                         NO. 4-05-0865            Filed 1/23/08

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,      )     Appeal from
          Plaintiff-Appellee,             )     Circuit Court of
          v.                              )     Livingston County
TYRONE DORN,                              )     No. 05CF102
          Defendant-Appellant.            )
                                          )     Honorable
                                          )     Harold J. Frobish,
                                          )     Judge Presiding.


          JUSTICE MYERSCOUGH delivered the opinion of the court:

          In August 2005, a jury convicted defendant, Tyrone

Dorn, of aggravated battery (720 ILCS 5/12-4(b) (West 2002)) for

spitting on a correctional institution officer.     In October 2005,

the trial court sentenced defendant to three years' imprisonment.

Defendant appeals, arguing the court improperly instructed the

jury on the definition of "knowingly."    We affirm.

                          I. BACKGROUND

          In May 2005, the State charged defendant, an inmate at

the Pontiac Correctional Center (Pontiac), with aggravated

battery (720 ILCS 5/12-4(b) (West 2002)).     The information

alleged that on or about November 19, 2002, defendant knowingly

made physical contact of an insulting or provoking nature with

Jason Brownfield, knowing Officer Brownfield was a correctional

institution employee engaged in the execution of his official
duties, by spitting upon Officer Brownfield's face.

          The jury trial commenced in August 2005.     Immediately

prior to selecting the jury, the parties discussed the State's

theory of transferred intent and what the prosecutor could say

about transferred intent in his opening statement.     Defense

counsel argued that for defendant to be guilty of aggravated

battery, defendant had to choose to spit on the correctional

officer as opposed to attempt to spit on another inmate and

accidentally hit a correctional officer.    The prosecutor, how-

ever, stated that if defendant knew a correctional officer was

in close proximity to the inmate at whom he was spitting, that

was sufficient to support the aggravated-battery charge.     The

trial court stated as follows:

                 "That [(the prosecutor's statement)], I

          think is the proper interpretation of the

          law.   Otherwise, it would be a defense to

          every aggravated[-]battery case, well, [']I

          intended to hit the inmate.    Now, I knew the

          officer was there.   I knew the officer was

          behind him.[']   And I don't know what the

          evidence is going to be here. [']I knew he

          was close.   I knew that if my spit went the

          wrong way, I might hit the officer, but I

          intended just to hit the inmate.[']    We may


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          have a directed verdict on aggravated battery

          if on the aggravated part if the evidence is

          that there wasn't any officer around.    But if

          the evidence is that the officer is in close

          proximity to the inmate he was trying to hit,

          I believe the legislature intended in that

          case when you choose to spit on somebody,

          with the officer being close by and you hit

          the officer, then you run the risk of an

          aggravated battery.   I know that is contrary

          to what your theory of the case is, [defense

          counsel].   But I do think the State needs to

          in opening statement, and you may want to

          work on the instruction, the State is saddled

          with the burden of showing he should have

          known that the officer was close enough to be

          hit by the spittle.   He should have known

          that."

          After a discussion about other issues, defense counsel

again expressed concern that the trial court would not rule on

what instruction would be given regarding transferred intent and

knowledge before opening statements.    The court responded that

the State would have to prove that when defendant spit, he knew a

correctional institution officer was close enough to defendant


                                - 3 -
that if defendant missed, he might hit the correctional officer.

Defense counsel argued that the court's position was consistent

with the "knowledge" instruction (apparently referring to Illi-

nois Pattern Jury Instructions, Criminal, No. 5.01B (4th ed.

2000) (hereinafter IPI Criminal 4th No. 5.01B)).    Defense counsel

stated that if the court was going to give that instruction on

knowledge, he wanted to know before closing.   The court indicated

that an instruction would be given that met "that requirement"

but the specific instruction given would be decided at the

instruction conference.   The court further indicated that counsel

had sufficient guidance for opening statements.

           The parties then tendered proposed instructions,

including IPI Criminal 4th No. 5.01B and a non-IPI instruction.

Those instructions are not contained in the record on appeal.

The court found both instructions insufficient.    The court

ordered both the State and defense counsel to prepare an instruc-

tion explaining to the jury that if defendant was aware a correc-

tional officer was in close proximity to defendant's intended

victim, and the correctional officer got hit even though defen-

dant did not intend to hit the correctional officer, he is

guilty.   If defendant was not aware that an officer was close

enough to be hit, then the jury should find him not guilty.    The

court also indicated that the parties could define "awareness."

           After the jury was selected, the issue of knowledge


                               - 4 -
arose again.   The trial court discussed an instruction apparently

prepared by the court and the instructions tendered by the State

and defense counsel.    These instructions appear to be somewhat

different than those tendered at the jury-instruction conference

and are not contained in the record on appeal.      The trial judge

indicated he would give his instruction, over defense counsel's

objection, unless "I have some light of day here that I don't now

appreciate."

          At trial, the State's witnesses testified that Officer

Brownfield, a correctional institution officer, was escorting

"inmate Moore" inside Pontiac.    Billy Joe Austin, a correctional

institution officer, was escorting defendant.     When Officer

Brownfield and defendant passed inmate Moore and Officer Austin,

defendant kicked at Moore but missed.     After Officer Austin put

leg irons on defendant, Officer Austin and defendant again passed

Officer Brownfield and inmate Moore.     They passed within five

feet of each other.    This time, defendant spit.   The spittle hit

Officer Brownfield in the face.

          The State's witnesses testified that they believed

defendant was attempting to spit on inmate Moore but hit Officer

Brownfield.    The State's witnesses also testified that Officer

Brownfield was in close proximity--less than an arm's length

away--to inmate Moore when defendant spit.     Investigator Jack

Libby testified that during his investigation of the incident,


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defendant told Libby he was spitting at Moore but hit Brownfield

accidentally.   Defendant did not testify at trial.

          At the jury instruction conference, the trial judge

stated he would instruct the jury with court's instruction No. 1

over defendant's objection.     Court's instruction no. 1 provided

as follows:

                "A person's awareness of the fact that

          he was going to perform a battery upon an

          intended victim is sufficient to support a

          charge of aggravated battery even if the

          actual victim was not the intended victim,

          provided the State has proved the following

          propositions:

                     1. The defendant knew Jason

                Brownfield to be a correctional

                institution[] employee, who was

                engaged in the execution of his

                official duties.

                     2.   The defendant knew Jason

                Brownfield was in such close prox-

                imity to the intended victim that

                it was substantially probable Jason

                Brownfield could be the victim of

                the battery."


                                 - 6 -
The court rejected defendant's proposed instruction based on IPI

Criminal 4th No. 5.01B on the basis that it was "confusing" and

"inappropriate."   The instruction tendered by defendant provided

as follows:

               "A person acts knowingly with regard to

          the nature or attendant circumstances of his

          conduct when he is consciously aware that his

          conduct is of such nature or that such cir-

          cumstances exist.   Knowledge of a material

          fact includes awareness of the substantial

          probability that such fact exists.

               A person acts knowingly with regard to

          the result of his conduct when he is con-

          sciously aware that such result is practi-

          cally certain to be caused by his conduct."

          Defendant's instruction No. 1 (based on IPI

          Criminal 4th No. 5.01B).

          The trial court also instructed the jury, without

objection, as follows:

               "A person commits the offense of aggra-

          vated battery when he knowingly and by any

          means makes physical contact of an insulting

          or provoking nature [to] another person, and

          in doing so, he knows the individual harmed


                               - 7 -
           is a correctional institution employee, who

           at the time is engaged in the execution of

           official duties."   People's instruction No.

           11 (based on IPI Criminal 4th No. 11.15).

The court further instructed the jury that the State had to prove

defendant (1) knowingly made physical contact of an insulting or

provoking nature with Officer Brownfield; (2) knew Officer

Brownfield was a correctional institution employee; and (3) knew

Officer Brownfield was engaged in the execution of official

duties.   People's instruction No. 12; see also IPI Criminal 4th

No. 11.16.   The jury found defendant guilty of aggravated bat-

tery.

           In September 2005, defendant filed a motion for a new

trial raising, among other things, the jury-instruction issue.

In October 2005, the trial court denied defendant's motion and

sentenced defendant to three years' imprisonment.

           This appeal followed.

                           II. ANALYSIS

           Defendant argues the trial court, while properly giving

an instruction clarifying the element of knowledge, committed

reversible error by giving the court's own non-IPI instruction

rather than both paragraphs of the IPI instruction defining

"knowledge" (IPI Criminal 4th No. 5.01B).    Defendant argues the

court's instruction imposed upon the State a less burdensome


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standard than that required by IPI Criminal 4th No. 5.01B.

           Specifically, defendant argues the trial court's

instruction imposed a burden of proving a "substantial probabil-

ity" that defendant knew that the result of his conduct--hitting

the correctional institution officer--could ensue.   However,

according to defendant, IPI Criminal 4th No. 5.01B contemplates a

greater burden on the State--the burden of proving defendant knew

that the result was "practically certain" to be caused by the

conduct.   Defendant further argues that the result of his trial

would likely have been different had the jury been properly

instructed.   Defendant contends that it was not "practically

certain" that defendant's spit would strike the correctional

officer rather than inmate Moore.

           This court reviews de novo whether the jury instruc-

tions, as a whole, accurately conveyed the law.   People v.

Parker, 223 Ill. 2d 494, 501, 861 N.E.2d 936, 939 (2006) (provid-

ing that the jury instructions are considered as a whole).

However, we review for an abuse of discretion the trial court's

decision to give a particular jury instruction.   People v.

Daniels, 287 Ill. App. 3d 477, 485, 677 N.E.2d 1385, 1391 (1997).

In this case, we review de novo whether court's instruction No.

1, along with the other instructions, accurately conveyed the

law.   This court reviews for an abuse of discretion the court's

decision to give that instruction.


                               - 9 -
          The offense of aggravated battery occurs when a person

commits a battery and knows the individual harmed is a correc-

tional institution employee engaged in the execution of his

official duties.   720 ILCS 5/12-4(b)(6) (West 2002).   A person

commits battery when he "intentionally or knowingly without legal

justification and by any means *** makes physical contact of an

insulting or provoking nature with an individual."   720 ILCS

5/12-3(a)(2) (West 2002).   This court has previously found that

spitting constitutes contact of an insulting or provoking nature.

See People v. Peck, 260 Ill. App. 3d 812, 814-15, 633 N.E.2d 222,

224 (1994) (involving a defendant spitting in the face of a

police officer).

          Under the doctrine of transferred intent, one who does

an unlawful act is liable for the natural and probable conse-

quences of such act.   See People v. Hickman, 9 Ill. App. 3d 39,

44, 291 N.E.2d 523, 527 (1973)(finding, under the doctrine of

transferred intent, that the defendant's intent to kill his

brother was sufficient to support an aggravated-battery convic-

tion for actually harming his ex-wife even though the defendant's

ex-wife was not the intended victim).   Therefore, even if defen-

dant had only intended to commit a simple battery against inmate

Moore, he remained liable for the unintended consequences that

were the natural and probable consequence of his act.    See People

v. Varnell, 54 Ill. App. 3d 824, 828, 370 N.E.2d 145, 147 (1977)


                              - 10 -
(affirming conviction for aggravated battery under the

transferred-intent doctrine where the shooting of an individual

was a natural and probable consequence of the defendant's delib-

erate act of firing a cane gun to frighten a crowd); In re Joel

L., 345 Ill. App. 3d 830, 833, 803 N.E.2d 592, 594 (2004) (find-

ing the evidence supported the conclusion that the minor's

conduct in kicking the table was intentional and the bodily harm

to the officer that resulted was a natural consequence of the

intentional act); People v. Psichalinos, 229 Ill. App. 3d 1058,

1067, 594 N.E.2d 1374, 1381 (1992) (finding the defendant had the

requisite mental state as to the actual victim where the defen-

dant had the requisite mental state as to the intended victim).

          When defendant requested a jury instruction on the

definition of "knowingly," the trial court sought to give such an

instruction in light of the transferred-intent doctrine.   After

rejecting defense counsel's tendered instruction based on the

first two paragraphs of IPI Criminal 4th No. 5.01B as "inappro-

priate" and "confusing," the court instructed the jury with its

own instruction based on the first paragraph of IPI Criminal 4th

No. 5.01B.

          Defendant argues the trial court should have instructed

the jury with the first two paragraphs of the applicable IPI

instruction, IPI Criminal 4th No. 5.01B.   When the IPI contains

an instruction applicable in a criminal case, giving due consid-


                             - 11 -
eration to the facts of the case and the applicable law, and the

court determines the jury should be instructed on the subject,

the IPI instruction should be used unless the court determines it

does not accurately state the law.       210 Ill. 2d R. 451(a); People

v. Smith, 237 Ill. App. 3d 901, 909, 605 N.E.2d 105, 110 (1992).

It is within the trial court's discretion whether to give or

refuse a non-IPI instruction.    Smith, 237 Ill. App. 3d at 909,

605 N.E.2d at 110.

          The first two paragraphs of IPI Criminal 4th No. 5.01B

provide as follows:

               "A person [(knows) (acts knowingly with

          regard to) (acts with knowledge of)] the

          nature or attendant circumstances of his

          conduct when he is consciously aware that his

          conduct is of such nature or that such cir-

          cumstances exist.   Knowledge of a material

          fact includes awareness of the substantial

          probability that such fact exists.

               A person [(knows) (acts knowingly with

          regard to) (acts with knowledge of)] the

          result of his conduct when he is consciously

          aware that such result is practically certain

          to be caused by his conduct."      IPI Criminal

          4th No. 5.01B.


                                - 12 -
The committee note to IPI Criminal 4th No. 5.01B explains that

the first paragraph is applicable when the offense is defined in

terms of prohibited conduct while the second paragraph is appli-

cable when the offense is defined in terms of a prohibited

result.   Defendant argues that he was not guilty of aggravated

battery unless he was "practically certain" that he would spit on

Officer Brownfield.    Defendant cites People v. Lovelace, 251 Ill.

App. 3d 607, 622 N.E.2d 859 (1993), in support of his argument.

           However, Lovelace is distinguishable.   In Lovelace,

the appellate court held the trial court should have instructed

the jury with both paragraphs of IPI Criminal 4th No. 5.01B.

Lovelace, 251 Ill. App. 3d at 618, 622 N.E.2d at 867.   The court

concluded that both conduct and result were at issue because the

indictment charged the defendant with aggravated battery by

knowingly causing great bodily harm and aggravated battery of a

peace officer with the underlying battery based on knowingly

causing bodily harm.    Lovelace, 251 Ill. App. 3d at 619, 622

N.E.2d at 867.   The court held that a defendant charged with

knowingly causing great bodily harm or bodily harm must be

consciously aware that his conduct is practically certain to

cause great bodily harm or bodily harm.    Lovelace, 251 Ill. App.

3d at 619, 622 N.E.2d at 867.

           In this case, defendant was charged with aggravated

battery of a peace officer based on knowingly or intentionally


                                - 13 -
making physical contact of an insulting or provoking nature with

an individual.    While the State was required to prove that

defendant knowingly or intentionally made physical contact of an

insulting or provoking nature, the State did not have to prove

that defendant intended to spit on Officer Brownfield or that, by

spitting, he was "practically certain" to hit Officer Brownfield.

Under the transferred-intent doctrine, so long as the State

proved defendant had the requisite intent as to inmate Moore, and

that hitting Officer Brownfield was a natural and probable

consequence of that act, the requisite intent transferred to

Officer Brownfield.

            Consequently, the second paragraph of IPI Criminal 4th

No. 5.01B did not accurately convey the law.    Although the first

paragraph of IPI Criminal 4th No. 5.01B is consistent with the

principles of the transferred-intent doctrine, the trial court

did not abuse its discretion by refusing to give the instruction

here.    In fact, the court's instruction more clearly articulated

the principles of knowledge--consistent with the first paragraph

of IPI Criminal 4th No. 5.01B--and the transferred intent doc-

trine.    Because the court did not abuse its discretion by refus-

ing to instruct the jury with IPI Criminal 4th No. 5.01B, and

because the court's instruction accurately stated the law, we

affirm defendant's conviction for aggravated battery.

                           III. CONCLUSION


                               - 14 -
           For the reasons stated, we affirm defendant's convic-

tion.   As part of our judgment, we grant the State's request that

defendant be assessed $50 as costs for this appeal.

           Affirmed.

           McCULLOUGH and STEIGMANN, JJ., concur.




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