FIFTH DIVISION JUNE 17, 2016

No. 1-13-0484

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 08 CR 18483 ) KEVIN ROBINSON, ) Honorable ) Angela Munari Petrone, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court with opinion. ∗ Justices Gordon and Lampkin concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Kevin Robinson was convicted of aggravated criminal

sexual assault and aggravated kidnapping. He received a mandatory sentence of natural life for

the aggravated sexual assault conviction. On direct appeal, defendant raises two claims of error.

He argues that (1) there was insufficient evidence of “deceit or enticement” to sustain his

conviction for aggravated kidnapping, and (2) he was denied a fair trial because the aggravated

kidnapping jury instruction omitted an essential element and conflicted with the instruction on

the lesser-included offense of kidnapping.

∗ This case was recently reassigned to Justice Burke. 1-13-0484

¶2 I. BACKGROUND

¶3 On October 14, 2008, defendant was charged by indictment with two counts of

aggravated criminal sexual assault, two counts of aggravated kidnapping, and one count each of

criminal sexual assault, kidnapping, and unlawful restraint of the victim, B.H. The kidnapping

and aggravated kidnapping charges alleged that defendant knowingly, by deceit or enticement,

induced B.H. “to go from one place to another with intent secretly to confine her against her

will.” The aggravated kidnapping charge was predicated on criminal sexual assault, and the

aggravated criminal sexual assault was predicated on kidnapping.

¶4 At trial, B.H. testified that she was 25 years old at the time of the incident and lived with

her mother, R.H., in Chicago. She attended high school until the eleventh grade and took special

education classes. On September 5, 2008, she went to the mall with her mother. At some point,

she met a friend she had not seen in a while, Sanbonita West. West was with two people B.H. did

not know, one of whom was defendant. West introduced her to defendant. He took B.H.’s cell

phone and entered his number into it and asked for her number, which she gave to him because

he “seemed like a nice person, and I thought because he was with my friend, he had to be *** a

nice, sweet gentleman.” She thought he would be “somebody maybe just to talk to or just maybe

go out to the movies or something.”

¶5 B.H. testified that later that night around midnight, defendant called her and asked if she

would “like to go out to eat and to the movies.” She agreed because she was “tired of being in

the house looking at the four walls.” Her mother indicated that she wanted to meet defendant

first, so he met up with them at the bus stop at 93rd Street and Cottage Grove Avenue at

approximately 12:45 a.m. B.H. testified that defendant walked back with her and her mother to

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their house and they spent about 15 to 20 minutes talking. Her mother then gave B.H. permission

to go out with defendant.

¶6 B.H. testified that she and defendant returned to the bus stop and took the bus to the

Chicago Transit Authority (CTA) stop at 95th Street and State Street, and then they got on a Red

Line train. She testified that at that point, the “[o]nly thing I knew about was going out to eat and

to the movies.” However, while they were on the train, defendant told her that he and a friend of

his “were talking about buying some property and his friend wanted him to go check this

property out.” He did not indicate where the property was located. She testified that they exited

the train at 79th Street and State Street and then got on a bus on 79th Street, exiting two or three

blocks from Halsted Street. At the time, B.H. “didn’t really think too much of it because I

thought buying property—you know, that was a nice good idea.” It was approximately 2 a.m. at

that point. She testified that she was not sure if any movie theaters were still open at that time

“because I hadn’t been to the movies in a while, so I didn’t know the hours.”

¶7 B.H. testified that they walked approximately two blocks to the house, which was dark

and boarded up. They walked around to the back of the house and entered. There were no lights

on inside the house and no sign of anyone living there. She used the light from her cell phone to

look around. They walked around the first floor of the house. After a few minutes, B.H. left

defendant and went upstairs to the second floor to “see how it looked.” B.H. then went upstairs

to the attic. She testified that she decided on her own to go upstairs. B.H. testified that she

wanted to go inside the house “just to look at the property and see how it looks.” She wanted to

be there and “[j]ust to hang out” with defendant. She wanted a friend to go out with so she would

not have to be at home as much. She testified that she did not call her mother to tell her about

going to the house because her mother would not have approved.

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¶8 B.H. testified that when she was in the attic, she heard defendant coming up the stairs and

decided that she “wanted to play a little trick on him; so I hid in the closet to see if he can find

me.” She testified that defendant called her name and she stayed quiet, but defendant found her

in the closet. According to B.H., as she exited the closet, defendant “shoved [her] against the

wall and he started kissing all over [her] neck.” She told defendant “to stop. Don’t do that. That’s

not me. That’s not what I do.” As B.H. tried to push defendant away, he pushed her to the floor

and slapped her. B.H. screamed for help. B.H. testified that defendant told her “to quit hollering

and screaming or else he would hit me again.” She testified that she did not agree to have sex

with him by jumping out of the closet and she did not continue to be “playful” with him.

¶9 B.H. testified that defendant turned her over onto her stomach and pulled down her pants

and underwear, and then he pulled his own down. B.H. testified that defendant moved on top of

her and “started to rape me.” She testified that he placed his penis inside her vagina. He was not

wearing a condom. B.H. testified that this went on for approximately 10 to 15 minutes. B.H. was

scared and did not know what to do. B.H. testified that after he finished, he “turned me over and

he told me that I needed to wipe myself, and I told him I didn’t have anything. And that’s when

he told me, well, I would have to use my hand.” She used her hands to clean the substance that

was “like liquid” by her vagina. She testified that defendant stated, “that I better not say anything

to nobody because he know [sic] where I stay.”

¶ 10 B.H. testified that she put her clothes back on and “tried to just play it off because I was

still scared” and they walked down the stairs and exited the house. She did not attempt to run

away because she was scared and did not know if defendant had a weapon or “had somebody

hiding somewhere in the neighborhood.” They walked back to the bus stop and took the bus to

the Red Line “El” stop, and then took the train to 95th Street and State Street. She did not ask

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anyone for help because defendant knew where she lived and she “didn’t know if he would try to

come back to hurt me or someone in my family.”

¶ 11 B.H. testified that after they exited the train, defendant offered to escort her home on the

bus, but she told him “no, that’s okay. I will make it there by myself.” Once aboard the bus, B.H.

called her mother and told her to meet her at 93rd Street and Cottage Grove Avenue. When she

met her mother, she told her that defendant had raped her and her mother called 911

immediately. When the police arrived, B.H. told them about the rape. Not long after the police

arrived, defendant called B.H. She “played it off and told him, yes, I made it home and

everything was okay.” B.H. and her mother then went to Trinity Hospital, where a rape kit

examination was performed.

¶ 12 B.H. testified that defendant called her again in the early hours of the morning from the

same number and he left her a message in which he stated, “if I have told anybody or anything,

he knows where I stay at and he will come get me.” B.H. testified that she listened to the

message and let her mother hear it. The message disappeared at some point; she did not save it.

¶ 13 B.H. testified that she spoke with a female police officer on September 14, 2008, and the

same officer came to her home on September 15, 2008. The officer showed her a photographic

array of six young men. B.H. testified that she identified defendant’s photograph as the

individual who had raped her. She remembered the braids in his hair and recognized his face.

She also viewed a live lineup at the police station on September 16, 2008, and identified

defendant. She testified that she never agreed to have sex with defendant and she believed they

were “going out to eat and to the movies.”

¶ 14 R.H. testified that her daughter lived with her and had attended a special education high

school, but did not graduate. R.H. testified that they went to the mall together on September 5,

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2008, and they separated for a period of time. Later that night, B.H. told her that she received a

phone call and B.H. prepared to leave the house. R.H. did not want B.H. to go, but she let her go

because “she is grown.” She met with defendant outside her house for three to four minutes; she

did not go to the bus stop. R.H. believed B.H. and defendant were going “[t]o the movies and out

to eat.” R.H. testified that she attempted to call B.H.’s cell phone that night, “but it kept going to

voicemail.” R.H. next heard from B.H. at 3 or 4 a.m. when B.H. called her and told her to meet

her at 93rd Street and Cottage Grove Avenue. When R.H. arrived, B.H. told her that she had

been raped and R.H. called the police.

¶ 15 Chevette Denson testified that she was living with Sanbonita West in September 2008.

They went to the mall on September 5, 2008. While waiting at the bus stop, West noticed

defendant, who was a former classmate. They all took the bus to the mall. Denson and West ran

into B.H. at the mall, whom Denson had never met. Defendant came up to them at some point

and West introduced defendant to B.H. Denson observed an exchange of cell phone numbers.

¶ 16 Carla Thomas-Russell, an emergency room nurse at Trinity Hospital, treated B.H.

sometime after 4 a.m. on September 6, 2008. She testified that B.H. had a flat affect like

“someone who has some sort of developmental delays.” B.H. “reported that she had been raped”

and gave Thomas-Russell information about the assailant. Her report noted that B.H. “reported

that the sex act that was committed on her was a penis to her vagina.” B.H. did not indicate she

had any pain or injury and no injuries were found during the general and genital examinations.

The doctor observed whitish discharge in B.H.’s vagina. Thomas-Russell performed a criminal

sexual assault kit examination on B.H., which included taking a blood sample and vaginal and

anal swabs. Thomas-Russell sealed the kit and signed it and then placed it in a locked cabinet at

the nurse’s station. The kit was later turned over to the police.

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¶ 17 Meredith Misker, a forensic scientist for the Illinois State Police Crime Lab, analyzed

B.H.’s sexual assault kit. She tested the vaginal swabs for the presence of semen and saliva, but

neither was detected. The rectal swabs tested positive for the presence of semen and defendant’s

DNA was found on the rectal swabs. She also testified that “drainage was possible from one

orifice to another. They are very close in location.”

¶ 18 Chicago police detective Jeanne Radjenovich testified that she interviewed B.H., her

mother, Denson, and West on September 14 and 15, 2008. She used this information to assemble

a photographic lineup and showed it to B.H., who identified defendant. Radjenovich issued an

investigative alert for defendant. She also submitted the criminal sexual assault kit to the state

crime lab. Defendant was arrested on September 16, 2008. She had B.H. view a live lineup that

same day and B.H. again identified defendant as the person who sexually assaulted her.

¶ 19 The State presented propensity evidence. D.H. testified that on the evening of October

12, 2002, when she was 16 years old, she met defendant while on the Red Line and they spoke

during the whole trip and exchanged phone numbers. Defendant called her the next day, around

11 p.m. or 12 a.m., and asked her to come to an “El” station, where he was with a friend who

worked for the CTA. Initially, D.H. refused to meet with him. Defendant called her again and

she heard a group of girls laughing in the background. D.H. felt reassured; defendant informed

her “that they would be there.” D.H.’s mother escorted her to the “El” station at 12 or 1 a.m.

Defendant and D.H. were together in a sitting area near a bathroom within the station for a few

hours. At some point, defendant’s friend returned and defendant asked him to lock the door from

the outside because “he didn’t want any crack heads coming in” to use the bathroom. Defendant

pulled a condom out of his wallet and D.H. started to play with it. Defendant stated that she

“woke up his little friend” and he exposed his penis. D.H. told defendant “to put it up because we

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wasn’t going to do anything.” Later on, she asked to see defendant’s CD player, but he “play”

wrestled her to the floor and moved on top of her. D.H. told him, “I am trusting you to do the

right thing. Don’t do this.” Defendant pulled down her pants while D.H. kicked and screamed.

She testified that defendant then penetrated her vagina with his penis. After defendant finished,

his friend opened the door and asked what happened and defendant stated, “I did something bad

to my friend.” D.H. ran onto a train, but defendant followed her. D.H. solicited a woman for help

and the train was stopped. The police were called and D.H. identified defendant.

¶ 20 In closing, the State argued that defendant committed aggravated criminal sexual assault

premised on kidnapping in that, observing that B.H. was naive and mentally challenged,

defendant induced her by deceit or enticement by lying to her about going to dinner and movie

and then lying to her about “checking out some real estate. There was no real estate that he was

checking out. He had no authority to be there. It was never a movie. There was never a meal.

There certainly was no real estate deal in the works.” Further, the State argued that he intended

to secretly confine B.H. against her will in the abandoned house where no one would hear or see

her. In addition, the State asserted that defendant committed aggravated kidnapping in that he

also committed criminal sexual assault while committing the kidnapping. The defense argued in

closing that B.H. willingly went with defendant on the bus and train, willingly went inside the

abandoned house, and consented to the sexual intercourse, but she later regretted her behavior

and made up the rape allegations because she did not want to disappoint her mother. The jury

found defendant guilty of aggravated kidnapping and aggravated criminal sexual assault.

¶ 21 Defense counsel filed a posttrial motion for a new trial and an amended motion for a new

trial. Defendant also filed a pro se motion for a new trial, alleging ineffective assistance of

counsel. The circuit court denied all the motions.

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¶ 22 The circuit court sentenced defendant to statutorily mandated natural life imprisonment

for the aggravated criminal sexual assault conviction based upon his prior conviction for criminal

sexual assault of D.H. 720 ILCS 5/12-14(d)(2) (West 2008). The court sentenced defendant to a

concurrent term of 20 years’ imprisonment for the aggravated kidnapping conviction. This

appeal followed.

¶ 23 II. ANALYSIS

¶ 24 A. Sufficiency of the Evidence

¶ 25 In his first claim on appeal, defendant attacks the sufficiency of the evidence supporting

his aggravated kidnapping conviction.

¶ 26 “[T]he State carries the burden of proving beyond a reasonable doubt each element of an

offense.” People v. Siguenza-Brito,

(2009) (citing Jackson v. Virginia,

(1979)). When considering a challenge to the sufficiency of the evidence

supporting a conviction, the reviewing court must view the evidence in the light most favorable

to the prosecution to determine whether a rational trier of fact could have found that the essential

elements of the offense were proven beyond a reasonable doubt. People v. Collins,

(2005). This court will not retry the defendant or “substitute its judgment for that of the

trier of fact on issues involving the weight of the evidence or the credibility of witnesses.”

Siguenza-Brito,

. It is the jury’s responsibility to resolve conflicting

testimony, weigh the evidence, and determine what reasonable inferences to draw there from.

. “A criminal conviction will not be set aside unless the evidence is so improbable or

unsatisfactory as to create a reasonable doubt of the defendant’s guilt.”

.

¶ 27 As is relevant to the present case, the offense of kidnapping occurs when “a person

knowingly: *** By deceit or enticement induces another to go from one place to another with

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intent secretly to confine him against his will.” 720 ILCS 5/10-1(a)(3) (West 2008); Siguenza-

Brito,

. Kidnapping is elevated to aggravated kidnapping when the defendant

also commits another felony, such as aggravated criminal sexual assault, on the victim. People v.

Reeves,

(2008) (quoting 720 ILCS 5/10–2(a)(3) (West 2002)).

¶ 28 Defendant asserts the State failed to prove beyond a reasonable doubt that he used “deceit

or enticement” to move B.H. or that he had the intent to secretly confine her.

¶ 29 Viewing the evidence in the light most favorable to the State, we find there was sufficient

evidence for a rational jury to conclude that defendant used deceit and enticement to induce B.H.

to accompany him that night. As the State argues, multiple layers of deceit and enticement by

defendant were involved in this case. The evidence established that defendant asked B.H. to go

out for dinner and movie, and this was B.H.’s and her mother’s understanding when B.H. left

with defendant that night. Considering that it was questionable whether any movies would be

playing in the middle of the night and that defendant eventually took her to a secluded location

and sexually assaulted her, it was reasonable for the jury to infer that defendant never actually

intended to bring B.H. to “dinner and a movie” that night. Moreover, such a ruse was necessary

considering that, had defendant instead proposed that he and B.H. go inspect a vacant, boarded-

up house in the middle of the night, it is highly unlikely that B.H.’s mother would have allowed

B.H. to accompany defendant. Thus, the evidence established beyond a reasonable doubt that

defendant used the enticement and deceit of “dinner and a movie” to induce B.H. to go out with

him that night.

¶ 30 Likewise, once they were on the train and away from B.H.’s mother, defendant again

used deceit and enticement to induce B.H. to leave the train and go to the vacant house under the

guise of inspecting some real estate he hoped to purchase. Defendant maintains that there was no

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deceit because they did, in fact, inspect the house, and the State failed to prove that he was not

sincere about his interest in purchasing the property. However, the jury was not required to

accept defendant’s explanation. People v. Williams,

(1998) (victims’

testimony and circumstantial evidence supported inference that the defendant intended to

secretly confine the victims in his car when he offered candy and indicated that he would take

them wherever they wanted to go if they got in his car; the trier of fact was free to disregard the

defendant’s testimony that he was merely asking for directions). The trier of fact is “entitled to

disbelieve defendant’s explanation of the incriminating circumstances.” (Internal quotation

marks omitted). Siguenza-Brito,

. Under the evidence presented, a reasonable

jury could find that defendant used deceit and enticement to lure B.H. to a secluded location and

that defendant was not actually attempting to inspect the house considering that it was the middle

of the night, the house had no electricity or lights, was boarded up, and there was no indication

that defendant possessed a key to the house.

¶ 31 Defendant contends that he did not promise to take B.H. to a movie but then,

unexpectedly, take her to an abandoned house instead. However, the kidnapping statute does not

require that the place defendant moved B.H. to with his “dinner and a movie” promise must be

the vacant house. All the statute requires is that a defendant induce the victim “to go from one

place to another.” 720 ILCS 5/10-1(a)(3) (West 2008). It was sufficient that defendant induced

the victim to move from her home to the train, or from the train to the abandoned house. The fact

that B.H. agreed to the change of plans and willingly entered the vacant house does not vitiate

the evidence and reasonable inferences drawn there from [the jury?] that defendant used deceit or

enticement to induce B.H. to “go from one place to another with intent secretly to confine [her]

against [her] will.” 720 ILCS 5/10-1(a)(3) (West 2008); Siguenza-Brito,

.

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Indeed, the fact that a victim willingly accompanies a defendant is the essence of kidnapping

based on the “deceit and enticement” prong of the statute. See, e.g., People v. Reeves,

(2008) (sufficient evidence of aggravated kidnapping where the

victim accepted the defendant’s offer to drive her home from school, and then he told her that

they would go to the mall instead, and she agreed, but the defendant drove her to his girlfriend’s

house and then to his own house and parked inside the garage, where he and another individual

sexually assaulted and murdered the victim).

¶ 32 We further observe that, despite his claim that B.H. willingly accompanied him to the

house, defendant failed to specifically inform B.H. where the property was located or that the

property was, in reality, an abandoned, boarded-up house. Given the testimony regarding B.H.’s

mental abilities, it was reasonable for the jury to infer that although she agreed to the change of

plans and willingly entered the house, she was naive to the danger posed by entering a vacant

building in the middle of the night with a strange man, she was unaware of his intentions once

inside the house, and she was enticed by the fact that he showed an interest in her.

¶ 33 In addition, viewing the evidence in the light most favorable to the State, it was

reasonable for the jury to infer that defendant had the “intent to secretly confine” B.H. against

her will. “Secret confinement is demonstrated by either the secrecy of the confinement or the

place of the confinement. [Citation.] ‘Secret’ has been defined as ‘[c]oncealed; hidden; not made

public; particularly, in law, kept from the knowledge or notice of persons liable to be affected by

the act, transaction, deed, or other thing spoken of.’ ” (Emphasis in original.) People v. George,

(2002) (quoting Black’s Law Dictionary 1352 (6th ed. 1990)). The

evidence supported the inference that defendant ultimately intended to induce B.H. to a secluded,

unfamiliar location where no one would see or hear her when he sexually assaulted her.

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¶ 34 Defendant also contends that his conviction must be reversed because he did not possess

a “clearly malicious intent to deceive.” This is not an element of aggravated kidnapping. 720

ILCS 5/10-1(a)(3) (West 2008); Siguenza-Brito,

. We should reject defendant’s

attempt to distinguish this case from other kidnapping cases on that basis, as they also did not

require proof of a “malicious intent to deceive.” See, e.g., People v. Brown,

(1991) (affirming aggravated kidnapping conviction where the defendant lured the victim

to a hotel by promising to help her find a clerical job and informing her that they had to go to his

office to compose the resume); People v. Eyler,

(1989) (where the

defendant lured the victim, a male prostitute, to his apartment with promise of payment for

sexual services, but bound and murdered the victim once there, the court affirmed his aggravated

kidnapping conviction, finding that confinement was established by evidence that the victim’s

wrists were bound).

¶ 35 Accordingly, viewed in the light most favorable to the prosecution, the evidence

established beyond a reasonable doubt that defendant committed aggravated kidnapping. Collins,

.

¶ 36 B. Jury Instructions

¶ 37 As an alternative to his sufficiency claim, defendant contends that the jury was given

erroneous and contradictory instructions on aggravated kidnapping and kidnapping where the

aggravated kidnapping instruction was predicated on a confinement theory, but the charges in the

indictment and the kidnapping instruction were predicated on an inducement theory.

¶ 38 Defendant acknowledges that he failed to properly preserve this issue for appellate

review. People v. Enoch,

(1988) (to preserve an issue for review, defendant

must object at trial and include the issue in a posttrial motion). “Illinois Supreme Court Rule

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451(c) (eff. Apr. 8, 2013) provides that ‘substantial defects’ in criminal jury instructions ‘are not

waived by failure to make timely objections thereto if the interests of justice require.’ ” People v.

Downs,

. This limited exception permits correction of “grave errors” and

“errors in cases so factually close that fundamental fairness requires that the jury be properly

instructed.” (Internal quotation marks omitted.)

(quoting People v. Herron,

(2005)). Rule 451(c) is construed identically with the plain error doctrine.

This court may

review forfeited error under the plain error doctrine if:

“ ‘(1) a clear or obvious error occurred and 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) a clear or obvious error occurred and that 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. Jenkins,

(quoting People v. Piatkowski,

(2007)).

¶ 39 The first step in our analysis is to determine whether a clear or obvious error occurred.

Jenkins,

(citing Herron,

).

¶ 40 “ ‘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.’ ” Jenkins,

(quoting People v. Bannister,

(2008)). “In a criminal case, the trial court must instruct the jury on the elements of

the offense, the burden of proof, and the presumption of innocence.”

(citing People v. Pierce,

(2007)). Jury instructions should be construed as a whole. People v. Parker,

(2006).

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¶ 41 Here, the parties agree that the instruction on aggravated kidnapping was erroneous.

Defendant was charged under the inducement theory set forth in subsection (a)(3) of the

kidnapping statute. 720 ILCS 5/10-1(a)(3) (West 2008). The indictment alleged that defendant

committed aggravated kidnapping:

“in that he, knowingly by deceit or enticement induced [B.H.] to go from one place to

another with intent to secretly confine her against her will, and committed a felony, to

wit: criminal sexual assault upon [B.H.]”

¶ 42 The appropriate corollary instruction for the inducement theory of aggravated kidnapping

is set forth in Illinois Pattern Jury Instructions, Criminal, No. 8.05B (4th ed. 2000) (hereinafter,

IPI Criminal 4th No. 8.05B), which provides that the State must prove:

“the defendant, by deceit or enticement, induced ___ to go from one place to another

place; and

*** That the defendant acted knowingly; and

*** That when the defendant did so, he intended secretly to confine ___ against

her will; and

***

*** That the defendant committed criminal sexual assault upon ___.” IPI

Criminal 4th No. 8.05B.

¶ 43 In contrast, the instruction issued to the jury here was predicated on actual secret

confinement. See 720 ILCS 5/10-1(a)(1) (West 2008). The instruction provided that the State

had to prove defendant “secretly confined [B.H.] against her will; and *** That the defendant

acted knowingly; and *** That the defendant committed criminal sexual assault upon [B.H.]” IPI

Criminal 4th No. 8.05. This instruction did not require the jury to find that defendant “by deceit

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or enticement, induced” B.H. “to go from one place to another place” while intending to secretly

confine her. IPI Criminal 4th No. 8.05B. Rather, it only required the jury to find actual

confinement. It was error to provide an instruction which omitted an element of the charged

offense. “The failure to instruct the jury on an element of the offense was error.” Jenkins,

(citing People v. Fonder,

; Neder v.

United States,

(1999)).

¶ 44 Having found error, this court must next determine whether it requires reversal.

Defendant contends that the instructional error resulted in plain error requiring reversal under

both prongs of the plain-error analysis. The State asserts that the variance between the

instructions and the indictment does not require reversal because the instructions did not misstate

the law, they did not cause defendant prejudice in preparing for trial or expose him to double

jeopardy, the jury necessarily found him guilty of aggravated kidnapping under the correct

theory in convicting him of kidnapping, and any error was harmless and not structural.

¶ 45 Given the resolution of defendant’s challenge to the sufficiency of the evidence

supporting his aggravated kidnapping conviction, we do not find that the evidence was so closely

balanced that the error threatened to tip the scales of justice against him regardless of the

seriousness of the error. Piatkowski,

. Therefore, we will consider the error

under the second prong of plain-error analysis.

¶ 46 The State contends that second-prong plain error is reserved for only structural errors.

Notably, however, that the Illinois Supreme Court has recently clarified that although its prior

decisions “equated second-prong plain error with structural error, we did not restrict plain error

to the [six] types of structural error that have been recognized by the [United States] Supreme

Court.” People v. Clark,

, ¶ 46. Accordingly, as this court has stated, “[w]hen an

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error is made regarding jury instructions, the error constitutes plain error under the second prong

where it ‘creates a serious risk that the jurors incorrectly convicted the defendant because they

did not understand the applicable law, so as to severely threaten the fairness of the trial.’ ” Id.

¶ 77 (quoting People v. Sargent,

(2010)). As our supreme court has

observed, “[t]his standard is a difficult one to meet.” Sargent,

.

“The interests of justice demand that the rule of waiver be modified, in criminal

cases, where necessary to ensure the fundamental fairness of the trial. [Citations.]

Fundamental fairness includes, among other things, seeing to it that certain basic

instructions *** are given. Instructions on the elements of the offense are among

these basic instructions, and we have recognized that the trial court has responsibility

for ensuring that they are given. [Citation.] The failure to correctly inform the jury of

the elements of the crime charged has been held to be error so grave and fundamental

that the waiver rule should not apply.” People v. Ogunsola,

(1981).

¶ 47 For example, in Ogunsola, the defendant’s conviction was reversed where an omitted

jury instruction “removed from the jury’s consideration a disputed issue essential to the

determination of defendant’s guilt or innocence.”

. The defendant was charged with

deceptive practices, but the jury was not instructed that it had to find the defendant intended to

defraud the victim, which was an element of the offense.

As the primary issue at trial was

intent to defraud, the court held that “fundamental fairness required that the jury be instructed”

on this element.

¶ 48 Moreover, “[w]here conflicting instructions are given, one of which is a correct statement

of the law and the other is an incorrect statement of the law, the error is not harmless and

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constitutes grave error.” People v. Ayers,

(2002). In People v. Jenkins,

(1977), for example, one instruction on attempted murder failed to include the

essential element that the defendant must not have been justified in using the force employed,

which was at issue in the case, while another instruction given on attempted murder included this

element.

The Illinois Supreme Court found the instructions were inconsistent and

contradictory on an element of the offense and concluded that this amounted to a substantial

defect constituting plain error.

.

“It is well established that the giving of contradictory instructions on an essential

element in the case is prejudicial error, and is not cured by the fact that another

instruction is correct. While it is true that an instruction may be inaccurate, and other

instructions may remove this error, such cannot be so when the instructions are in

direct conflict with one another, one stating the law correctly and the other

erroneously. This is particularly true where the instruction defines the issues in the

case or is mandatory in character.”

.

¶ 49 The Jenkins court held that the contradictory instructions improperly forced the jury to

select the proper instruction and it was possible that the defendant was convicted under the

erroneous instruction.

. Although the defendant failed to object to the incorrect

instruction, the court was “of the opinion that where there are two separate issue instructions, one

proper and the other erroneous, each inconsistent with the other, our Rule 451(c) is applicable.”

¶ 50 Along the same lines, People v. Ayers,

(2002), also involved

contradictory and inconsistent issue instructions defining the elements of first and second degree

murder. One instruction omitted that the State must prove the defendant was not justified in

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using the force employed, and another instruction included this language. The court held that the

contradictory instructions on an essential element constituted grave error requiring reversal.

Because the jury was “forced to choose between two inconsistent issues instructions,” the

omitted element of “without lawful justification” was not harmless error.

. The court

rejected the State’s contention that the combination of the instructions and closing arguments

cured any error.

While the instructions given were technically legally correct IPI instructions,

both first and second degree murder were at issue and the defendant presented evidence of self-

defense.

. The jury was therefore forced to choose between two contradictory

instructions relating to a central issue in the case, self-defense, and the jury could have

improperly convicted on the basis of the incorrect instruction without considering self-defense.

1

¶ 51 The cases discussed above are on-point in resolving the present case. Here, the

discrepancy is between two statutory subdivisions of the same offense, i.e., aggravated

kidnapping predicated on actual confinement or deceit and enticement. The aggravated

kidnapping instruction based on actual confinement did not align with the charges in the

indictment or the evidence and arguments the parties presented at trial. Actual confinement was

not the focus of the trial. The essential issue at trial was whether B.H. willingly accompanied

defendant and consented to the sexual intercourse, or whether defendant induced her to

accompany him using deceit and enticement. The State asserted at trial that defendant used

1 See also People v. Grant,

(1981) (reversible error in failing to instruct the jury on the mental state required to be guilty of assault and criminal trespass to land as mental state was an essential element of both crimes); People v. Ulloa,

(use of inapplicable instruction and misstatement of the elements of an offense affected the fundamental fairness of the trial); People v. Jenkins,

(in trial for felony resisting or obstructing a police officer, failure to instruct that resisting or obstructing must be proximate cause of officer’s injury constituted plain error where jury’s determination depended solely on credibility assessment of defendant and officer). Cf. People v. Jones,

(1979) (no reversible error despite erroneous instruction on mental state required for attempted murder because the intent element was not at issue and intent to kill was “blatantly evident” from the evidence at trial).

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deceit and enticement to induce B.H. to go out with him that night and to accompany him to the

abandoned house. Defendant argued that he had no deceptive intentions in asking her out to

dinner and a movie and then to inspect the house, and that she willingly agreed to all of their

activities that night.

¶ 52 The State contends that the instructions stated a “valid” offense and “adequately stated

the law.” Although the aggravated kidnapping instruction was a legally correct IPI instruction, it

did not accurately state the law as related to the charged offense in this case. According to the

Committee Notes, it was an incorrect instruction based on the charges in the indictment. See IPI

Criminal 4th No. 8.04, Committee Note, at 4; IPI Criminal 4th No. 8.05B, Committee Note, at

11. As such, the jury instructions were missing an essential element of the offense charged. The

jury conceivably found defendant guilty of aggravated kidnapping without making the requisite

finding that he induced B.H. by deceit and enticement.

¶ 53 Notably, the jury received the appropriate “inducement” theory instruction on kidnapping

which included the “deceit or enticement” language. The State argues that because the jury was

properly instructed on the “deceit or enticement” theory in the kidnapping instruction, the jury

necessarily found him guilty under that theory in convicting him of aggravated kidnapping.

However, the record does not support this contention. The trial court instructed the jury that

defendant was charged with aggravated kidnapping and “may be found not guilty of aggravated

kidnapping or guilty of aggravated kidnapping or guilty of kidnapping.” The court informed the

jury that it would receive three verdict forms reflecting these options and it should only select

one verdict form. It further instructed them that defendant was charged with kidnapping and he

“may be found not guilty of kidnapping or guilty of kidnapping.” The court informed the jury it

would receive two verdict forms for this charge and it should select only one. Further, the court

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instructed “[i]f you find that the state has proven the defendant guilty of both aggravated

kidnapping and kidnapping, then you should select the verdict form finding the defendant guilty

of aggravated kidnapping and sign it as I have stated. *** Do not sign the verdict form finding

the defendant guilty of kidnapping.” Accordingly, the jury was given the impression that it could

find defendant guilty of aggravated kidnapping under the actual confinement theory regardless of

whether it concluded that he was guilty of kidnapping under the deceit and enticement theory.

¶ 54 We note that defendant asserts that a note sent by the jury during deliberations evidenced

its confusion over the conflicting instructions. The jury note inquired, “Difference aggravated or

not? Explain what constitutes aggravated.” The note did not specify whether it was referring to

aggravated criminal sexual assault or aggravated kidnapping. We can only speculate as to which

charge the jury was referring. Nevertheless, it suggests the possibility that the jury was confused

regarding the difference between aggravated kidnapping and kidnapping. Moreover, the trial

court’s response—that it would provide the written instructions—would have only exacerbated

the jury’s confusion because, as noted, they contained the wrong instruction for aggravated

kidnapping. As a result, the court’s error rose to the level of plain error.

¶ 55 Accordingly, we reverse defendant’s conviction for aggravated kidnapping. His

conviction for aggravated sexual assault predicated upon kidnapping is affirmed. As noted, the

jury was correctly instructed on kidnapping. The erroneous instruction on aggravated kidnapping

did not impact the aggravated sexual assault offense.

¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we affirm defendant’s conviction of aggravated criminal sexual

assault, reverse his conviction for aggravated kidnapping, and remand for resentencing.

¶ 58 Affirmed in part and reversed in part. Cause remanded for resentencing.

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