's omission removed from the jury's

consideration an element essential to the determination of the defendant's guilt or innocence. See

Ogunsola,

. Furthermore, the defendant's acquittal of the aggravated battery charge,

which required proof of bodily harm, suggests that the jury did not find that Martinez was

injured. See 720 ILCS 5/12-4(b)(18) (West 2010). As a result, we remand the cause for a new

trial before a properly instructed jury.

¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, the judgment of the circuit court of Kankakee County is

reversed, and the cause is remanded for further proceedings.

¶ 29 Reversed and remanded.

9