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                                Appellate Court                             Date: 2019.04.15
                                                                            10:39:06 -05'00'



                  People v. Mitchell, 2018 IL App (1st) 153355



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            KEVIN MITCHELL, Defendant-Appellant.



District & No.     First District, Fourth Division
                   Docket No. 1-15-3355



Filed              December 20, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No.
Review             13-CR-12967(03); the Hon. Lawrence E. Flood, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Manuel S. Serritos, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                   and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for
                   the People.



Panel              JUSTICE REYES delivered the judgment of the court, with opinion.
                   Presiding Justice McBride and Justice Gordon concurred in the
                   judgment and opinion.
                                             OPINION

¶1       After a jury trial, defendant Kevin Mitchell was convicted of felony murder predicated on
     aggravated kidnapping and sentenced to 60 years’ imprisonment in the Illinois Department of
     Corrections (IDOC). On appeal, defendant maintains (1) the charging instrument failed to
     provide him with adequate notice of the charge against him, (2) his due process rights were
     violated when the charging instrument failed to demonstrate that the prosecution had
     jurisdiction to charge him under Illinois law, and (3) he was denied a fair trial where the trial
     court failed to instruct the jury on the offense of aggravated kidnapping. For the reasons that
     follow, we affirm.

¶2                                         BACKGROUND
¶3       On June 18, 1999, Darwin Green informed the Federal Bureau of Investigation (FBI) that
     his twin brother, Darryl, had been kidnapped in Cook County, Illinois. The following day,
     Darryl’s body was discovered alongside a road in a wooded area of Lake County, Indiana. His
     hands and feet were bound together with duct tape, and he had four gunshot wounds to the back
     of his head.
¶4       After a lengthy investigation by the State and the FBI, defendant was indicted by a grand
     jury on 26 counts stemming from allegations that he kidnapped and murdered Darryl on June
     18, 1999. The 26 charges included 13 counts of murder, 5 counts of knowing and intentional
     murder, 5 counts of strong probability murder, 1 count of felony murder predicated on
     aggravated kidnapping, 1 count of felony murder predicated on armed robbery, 1 count of
     felony murder predicated on burglary, 8 counts of aggravated kidnapping, 1 count of armed
     robbery, 3 counts of burglary, and 1 count of aggravated unlawful restraint. The indictments
     alleged that the 26 charged offenses occurred in Cook County and that defendant, while armed
     with a firearm, along with three other individuals (Dimeyon Cole, Menard McAfee, and
     Raymond Winters (codefendants)), kidnapped Darryl, held him for ransom, and caused his
     death.
¶5       Defendant proceeded to represent himself pro se during the trial. Prior to opening
     statements but after the jury had been selected, the State nol-prossed 25 counts and elected to
     proceed only on count III of the indictment, felony murder (720 ILCS 5/9-1(a)(3) (West 1998))
     predicated on aggravated kidnapping. On appeal, defendant does not challenge the sufficiency
     of the evidence or the trial testimony; accordingly only that testimony relevant to the appeal is
     recounted herein.
¶6       The State presented the following evidence, which included the testimony of two
     codefendants, Winters and McAfee. Winters and McAfee both testified that in exchange for
     their truthful testimony they pleaded guilty with regard to this offense and received respective
     sentences of 10 and 30 years, to run concurrently with sentences they were already serving for
     offenses unrelated to this case.
¶7       The evidence presented was as follows. At the time of his death, the victim Darryl and his
     twin brother Darwin owned and operated a beeper store located in Broadview, Illinois. In June
     1999, defendant and his codefendants discussed kidnapping someone and holding them for
     ransom. They ultimately decided to kidnap one of the owners of the beeper store. After casing
     the store, on June 18, 1999, Winters and McAfee entered the establishment armed with at least


                                                 -2-
       one firearm. Darryl, who happened to be working in the store at the time, had his limbs duct
       taped and was carried out of the store by Winters and McAfee. Darryl was placed into a Chevy
       Astro van, where defendant and Cole were waiting inside. Defendant and his codefendants
       transported Darryl to a residence located next door to defendant’s mother’s house in the 3900
       block of West Maypole Avenue in Chicago.
¶8         At 2:30 p.m. Darwin received a phone call on his cell phone. When Darwin answered, the
       caller informed him “we got your brother” and hung up. Darwin did not recognize the voice
       and believed it to be a prank call. Darwin, however, received four or five more phone calls to
       the same effect, and the caller indicated that he wanted $200,000 for Darryl’s return. Darwin
       informed the caller that he did not have $200,000, so the caller then demanded $100,000.
       Darwin responded to the caller he needed time to obtain the funds.
¶9         In the meantime, Darwin went to the beeper store and found the front door to be locked.
       Darwin telephoned Darryl’s girlfriend Tiffany and requested she bring the key to the business.
       When Tiffany arrived, Darwin went inside and found the store to be in disarray.
¶ 10       Darwin then called the FBI to inform them of his brother’s kidnapping. Darwin met with
       FBI special agents Matt Alcoke and Jim Stover at the Broadview, Illinois, police station. After
       informing them about the phone calls, Darwin agreed to let the FBI agents record the calls.
¶ 11       Winters testified that at 8 p.m. he called Darwin and told him to arrange for Darryl’s
       funeral. Two voices can be heard on the recording of the phone call, which was published to
       the jury. One of the voices on the recording was identified by defendant’s girlfriend, Stephanie
       Lewis, and McAfee’s sister, Marianne McAfee, as belonging to defendant. Darwin did not
       receive any further phone calls regarding his brother’s abduction.
¶ 12       Believing Darwin had contacted the authorities, defendant and his codefendants decided to
       drive to Indiana, approximately 1½ hours away. Winters drove the Chevy Astro van while
       defendant provided him with directions. During the drive, Darryl was beaten over the head
       with a steering wheel locking device and stunned with a taser. According to Winters, they
       hoped that by beating Darryl they could somehow still obtain the ransom money. Defendant
       directed Winters to exit the highway when they reached Gary, Indiana. Winters then turned
       down a wooded residential street and made a U-turn. The van stopped by the side of the road,
       where defendant, Cole, and McAfee exited the vehicle. Defendant and McAfee carried Darryl
       out of the vehicle and placed him in a ditch. McAfee then remained outside the vehicle as a
       lookout while defendant and Cole stayed with Darryl. Winters and McAfee then heard at least
       three gunshots. Defendant and Cole subsequently returned to the van. According to McAfee,
       defendant informed them that Cole was too scared to pull the trigger so defendant said he had
       to do it.
¶ 13       Eleanor Jonson testified that, at the same time as the van was pulling into the residential
       street, she was pulling her vehicle into her friend’s driveway. Jonson also testified she noticed
       the van make a U-turn. Jonson watched from a distance as two men lifted what she testified
       looked like a large rug out of the van. The two men threw the object they were carrying into a
       ditch on the side of the road, and Jonson heard three gunshots. The next day, Jonson walked
       over to the location where she observed the men and discovered Darryl’s body. Jonson
       thereafter contacted the authorities.
¶ 14       An autopsy was conducted by the Lake County, Indiana, medical examiner, who
       determined that Darryl died due to four gunshot wounds to the head. Three .380-caliber shell
       casings were discovered at the scene, and three bullets were recovered from Darryl’s body

                                                   -3-
       during the autopsy. According to Brian Mayland, a forensic scientist with the Illinois State
       Police and an expert in firearms identification, the three bullets were discharged from the same
       firearm.
¶ 15       During their investigation FBI Special Agents Stover and Alcoke discovered that the
       Chevy Astro van was driven exclusively by defendant but registered to Stephanie Lewis,
       defendant’s girlfriend. They also discovered that the cell phone used to make the ransom calls
       was owned by Winters. The FBI agents later located the Chevy Astro van, obtained a search
       warrant, and searched the vehicle. In conducting the search, 14 separate sets of fingerprints
       were recovered, one which they identified as matching Winters’s fingerprints. A steering
       wheel locking device was also discovered inside the vehicle. A preliminary test indicated the
       presence of blood on the device. A subsequent DNA test revealed that it was Darryl’s blood.
¶ 16       The State rested, and defendant rested without presenting any evidence. After closing
       arguments and jury instructions, the jury deliberated and ultimately found defendant guilty of
       felony murder predicated on aggravated kidnapping (720 ILCS 5/9-1(a)(3) (West 1998)).
       During posttrial motions defendant was represented by counsel. Defense counsel filed a
       motion in arrest of judgment and a motion for a new trial. In relevant part, defense counsel
       argued that the trial court lacked subject-matter jurisdiction over the case because the murder
       occurred in Indiana. The trial court denied the motions. The matter then proceeded to
       sentencing, where defendant was sentenced to 60 years’ imprisonment in the IDOC. This
       appeal followed.

¶ 17                                          ANALYSIS
¶ 18       On appeal, defendant maintains (1) the charging instrument failed to provide him with
       adequate notice of the charge against him, (2) his due process rights were violated when the
       charging instrument failed to demonstrate the prosecution had jurisdiction to charge defendant
       under Illinois law, and (3) he was denied a fair trial where the trial court failed to instruct the
       jury on the offense of aggravated kidnapping. We address each issue in turn.

¶ 19                                 Sufficiency of the Indictment
¶ 20       Defendant contends that the indictment was insufficient for two reasons. First, the
       indictment was insufficient because the State failed to provide him with adequate notice of the
       charge against him. Second, the indictment failed to assert the prosecution had jurisdiction to
       charge defendant of felony murder as it did not specify that the conduct constituting the
       aggravated kidnapping occurred in Illinois. We first address defendant’s contention regarding
       notice.

¶ 21                                              Notice
¶ 22       In his opening brief, defendant asserted that the indictment failed to adequately inform him
       of the charges against him with sufficient detail to allow preparation of his defense because the
       State nol-prossed all of the charges except for count III, the felony murder count predicated on
       aggravated kidnapping. Relying on People v. Carey, 2016 IL App (1st) 131944, defendant
       maintained he was without sufficient knowledge regarding which aggravated kidnapping
       charge served as the predicate for the felony murder count. As noted by the State in its
       response, the appellate court’s decision in Carey was overturned by our supreme court after


                                                    -4-
       defendant’s opening brief was filed. See People v. Carey, 2018 IL 121371, ¶ 1. Consequently,
       defendant acknowledges his argument regarding sufficient notice is no longer viable and
       concedes that point in his reply.

¶ 23                                       Geographical Jurisdiction
¶ 24       In his briefs, defendant attacked the sufficiency of the indictment arguing that the count
       under which he was tried and found guilty (count III) was ambiguous and failed to demonstrate
       the State had jurisdiction to prosecute him for a murder that occurred in Indiana. Defendant
       argues that the insufficient charging instrument “compromised” his right to due process. Thus,
       defendant maintains that the prosecution failed to prove it had geographical jurisdiction
       beyond a reasonable doubt.
¶ 25       Section 1-5(a)(1) of the Criminal Code of 1961 (Code) provides that a defendant is subject
       to prosecution in Illinois for a criminal offense if it is “committed either wholly or partly within
       the State.” 720 ILCS 5/1-5(a)(1) (West 1998); People v. Young, 312 Ill. App. 3d 428, 429-30
       (2000). An offense is committed partly within Illinois if “either the conduct which is an
       element of the offense, or the result which is such an element, occurs within the State.” 720
       ILCS 5/1-5(b) (West 1998). In regards to prosecutions pursuant to section 9-1(a)(3) of the
       Code (720 ILCS 5/9-1(a)(3) (West 1998) (first degree murder committed while attempting or
       committing a forcible felony other than second degree murder), also known as the
       “felony-murder statute,” section 1-5(b) provides that, “the attempt or commission of a forcible
       felony other than second degree murder within this State is conduct which is an element of the
       offense for which a person is subject to prosecution in this State.” 720 ILCS 5/1-5(b) (West
       1998). “The purpose behind the felony-murder statute is to limit the violence that accompanies
       the commission of forcible felonies, so that anyone engaged in such violence will be
       automatically subject to a murder prosecution should someone be killed during the
       commission of a forcible felony.” People v. Belk, 203 Ill. 2d 187, 192 (2003).
¶ 26       As with other elements, the State may satisfy its burden of proving geographical
       jurisdiction by either direct or circumstantial evidence. People v. Gilliam, 2013 IL App (1st)
       113104, ¶ 34 (citing Young, 312 Ill. App. 3d at 430). The test applied in an appeal challenging
       a criminal conviction based on the sufficiency of the evidence is whether, after viewing the
       evidence in the light most favorable to the prosecution, any rational trier of fact could find the
       essential elements of the crime beyond a reasonable doubt. Id.
¶ 27       Defendant maintains that the State’s evidence was insufficient to prove the element of
       geographical jurisdiction beyond a reasonable doubt, analogizing the facts in this case to those
       in People v. Holt, 91 Ill. 2d 480 (1982). Defendant’s reliance on Holt is misplaced because the
       legislature amended Illinois’s geographical jurisdiction statute as a direct result of the Holt
       decision. Therefore, Holt is not determinative of the outcome in the present case. Compare Ill.
       Rev. Stat. 1979, ch. 38, ¶ 1-5, with 720 ILCS 5/1-5 (1998).
¶ 28       In Holt, the defendant kidnapped the victim in Illinois and drove her to Wisconsin where he
       raped and murdered her. Holt, 91 Ill. 2d at 482-83. The defendant was convicted in Illinois of
       aggravated kidnapping and murder under the felony-murder rule. Id. On appeal, the State
       argued that the kidnapping was an element of the murder as charged under the felony-murder
       rule, and the occurrence of the kidnapping in Illinois therefore conferred jurisdiction over the
       murder charge. Our supreme court disagreed, holding that pursuant to section 1-5 of the Code
       as then in effect (Ill. Rev. Stat. 1979, ch. 38, ¶ 1-5), the kidnapping in Illinois could not support

                                                     -5-
       jurisdiction in Illinois over the felony-murder charge. Holt, 91 Ill. 2d at 492. This was so where
       the facts demonstrated the killing outside of Illinois was not done in furtherance of the
       kidnapping and there was not “otherwise a danger inherent in the felony [(kidnapping)], so that
       one could say realistically that the felony caused the death.” Id. at 486.
¶ 29       Subsequent to the Holt decision, our legislature changed the law regarding Illinois’s
       geographical jurisdiction to include the exact set of facts as they appear in this case. The
       legislative debates indicate that the legislature intended to allow a felony murder charge to be
       prosecuted in Illinois when the death occurred outside of Illinois but the underlying forcible
       felony was attempted or committed in Illinois. See 85th Ill. Gen. Assem., House Proceedings,
       June 19, 1987, at 138. The debates further demonstrate that the legislature specifically sought
       to change the law in response to the Holt decision:
               “My understanding of the Bill is that the Supreme Court ruled some time ago that the
               Felony, the commission of the forcible Felony, which I had always thought was a
               predicate to the Felony Murder, did not constitute an element of the crime so that the
               rule where, when an element of the crime takes place in Illinois, any part of the crime,
               or any act committed in the course of the commission of the crime, whether it occurred
               outside of the State or not, can be subject to prosecution in Illinois. That is, the Illinois
               courts have jurisdiction. The Supreme Court held, apparently, that the underlying
               forcible Felony attempt was not an element of Felony Murder. That resulted in the
               application of the general rule precluding prosecution for the murder in Illinois.” Id. at
               144 (remarks of Representative McCracken).
       Representative McCracken went on to explain how the amendment to the Criminal Code
       would affect Illinois’s geographical jurisdiction over the offense of felony murder:
               “What this will do, or what it seeks to do, is state… in effect, overrule that [Holt]
               decision holding that the underlying forcible Felony attempt or commission, is an
               element in the offense of Felony Murder. *** This [amendment] would bring us within
               the general rule that where any element of the crime is committed in Illinois, that crime
               may be prosecuted in Illinois regardless of where it ultimately or otherwise occurred.”
               Id. at 144-45.
¶ 30       Upon the passing of this public act, the following sentence pertaining to felony murder was
       added to section 1-5 of the Code: “In a prosecution pursuant to paragraph (3) of subsection (a)
       of Section 9-1, the attempt or commission of a forcible felony other than second degree murder
       within this State is conduct which is an element of the offense for which a person is subject to
       prosecution in this State.” Pub. Act 85-740 (eff. Jan. 1, 1988); 720 ILCS 5/1-5 (West 1998).
       Thus, as intended by our legislature, when the predicate felony in a felony murder charge is
       either attempted or committed in Illinois it is considered an element of the offense, and Illinois
       will have geographical jurisdiction over the felony murder charge.
¶ 31       Viewing the evidence in the light most favorable to defendant, under section 1-5 of the
       Code, the State proved beyond a reasonable doubt that the aggravated kidnapping was
       committed in Illinois. To reiterate, section 1-5 of the Code provides that a defendant is subject
       to prosecution in Illinois for a criminal offense if it is “committed either wholly or partly within
       the state.” 720 ILCS 5/1-5(a)(1) (West 1998). An offense is committed partly within Illinois if
       “either the conduct which is an element of the offense, or the result which is such an element,
       occurs within the State.” 720 ILCS 5/1-5(b) (West 1998).


                                                     -6-
¶ 32        Here, the aggravated kidnapping (an element of the offense as provided in section 1-5 of
       the Code) was committed in Illinois. An aggravated kidnapping is committed when an
       individual either (1) kidnaps for the purpose of obtaining ransom, (2) inflicts great bodily
       harm, or (3) commits the offense of kidnapping while armed with a dangerous weapon,
       including a handgun. See 720 ILCS 5/10-2, 33A-1(b) (West 1998). The evidence presented by
       the State, which included the testimony of accomplices to the kidnapping, demonstrated the
       predicate forcible felony, aggravated kidnapping, occurred in Illinois. Winters testified that he
       and defendant, along with the codefendants, planned to kidnap one of the owners of the beeper
       store located in Broadview, Illinois. He further testified that on June 18, 1999, he, defendant,
       and the codefendants drove to the beeper store armed with firearms. He then exited the van and
       entered the store with McAfee. According to Winters, he held Darryl and forced him out the
       back door at gunpoint and placed him into the Chevy Astro van. Winters also testified that he
       heard defendant tell Darryl numerous times that “[h]e gone give that money up” but that Darryl
       responded that he did not have any money. Winters testified that they took Darryl to
       defendant’s mother’s house, where defendant telephoned Darwin requesting a ransom for
       Darryl’s release. Winters also made a call to Darwin to the same effect. When Darwin did not
       produce the funds, Winters called Darwin and relayed a message from defendant to “make
       arrangements” for his brother’s funeral and that he (Darwin) caused his brother’s death.
       According to Winters, defendant’s voice can be heard in the background of the audio recording
       of the phone call. Winters further testified that defendant told him and their codefendants that
       they were going to take Darryl to Indiana and act like they were going to kill him. Winters
       drove the Chevy Astro van while defendant struck Darryl with a club four or five times while
       telling Darryl he wanted the money. A taser was also used by defendant during the drive. Upon
       exiting the expressway in Gary, Indiana, Winters stopped the van; Darryl was taken out of the
       van and shot by defendant.
¶ 33        Codefendant McAfee similarly testified. According to McAfee, in summer of 1999,
       defendant asked him if he wanted to rob someone. McAfee agreed because he needed money
       and so he, defendant, and their codefendants began casing the beeper store. Then, on June 18,
       1999, they went to the beeper store with the intention of kidnapping one of the twins. Everyone
       was armed except for McAfee. He and Winters entered the store while defendant waited in the
       Chevy Astro van. McAfee restrained Darryl and searched the cash register. Finding little
       money, McAfee called defendant on a walkie-talkie and informed defendant that there was no
       money in the store. Defendant instructed McAfee to bring Darryl to the van. Once Darryl was
       in the van, they drove to defendant’s mother’s house where they held Darryl at gunpoint and
       made phone calls to Darwin requesting money for Darryl’s release. After sunset, they carried
       Darryl from the basement to the van, which they drove to Indiana. While they were in the van,
       McAfee hit Darryl on the head with a club, and Cole used a taser on Darryl. When they exited
       the highway, the van came to a stop in a wooded area, and McAfee got out of the van along
       with defendant and Cole. Defendant then carried Darryl to the woods followed by Cole who
       was armed with a handgun. After hearing three shots, defendant and Cole returned to the van;
       defendant, not Cole, was now carrying the handgun. The evidence presented, viewed in the
       light most favorable to the prosecution, clearly demonstrates that the aggravated kidnapping
       occurred in Illinois and continued into Indiana.
¶ 34        Defendant, however, relying on People v. Hickman, 59 Ill. 2d 89 (1974), and People v.
       Bongiorno, 358 Ill. 171 (1934), argues that the evidence here demonstrates that the conduct


                                                   -7-
       constituting aggravated kidnapping ended in Illinois before defendant took Darryl to Indiana,
       where his death occurred. According to defendant, when he and his codefendants reached his
       mother’s house, it was a “place of safety” under Hickman and Bongiorno, and therefore the
       aggravated kidnapping was complete at that time. Other than this general argument, defendant
       points us to no specific evidence that the aggravated kidnapping concluded when defendant
       and his codefendants reached his mother’s house.
¶ 35        We find defendant’s reliance on Hickman and Bongiorno to be misplaced. Illinois courts
       have held that a killing which occurs during the course of an escape from a forcible felony is
       within the operation of the felony-murder rule. Hickman, 59 Ill. 2d at 94 (the period of time and
       activities involved in escaping to a place of safety are part of the crime itself). The
       felony-escape rule was explained in Bongiorno as follows:
                “It is also a recognized principle of law that where two or more persons are engaged in
                a conspiracy to commit robbery and an officer is murdered while in immediate pursuit
                of either or both of the offenders who are attempting escape from the scene of the crime
                with the fruits of the robbery, either in possession of one or both, the crime of robbery
                is not complete at the time of the murder, inasmuch as the conspirators had not then
                won their way, even momentarily, to a place of temporary safety, and the possession of
                the plunder was nothing more than a scrambling possession.” Bongiorno, 358 Ill. at
                173.
       Here, Bongiorno is not controlling under these facts because the evidence demonstrates that
       defendant was committing aggravated kidnapping while Darryl was confined in defendant’s
       mother’s house and through Darryl’s murder in Indiana. See 720 ILCS 5/9-1(a)(3) (West
       1998) (“A person who kills an individual without lawful justification commits first degree
       murder if, in performing the acts which cause the death *** he is attempting or committing a
       forcible felony other than second degree murder.”). Winters and McAfee testified that Darryl
       remained duct taped and was held at gunpoint by Cole after they left with defendant. Upon
       their return, defendant and his codefendants placed Darryl, who was still duct taped, into the
       Chevy Astro van and drove to Indiana. While en route to Indiana, Darryl was held at gunpoint,
       beaten with a club, and stunned with a taser. While defendant suggested at oral argument that
       the State must prove that the aggravated aspect of the kidnapping was ongoing in order to
       confer jurisdiction to Illinois and that the evidence is unclear as to whether Darryl was beaten
       while he was still in Illinois or in Indiana, exactly where Darryl was beaten is of no
       consequence because the evidence demonstrated that the kidnappers were armed with
       handguns throughout the kidnapping. See 720 ILCS 5/10-2(a)(5), 33A-1 (West 1998) (a
       kidnapper is guilty of the offense of aggravated kidnapping when he “[c]ommits the offense of
       kidnapping while armed with a dangerous weapon”). Furthermore, the testimony of Winters
       and McAfee did not preclude the jury from concluding that Darryl was beaten and stunned in
       Illinois. See 720 ILCS 5/10-2(a)(3) (West 1998) (a kidnapper is guilty of the offense of
       aggravated kidnapping when he “[i]nflicts great bodily harm”). Moreover, Winters’ testimony
       demonstrated that the kidnappers believed that by continuing to beat Darryl they could still
       obtain the ransom. See 720 ILCS 5/10-2(a)(1) (West 1998) (a kidnapper is guilty of the offense
       of aggravated kidnapping when he “[k]idnaps for the purpose of obtaining ransom from the
       person kidnapped or from any other person”). Accordingly, for the reasons stated herein, we
       conclude that the State proved the element of geographical jurisdiction beyond a reasonable
       doubt.


                                                   -8-
¶ 36                                             Jury Instruction
¶ 37        Defendant further argues that he was denied a fair trial because the trial court failed to fully
       instruct the jury on aggravated kidnapping, the predicate felony to felony murder. While
       defendant admits that the trial court instructed the jury regarding the definition of aggravated
       kidnapping, defendant maintains that the trial court committed reversible error when it did not
       provide the definition of kidnapping to the jury. Defendant further asserts the jury instructions
       were insufficient where the trial court failed to name an offense (either aggravated kidnapping
       or kidnapping) following the allegation of great bodily harm in the definition of aggravated
       kidnapping.
¶ 38        In response, the State asserts that, because defendant failed to raise this issue before the
       trial court, either at the time the instructions were chosen or in his motion for a new trial, he has
       forfeited the review of this issue. The State maintains that even if there was error with the jury
       instructions, any error was not grave error where the trial court did not omit an instruction on
       an element of the offense.
¶ 39        Defendant acknowledges that the error was not objected to at trial and was not raised as
       error in his posttrial motion. He seeks review of the issue under the plain-error doctrine.
       Ordinarily, a defendant forfeits review of an alleged error involving a jury instruction if he
       does not object to the instruction or offer an alternative instruction and does not raise the issue
       in a posttrial motion. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). Under Illinois Supreme
       Court Rule 451(c) (eff. Apr. 8, 2013), a defendant does not waive substantial defects in
       criminal jury instructions by failing to timely object to them where the interests of justice
       require. Piatkowski, 225 Ill. 2d at 564. Our supreme court has held that Rule 451(c) is
       coextensive with the plain-error clause of Illinois Supreme Court Rule 615(a) (eff. Jan. 1,
       1967) and that the two rules are construed identically. Piatkowski, 225 Ill. 2d at 564.
¶ 40        Under the plain-error doctrine, this court will review forfeited challenges when (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 or (2) a clear or obvious error
       occurred and the error is so serious that it affected the fairness of the defendant’s trial and the
       integrity of the judicial process, regardless of the closeness of the evidence. People v. Herron,
       215 Ill. 2d 167, 178-79 (2005). The defendant bears the burden of persuasion under each prong
       of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593 (2008). Where a defendant is unable to
       establish plain error, it is incumbent upon us to honor the procedural default. People v. Keene,
       169 Ill. 2d 1, 17 (1995). In undertaking this review, the first step in the analysis is to determine
       if error occurred in the giving of the instruction. Piatkowski, 225 Ill. 2d at 565.
¶ 41        Jury instructions are intended to guide the jury and to assist it in its deliberations and in
       reaching a proper verdict. People v. Parker, 223 Ill. 2d 494, 501 (2006). The function of jury
       instructions is to convey to the jury the law that applies to the evidence presented. Herron, 215
       Ill. 2d at 187. Jury instructions should not be misleading or confusing, but their correctness
       depends upon not whether defense counsel can imagine a problematic meaning but whether
       ordinary persons acting as jurors would fail to understand them. Id. at 188. Jury instructions
       should be construed as a whole, and we must determine whether the instructions fairly, fully,
       and comprehensively advised the jury of the relevant legal principles. Parker, 223 Ill. 2d at
       501. Whether jury instructions accurately conveyed the applicable law is reviewed de novo. Id.
¶ 42        We observe, however, that where a word or phrase is self-defining or commonly
       understood, the trial court’s failure to define the term during jury instructions is not reversible

                                                     -9-
       error. See, e.g., People v. Edwards, 343 Ill. App. 3d 1168, 1180 (2003) (instruction was not
       necessary to define “robbery”); People v. Manning, 334 Ill. App. 3d 882, 890 (2002) (no error
       where trial court did not define “conceal”); People v. Bradley, 192 Ill. App. 3d 387, 393-94
       (1989) (term “stolen motor vehicle” was readily understood and not in need of further
       definition via instruction). In contrast, “an omitted jury instruction constitutes plain error only
       when the omission 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.” People v. Hopp, 209 Ill. 2d 1, 12 (2004).
¶ 43        In this case, as to the felony murder charge, the jury was given Illinois Pattern Jury
       Instructions, Criminal, No. 7.01 (approved Jan. 30, 2015) (hereinafter IPI Criminal) defining
       first degree murder and IPI Criminal No. 7.02 (approved Jan. 30, 2015) (“Issues In First
       Degree Murder (When Second Degree Murder Is Not Also An Issue)”) with the forcible felony
       of “aggravated kidnapping” indicated as the predicate offense:
                    “To sustain the charge of first degree murder, the State must prove the following
                propositions: First, that the defendant, or one for whose conduct he is legally
                responsible, performed the acts which caused the death of Darryl Green.
                    And second; that when the defendant, or one for whose conduct he is legally
                responsible, did so, he was committing the offense of aggravated kidnapping.
                    If you find from your consideration of all the evidence that each one of these
                propositions has been proven beyond a reasonable doubt, you should find the defendant
                guilty.
                    If you find from your considerations 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.”
¶ 44        The jury was also provided with the definitional instruction of “aggravated kidnapping” as
       required by the committee note to IPI Criminal No. 7.01: “When paragraph [4] is given, insert
       in the blank the applicable forcible felony from those listed in 720 ILCS 5/2-8 (except second
       degree murder). Follow this instruction with the instruction defining that forcible felony.” IPI
       Criminal No. 7.01, Committee Note. The definitional instruction for aggravated kidnapping
       provided to the jury mirrored IPI Criminal 4th No. 8.04 and was as follows:
                    “A person who kidnaps another commits the offense of aggravated kidnapping
                when he kidnaps for the purpose of obtaining ransom or he inflicts great bodily harm
                upon the victim or he does so while armed with a dangerous weapon.”
       The jury was not provided with the instruction for “kidnapping.”
¶ 45        We find the cases of People v. McClendon, 197 Ill. App. 3d 472 (1990), and Edwards to be
       instructive. In McClendon, the defendant was convicted of armed violence based upon
       aggravated battery. Id. at 474. On appeal, the defendant argued that the trial court erred in
       instructing the jury on armed violence because, although the jury was instructed on aggravated
       battery, it was not instructed on the definition of battery. Id. at 480. The reviewing court first
       acknowledged that the defendant failed to preserve this issue for review and thus it would be
       considering the issue under the plain-error doctrine. Id. The reviewing court then observed
       that, “[i]n instructions, a term which is employed in a general, nontechnical context need not be
       defined.” Id. After comparing the statutory definition of battery (“[a] person commits battery
       when he knowingly or intentionally, without legal justification, causes harm to an individual


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       by any means”) to the dictionary definition of battery (“ ‘the unlawful beating or use of force
       on a person without his consent’ ”), the McClendon court concluded that even without the
       statutory definition of battery, the jury “would have understood the meaning of battery in this
       case” and thus no plain error occurred. Id. at 480-81 (citing Webster’s Ninth New Collegiate
       Dictionary 135 (1986)).
¶ 46       Similarly, in Edwards, the reviewing court concluded that the term “robbery” was
       employed in a general context and thus would have been understood by the jury so as not to
       rise to the level of plain error. There, the defendant was found guilty of felony murder
       predicated upon the offense of robbery. Edwards, 343 Ill. App. 3d at 1170. On appeal, the
       defendant argued he was denied a fair trial where the trial court did not instruct the jury as to
       the definition of robbery. Id. at 1175. The Edwards defendant, like the defendant in
       McClendon, also failed to raise the issue before the trial court, and thus the appellate court
       reviewed his claim for plain error. Id. at 1176. Although the reviewing court found that the
       omission of the definition of robbery (the predicate offense to the defendant’s charge of felony
       murder) was an error, it ultimately concluded it was not a grave error because the omitted
       instruction was not an element of the offense of felony murder. Id. at 1175-76, 1178-80. The
       reviewing court observed that the committee note to IPI Criminal 4th No. 7.01 required “that
       the jury receive, not the instruction on the elements of robbery but, rather, the more general
       instruction defining robbery.” Id. at 1179. The court further observed:
                “The requirement of a definitional instruction on the underlying offense, and not an
                elements instruction, may be due in part to the fact that proof that the underlying felony
                occurred is not used to establish that felony per se, but is used to establish the requisite
                substitute criminal intent for felony murder [citation]. In order to sustain a charge of
                felony murder the State is not required to prove an intentional murder [citation]. The
                underlying forcible felony substitutes for the intent to commit murder. [Citation.]” Id.
                (citing People v. Gulliford, 86 Ill. App. 3d 237, 244 (1980), People v. Shaw, 186 Ill. 2d
                301, 322 (1998), and People v. Jenkins, 190 Ill. App. 3d 115, 137 (1989)).
¶ 47       The Edwards court adopted the approach used in McClendon and compared the statutory
       definition of robbery with its dictionary definition. In doing so, it concluded that the term
       robbery was “employed in a general, nontechnical context” and that nothing in the jury
       instructions obscured its meaning. Id. at 1180. The Edwards court ultimately concluded no
       grave error occurred in the case, particularly where “the committee notes to IPI Criminal 4th
       require[d] that the jury be given, not the instruction on the elements of robbery but, rather, just
       the definition.” Id. The Edwards court further stated: “We believe that this is to make sure that
       the jury understands the nature of the underlying forcible felony. Although people may not
       understand the nature of all underlying forcible felonies, people commonly understand the
       nature of simple words like ‘battery’ and ‘robbery’ and there is very little chance of
       confusion.” Id.
¶ 48       Defendant here cannot establish that there was a serious risk the jury did not understand the
       definition of kidnapping, as defendant was not convicted of aggravated kidnapping and the
       jury was presented with evidence defendant and his codefendants duct taped Darryl’s limbs,
       forcibly removed him from his place of business, held him in the basement of a residence, and
       transported him to Indiana against his will. The offense of kidnapping is defined as follows:
       “Kidnapping occurs when a person knowingly: (1) And secretly confines another against his
       will, or (2) By force or threat of imminent force carries another from one place to another with

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       intent secretly to confine him against his will, or (3) By deceit or enticement induces another to
       go from one place to another with intent secretly to confine him against his will.” 720 ILCS
       5/10-1(a) (West 1998). Kidnapping is defined in the dictionary as “to seize and detain or carry
       away by unlawful force or fraud and often with a demand for ransom.” Merriam-Webster
       Online Dictionary, https://www.merriam-webster.com/dictionary/kidnap (last visited Oct. 3,
       2018) [https://perma.cc/3ETV-GPJ7]. In this case, where defendant was not prosecuted for
       aggravated kidnapping or kidnapping, the term “kidnapping” was employed in a general,
       nontechnical context and, pursuant to our case law, need not be defined. See Edwards, 343 Ill.
       App. 3d at 1180; McClendon, 197 Ill. App. 3d at 481.
¶ 49       Moreover, the jury instructions provided in this case were even more compressive than
       those provided in Edwards. Whereas in Edwards the trial court failed to instruct the jury
       regarding the predicate offense of robbery, the jury in this case was provided with the
       definition instruction for the predicate offense of aggravated kidnapping. The term
       “aggravated kidnapping” was unobscured and was defined using the pattern jury instruction.
       While the definitional instruction for “kidnapping” was not provided to the jury, we find that
       the general definition for the term “kidnapping” provided the jury with what it needed to
       determine whether the State proved defendant guilty of felony murder beyond a reasonable
       doubt. See Edwards, 343 Ill. App. 3d at 1180. Like the terms “battery” and “robbery,”
       “kidnapping” is a commonly understood, simple term with “very little chance of confusion.”
       See id.
¶ 50       Defendant further argues that the jury instructions were insufficient where the trial court
       failed to name an offense (either aggravated kidnapping or kidnapping) following the
       allegation of great bodily harm in the definition of aggravated kidnapping.
¶ 51       To put defendant’s argument into context, we recite the pertinent language of the IPI
       Criminal 4th No. 8.04 “Definition Of Aggravated Kidnapping” to which he is alluding:
                   “A person who kidnaps another commits the offense of aggravated kidnapping
               when
                   [1] he kidnaps for the purpose of obtaining ransom.
                                                     [or]
                   ***
                   [3] he [ (inflicts great bodily harm) (commits ___) ] upon the victim.
                                                     [or]
                   ***
                   [5] he does so while armed with a dangerous weapon.” (Emphasis added.)
       The jury was provided with the following instruction: “A person who kidnaps another commits
       the offense of aggravated kidnapping when he kidnaps for the purpose of obtaining ransom or
       he inflicts great bodily harm upon the victim or he does so while armed with a dangerous
       weapon.” (Emphasis added.)
¶ 52       Defendant maintains that the trial court failed to abide by the committee note to this
       instruction, which provides, “In paragraph [3], insert in the blank the name of the applicable
       felony and give the instruction defining that felony immediately following this instruction”
       when it did not name aggravated kidnapping or kidnapping following the great bodily harm
       phrase. See IPI Criminal 4th No. 8.04, Committee Note. We disagree with defendant’s
       interpretation of the committee note. The contents contained within the brackets of paragraph

                                                   - 12 -
       [3] are themselves contained within parentheses. This indicates that instructions should
       provide for one phrase (“inflicts great bodily harm”) or the other phrase (“commits ___”). IPI
       Criminal 4th No. 1.00 defines this as “[a]lternative language,” which is “designed to meet the
       circumstances of each case” and “is either bracketed or enclosed in parentheses.” Here, the
       trial court included the “inflicts great bodily harm” phrase in the jury instruction, and thus it
       did not need to include the “commits ___” phrase. Accordingly, we find no error occurred and
       therefore decline to review defendant’s claim under plain-error analysis.
¶ 53        In sum, “[t]he purpose of jury instructions is to provide the jury with correct legal
       principles [to] apply to the evidence, thus enabling the jury to reach a proper conclusion based
       on the applicable law and the evidence presented.” People v. Jackson, 331 Ill. App. 3d 279,
       290 (2002). As recognized by the court in Herron: “Jury instructions should not be misleading
       or confusing [citation], but their correctness depends upon not whether defense counsel can
       imagine a problematic meaning, but whether ordinary persons acting as jurors would fail to
       understand them [citation].” Herron, 215 Ill. 2d at 187-88. Our review of the record as a whole
       reveals that the jury would not have been misled or confused by the jury instructions presented.
       Accordingly, we affirm the judgment of the circuit court.

¶ 54                                       CONCLUSION
¶ 55      For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 56      Affirmed.




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