Opinion filed September 1, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-13-0581 v. ) Circuit No. 13-CF-32 ) JOSHUA E. MESSENGER, ) ) Honorable John L. Hauptman, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice O'Brien concurred with the judgment and opinion. Justice Carter specially concurred, with opinion.

OPINION

¶1 A Whiteside County jury convicted defendant, Joshua Messenger, of aggravated battery

(720 ILCS 5/12-3.05(c) (West 2012)). The trial court later sentenced him to 10 years in prison.

Defendant does not dispute that the State’s evidence was sufficient to prove beyond a reasonable

doubt that he committed a battery. The sole overarching issue before us is whether defendant

was properly convicted of aggravated battery on the theory that the area inside the Whiteside

County jail—where defendant committed the battery at issue—was “public property” within the

meaning of section 12-3.05(c) of the Criminal Code of 2012.

¶2 Defendant appeals, arguing that: (1) the State failed to prove him guilty of aggravated

battery; (2) the trial court erred by taking judicial notice that a cell block in a county jail is public

property; and (3) the trial court erred when it instructed the jury. We affirm the trial court’s

ruling.

¶3 BACKGROUND

¶4 In January 2013, the State charged defendant with aggravated battery. The State alleged

that defendant’s battery of another inmate, while they were both incarcerated at the Whiteside

County jail, constituted aggravated battery because the jail is “public property” as contemplated

by section 12-3.05(c) of the Criminal Code.

At trial, defendant argued: (1) the victim

consented to the contact and therefore the battery was not insulting or provoking; and (2) the jail

is inaccessible to the public and thus, not “public property” under the aggravated battery statute.

¶5 Before trial, the State filed a motion, requesting the trial court take judicial notice that the

Whiteside County jail is public property. During trial, but outside the presence of the jury, the

State presented evidence that Whiteside County owns the entire jail complex. Defendant

objected, stating that judicial notice of this fact directed the jury to a “factual finding.” The court

disagreed with defendant’s position and granted the State’s motion. In so doing, the trial court

noted, “the plain and ordinary meaning of public property is property owned by the

government.” At trial, the court informed the jury that it “can take judicial notice of certain facts

that are, cannot be in legitimate dispute. I have taken judicial notice of the following fact, that

the Whiteside County Jail is public property.”

¶6 Following the presentation of evidence, which included video footage of the defendant

battering the victim inside a jail, a jury instructions conference was held. The State proposed a

jury instruction stating:

2 “The entire county jail is public property. The definition of public

property does not require that the property be an area open or

accessible to the public.”

Defendant renewed his objection that the jail was not public property for purposes of the

aggravated battery statute. The trial court disagreed, allowing the instruction and subsequently

informing the jury that judicially-noticed facts are not necessarily conclusive. Following closing

arguments, the jury convicted defendant of aggravated battery.

The trial court later

sentenced him to 10 years in prison.

¶7 This appeal followed.

¶8 ANALYSIS

¶9 I. Defendant’s Failure of Proof Claim

¶ 10 Defendant argues the trial court failed to prove him guilty of aggravated battery.

Specifically, defendant asserts that a cellblock in a county jail, which is generally inaccessible to

the public, is not “public property” under the statute. Defendant contends the trial court relied on

an outlier case (People v. Hill) when deciding to take judicial notice that the Whiteside County

jail is public property. People v. Hill,

(2011). In support of this

argument, defendant further asserts that being open and accessible to the public is the pivotal

factor in defining public property. Thus, concluding that any other criteria used to define public

property is based on a rationale inherently at odds with the Illinois courts’ long-held belief that

the purpose of the aggravated battery statute is to protect the community.

¶ 11 A. The Standard of Review

¶ 12 When reviewing a question of statutory interpretation, we apply a de novo standard of

review. In re Jerome S.,

.

3 ¶ 13 B. Public Property under the Aggravated Battery Statute

¶ 14 Under Illinois’s aggravated battery statute, the offense of battery can be aggravated based

on the location of the incident:

“A person commits aggravated battery when, in committing a

battery, other than by the discharge of a firearm, he or she is or the

person battered is on or about a public way, public property, a

public place of accommodation or amusement, a sports venue, or a

domestic violence shelter.” 720 ILCS 5/12-3.05(c) (West 2012).

The term “public property” and the others that appear with it are not defined by the statute.

¶ 15 The primary goal of statutory interpretation is to determine and effectuate the intent of

the legislature. People v. Amigon,

(2010). “The most reliable means of

accomplishing that goal is to apply the plain and ordinary meaning of the statutory language.”

. “Where the language is plain and unambiguous we must apply the statute without

resort to further aids of statutory construction.” People v. Collins,

(2005).

¶ 16 The defendant in this case battered a fellow inmate while they were in a common area for

inmates. At the prosecution’s request, the trial court deemed the county jail “public property”

via judicial notice. Defense counsel objected, arguing that areas must be accessible to the public

in order to be deemed public property. The trial court agreed with the State and took judicial

notice.

¶ 17 We find that under section 12-3.05(c) of the Criminal Code, the place where a battery

occurred can be a “public place of accommodation” or “public property.” The categories listed

in the statute are not necessarily mutually exclusive. “The word ‘or’ is a disjunctive

conjunction.” Central Mortgage Co. v. Kamarauli,

. Use of the

4 word “or” in the statutory language indicates a list of alternatives, each of which requires

separate treatment. In re E.B.,

(2008).

¶ 18 Defendant relies on People v. Kamp,

(1985), and People v. Ward,

(1981), in arguing otherwise. These cases do not persuade us. Initially, we note

that Kamp is distinguishable from the case at bar on its face. The defendant’s argument in Kamp

is that the State failed to prove him guilty of aggravated battery when it only proved the incident

occurred in an area accessible to the public, a park. Kamp,

. The

defendant in this case is arguing the reverse: the State failed to prove him guilty of aggravated

battery when it only proved the incident occurred in an area owned by the government, a jail.

¶ 19 The Kamp court found public accessibility sufficient to support a charge of felony murder

where the underlying felony—an aggravated battery—occurred in a public park.

The Kamp

court’s finding that a park is public property without evidence at trial of government ownership

does not exclude courts from finding that an area is public property based solely on proof that it

is government owned. The State in Kamp established at trial that the park where the defendant

battered the victim was accessible to the public, proving the defendant guilty of aggravated

battery. The trial and appellate courts did not find it necessary for the State to further prove the

park was government owned in order to sustain the defendant’s conviction. Kamp does not

address the issue of whether the State can prove property is public in nature by establishing that

it is government owned.

¶ 20 Defense counsel in this case claims that government ownership is irrelevant in

determining whether property is “public” under the aggravated battery statute. This is based

upon a misreading of applicable case law. In support of his argument, defendant focuses on the

5 Ward court’s use of the term irrelevant. Ward,

. The Kamp court

further highlighted the Ward court’s use of the term:

“Whether the property was actually publicly owned and, therefore,

public property rather than a privately owned public place of

accommodation is irrelevant; what is significant is that the alleged

offense occurred in an area accessible to the public.” (Emphasis

added.) (Internal quotation marks omitted.) Kamp,

(quoting Ward,

).

¶ 21 The Ward court defined “public property” as government owned and then went on to

declare that ownership was an extraneous matter to their case. This commentary was not a

universal declaration. The State in Ward had initially argued the battery, which occurred in a

hotel parking lot, had occurred “ ‘about public property.’ ” Ward,

. The

trial court later declared the battery had actually occurred “ ‘about a public place of

accommodation’ ” and the indictment was subsequently amended.

. To the extent

the Kamp and Ward courts characterize ownership as irrelevant, these discussions were in the

context that public property, for purposes of the statute, need not necessarily be publicly owned.

¶ 22 Public property need not necessarily be accessible to the general public in order to be

defined as such. “Nothing indicates the General Assembly meant for the plain and ordinary

meaning of ‘public property’ to be anything other than government-owned property. Moreover,

the county jail is property used for the public purpose of housing inmates.” Hill,

. Likewise, one temporarily detained in a county jail is still a citizen and member of the

community. We cannot believe that the General Assembly meant to discourage attacks on

people in the courthouse, but not in the jail.

6 ¶ 23 Here, as in Hill, the county jail where the incident occurred was owned by the

government and therefore considered public property. The State presented evidence that

defendant battered someone in a jail owned by a government entity. Therefore, as a matter of

statutory interpretation, the battery clearly falls within the aggravated battery statute.

¶ 24 II. Judicial Notice of an Element of the Offense

¶ 25 Next, defendant argues the court erroneously took judicial notice of an essential element

of aggravated battery. Specifically, defendant contends that the State was unjustly relieved of its

burden of proving he battered the victim on public property when the trial court took judicial

notice that the Whiteside County jail is public property. Again, we disagree.

¶ 26 A. The Standard of Review

¶ 27 As an evidentiary matter, judicial notice is reviewed for abuse of discretion. In re A.B.,

(1999); In re J.G.,

, 627 (1998). “We review the

trial court’s ruling on an evidentiary matter, including judicial notice, by applying an abuse of

discretion standard.” In re S.M.,

, ¶ 13.

¶ 28 B. Judicial Notice

¶ 29 Under Rule 201 of the Illinois Rules of Evidence, a trial court must take judicial notice of

an adjudicative fact when a party requests it to do so and provides the necessary supporting

information. Ill. R. Evid. 201(d) (eff. Jan. 1, 2011). The extension of the judicial notice doctrine

to include “facts which, while not generally known, are readily verifiable from sources of

indisputable accuracy is an important aid in the efficient disposition of litigation, and its use,

where appropriate, is to be commended.” People v. Davis,

(1976).

Furthermore, “[a] court may take judicial notice of a fact even if it constitutes an element of the

offense.” Hill,

(citing People v. White,

(2000)).

7 ¶ 30 The due process clause of the fifth amendment and the notice and jury trial guarantees of

the sixth amendment require “any fact (other than prior conviction) that increases the maximum

penalty for a crime [to] be charged in an indictment, submitted to a jury, and proven beyond a

reasonable doubt.” Jones v. United States,

(1999). By way of the

fourteenth amendment, the same is true for cases involving state statutes. Apprendi v. New

Jersey,

(2000). In criminal cases, judicially-noticed facts are in the province

of the jury, preserving a criminal defendant’s right to a jury trial. U.S. Const., amend. VI; Ill.

Const. 1970, art. I, § § 8, 13; People v. Love,

, ¶ 26. Taking judicial

notice of an element of an offense does not contradict Apprendi and its progeny. Compliance

with Rule 201(g) (Ill. R. Evid. 201(g) (eff. Jan. 1, 2011)) ensures that judicial notice in criminal

cases is merely another form of proof for the jury to accept or reject. United States v. Chapel,

(9th Cir. 1994).

¶ 31 The trial court in this case was asked to take judicial notice of a fact and provided with

the necessary supporting information. The record is clear on the following facts. Outside the

presence of the jury, Whiteside County jail correctional officer Corporal John Willhite testified

that Whiteside County owns the entire jail complex, including the area where defendant

committed the battery. Defense counsel further solicited from Corporal Willhite that the area

where defendant committed the battery was not open or accessible to the public. The trial court

informed the parties that it would take judicial notice that the Whiteside County jail is public

property. Defendant objected on the grounds that government ownership does not equate to

public property. The trial court later informed the jury that it had taken judicial notice that the

Whiteside County jail is public property and that judicially-noticed facts are not conclusive facts.

In other words, the jury was free to disregard the judicially-noticed fact.

8 ¶ 32 On appeal, defendant argues the status of a county jail as public property under the

aggravated battery statute is subject to legitimate dispute. Defendant alleges there is a split

among the appellate courts as to the definition of public property in this context. As previously

discussed, we disagree. This court has found no decision that characterizes a county jail as

anything other than public property. We see no reason to rule that a county jail is not public

property under the aggravated battery statute or that it is, per se, an issue subject to reasonable

dispute.

¶ 33 We note that defendant also implies on appeal that taking judicial notice of an element of

an offense is erroneous. The Illinois courts, however, have regularly sanctioned the use of

judicial notice to establish an element of the offense. Davis,

; People v. Scott,

(1996); White,

; Hill,

.

We reiterate the Davis court’s expansion of judicial notice for this purpose, as discussed in

White:

“The quoted principle in Davis that ‘the extension of the doctrine

of judicial notice to include facts *** readily verifiable from

sources of indisputable accuracy is an important aid in the efficient

disposition of litigation’ [citation] applies with equal force

regardless of the standard of proof required. Neither the Davis nor

Scott court conditioned their sanction of the use of judicial notice

upon the level of proof required.” White,

.

¶ 34 III. Jury Instruction

¶ 35 Last, defendant argues the trial court’s jury instruction that the Whiteside County jail is

public property was improper. Defendant asserts the trial court’s reliance on Hill renders the

9 instruction an inaccurate statement of the law. Having disposed of this issue previously, we will

not address it further.

¶ 36 Defendant also points out, however, that the instruction failed to inform the jury this was

a judicially-noticed fact, which it was not required to accept as conclusive. Defendant argues

this created an unconstitutional mandatory conclusive presumption. Without citing Apprendi,

defendant argues the instruction did not allow the jury to decide the battery occurred on public

property, denying the defendant his due process rights. Apprendi v. New Jersey,

(2000). In response, the State counters that the trial court remedied any problem with the

constitutionality of the jury instruction by orally admonishing the jury that it need not accept

judicially-noticed facts as conclusive. We find the instruction erroneous, but an error that was

ultimately harmless.

¶ 37 A. The Standard of Review

¶ 38 “Generally, an issue concerning the propriety of a jury instruction is reviewed under an

abuse of discretion standard; however, review is de novo when the issue is whether the

applicable law was correctly conveyed in the jury instruction.” People v. Franklin,

(citing People v. Turman,

).

¶ 39 B. The Jury Instruction

¶ 40 During a jury instructions conference in this case, the State proposed a non-Illinois

Pattern Jury Instruction which was later provided to the jury. The instruction stated as follows:

“The entire county jail is public property. The definition of public

property does not require that the property be an area open or

accessible to the public.”

The court gave the instruction over defendant’s objection.

10 ¶ 41 The trial court converted a judicially-noticed fact into an instruction and submitted it to

the jury without including the Illinois Rules of Evidence Rule 201(g) caveat language; ceasing to

remind the jury that they need not accept that fact as conclusive. The jury instruction removed

an element of the offense from the hands of the jury. This was a clear violation of Apprendi.

And under Illinois law, all mandatory presumptions are per se unconstitutional. People v.

Pomykala,

(2003). The erroneous instruction in this case, however, is not

akin to an unconstitutional directed verdict.

¶ 42 Apprendi clearly states that, except for the fact of a prior conviction, “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey,

(2000); People v. Swift,

(2002). The Supreme Court applies harmless-error

analysis to cases involving improper instructions on a single element of an offense. See, e.g.,

Carella v. California,

(1989) (per curiam) (applied to a mandatory conclusive

presumption); Pope v. Illinois,

(1987) (applied to a misstated element of

the offense). Illinois courts apply harmless-error review when a defendant has timely objected to

an Apprendi error and plain error when the issue was forfeited. See People v. Thurow,

(2003); People v. Crespo,

(2001); People v. Kaczmarek,

(2003); People v. Nitz,

(2006). Accordingly, we apply harmless

error in this case since the defendant objected to the instruction at trial.

¶ 43 Thurow and its progeny have established that an appellate court reviewing an Apprendi

error must examine the evidence and determine what a rational jury would have found. Thurow,

. In contrast to structural errors, “instructional errors are deemed harmless if

it is demonstrated that the result of the trial would not have been different had the jury been

11 properly instructed.” People v. Washington,

(citing Pomykala,

).

¶ 44 In spite of the constitutional violation that stems from the jury instruction at issue in this

case, the defendant is not entitled to a retrial. The Illinois supreme court has ruled that an

Apprendi violation is not automatic grounds for reversal. Kaczmarek,

; Thurow,

; Nitz,

; People v. Rivera,

(2007). The

instruction at issue is contradictory, in so far as it conflicts with the trial court’s earlier oral

instruction to the jury that it need not necessarily conclude the jail was public property, but in the

next breath asserts in writing that a jail is public property. This, too, is problematic but not

necessarily grounds for reversal. United States v. Dobek,

(7th Cir. 2015).

When no reasonable jury would acquit the defendant, even without the use of a confusing

instruction, a retrial is a waste of judicial resources. Id.; see also United States v. Macias,

(7th Cir. 2015). Such is the case here.

¶ 45 The evidence was overwhelmingly against the defendant in this case. There is no

reasonable argument that the evidence was closely balanced. At trial, the jury watched video

footage of the defendant unexpectedly attacking the victim from behind and repeatedly battering

him. All the while, they were patently inside a jail. All witnesses at trial testified that the

incident took place at the Whiteside County jail.

¶ 46 To believe the erroneous instruction resulted in a structural error—and is therefore now

reversible—one would have to assume the jury convicted the defendant without concluding the

battery took place in a jail. The elements of aggravated battery are undisputable in this case. For

the reasons previously stated, no reasonable jury would find that the battery did not occur on

public property. Accordingly, no reasonable jury could acquit the defendant at a retrial, even if

12 the instruction at issue were omitted.

¶ 47 When a defendant cannot bring forth facts contesting the element in question, as is the

case here, answering the question of whether or not the jury verdict would have been the same

without the error does not fundamentally undermine the purpose of the jury trial guarantee.

Neder v. United States,

(1999). It is beyond a reasonable doubt that the defendant

was found guilty by a rational jury. Thus, the trial court’s conviction stands.

¶ 48 CONCLUSION

¶ 49 For the foregoing reasons, the judgment of the circuit court of Whiteside County is

affirmed.

¶ 50 Affirmed.

¶ 51 JUSTICE CARTER, specially concurring:

¶ 52 I concur with the above opinion with the addition of the following comments. The

criminal Illinois Pattern Jury Instructions provide a general instruction in regard to judicial

notice, which should be given when appropriate. As to the specific fact judicially noticed, the

Illinois Rules of Evidence allow discretion in the trial court as to the method of informing the

jury that a fact has been judicially noticed.

¶ 53 Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that wherever the

criminal Illinois Pattern Jury Instructions contains an applicable instruction and it is deemed

appropriate in a criminal case it "shall be used." Paragraph (9) of the Illinois Pattern Jury

Instructions Criminal, No. 1.01 (4th ed. Supp. 2015) (hereinafter, IPI Criminal 4th (Supp. 2015))

provides:

"The evidence which you should consider consists only of the

testimony of the witnesses [and (the exhibits) (and) (stipulations)

13 (and) (judicially noticed facts)] which the court has received. [You

may, but are not required to, accept as conclusive any fact

judicially noticed.]" IPI Criminal 4th No. 1.01 (Supp. 2015).

¶ 54 The committee note to IPI Criminal 4th No. 1.01 (Supp. 2015) indicates:

"The Committee has added 'stipulations' and 'judicially noticed

facts' in paragraph [9] as types of evidence a jury should consider

during the course of its deliberations. In Illinois Rule of Evidence

201(g), the Illinois Supreme Court stated, 'In a criminal case, the

court shall inform the jury that it may, but is not required to,

accept as conclusive any fact judicially noticed'. The second

sentence in Paragraph [9] has been added so that this Instruction

complies with Rule 201(g)." IPI Criminal 4th No. 1.01 Committee

Note (Supp. 2015).

¶ 55 Illinois Rule of Evidence 201(g) is entitled "Informing the Jury" and provides:

"In a civil action or proceeding, the court shall inform the jury to

accept as conclusive any fact judicially noticed. In a criminal case,

the court shall inform the jury that it may, but is not required to,

accept as conclusive any fact judicially noticed." Ill. R. Evid.

201(g) (eff. Jan. 1, 2011).

¶ 56 Illinois Rule of Evidence 201(g) is identical to Federal Rule of Evidence 201(g) before its

amendment effective December 1, 2011 (Fed. R. Evid. 201(g) (prior to amendments of

December 1, 2011)), "except for the modification of the title and the substitution of 'inform' for

'instruct' in both sentences, thus permitting more informal direction from the court to the jury."

14 Gino L. DiVito, The Illinois Rules of Evidence: A Color-Coded Guide, Author's Commentary on

Ill. R. Evid. 201(g), at 31 (January 12, 2015). Illinois Rule of Evidence 201(g) modified the

earlier version of Federal Rule of Evidence 201(g) to substitute the word "inform" for "instruct"

in both sentences and changed the title from "Instructing the Jury" to "Informing the Jury." Ill.

R. Evid. 201(g) (eff. Jan. 1, 2011). These variances allow the trial court discretion to either

formally instruct or give an informal direction regarding judicially noticed facts and the

mandated caveat—that the jury may, but is not required to, accept a judicially noticed fact as

conclusive. Graham's Handbook of Illinois Evidence indicates that, if a matter would fall within

the province of the jury, the court must ensure that the jury is aware that the fact has been

judicially noticed, which may be accomplished: (1) as a direct result of the jury hearing counsel's

request for judicial notice and the court's concurrence; (2) the judge advising the jury specifically

at the time that the particular fact has been judicially noticed; or (3) by the court including an

instruction to the jury that a particular fact has been judicially noticed at the time of formal jury

instructions. Michael H. Graham, Graham's Handbook of Illinois Evidence § 201.4, at 85 (10th

ed. 2010).

¶ 57 Thus, a trial court has discretion to include the judicially noticed fact in the jury

instructions or inform the jury of a judicially noticed fact with an informal direction, with the

appropriate method depending on the circumstances. For example, where a judicially noticed

fact pertains to an element of a charged offense in a criminal case, then the State might request

that the judicially noticed fact be included in a formal jury instruction. On the other hand, all

parties may be satisfied with an informal direction to the jury in regard to a judicially noticed

fact in other circumstances.

15