                                    2018 IL App (1st) 150149


                                                                            FIRST DIVISION
                                                                            August 20, 2018


No. 1-15-0149

                                         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. 14 CR 2711
                                                     )
ANDREW SLABON,                                       )      Honorable
                                                     )      Catherine M. Haberkorn,
       Defendant-Appellant.                          )      Judge Presiding.


       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Andrew Slabon, appeals his conviction of aggravated battery after a jury trial,

for which he was sentenced to 50 months’ imprisonment. On appeal, defendant contends (1) he

was denied his right to present a defense where the trial court barred him from presenting

testimony about his state of intoxication, barred him from cross-examining witnesses about his

intoxication, and did not allow him to argue that his intoxicated state was relevant in determining

whether defendant possessed the requisite mens rea for an aggravated battery conviction and (2)

the trial court erred when it instructed the jury that voluntary intoxication was not a defense and

refused to instruct the jury on the lesser-included offense of simple battery where he presented

slight evidence that he did not know the person he kicked was a nurse. Defendant also requests
No. 1-15-0149


that the clerk of the circuit court correct his mittimus to properly reflect the name and statutory

citation of his convicted offense. For the following reasons, we affirm defendant’s conviction

and sentence and order the clerk to correct the mittimus to reflect a conviction for aggravated

battery of a registered nurse pursuant to section 12-3.05(d)(11) of the Criminal Code of 2012

(Criminal Code) (720 ILCS 5/12-3.05(d)(11) (West 2014)).

¶2                                       JURISDICTION

¶3     Defendant was sentenced on December 11, 2014. He filed a notice of appeal that same

day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 and 606,

governing appeals from a final judgment of conviction in a criminal case entered below (Ill. S.

Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014)).

¶4                                       BACKGROUND

¶5      The following facts are relevant to this appeal. Defendant was charged with one count of

aggravated battery for kicking Lauren Benjamin while she was performing her duties as a nurse.

Defendant represented himself throughout the proceedings. Prior to trial, the State filed a motion

in limine to prevent defendant from presenting a defense of voluntary intoxication. The State

argued that Illinois law no longer recognizes such a defense because section 6-3 of the Criminal

Code (720 ILCS 5/6-3 (West 2014)), provides only that an intoxicated person may not be

criminally responsible for conduct if “such condition is involuntarily produced.” Defendant

responded that he had no intention to use that defense and that his theory of defense was “that this

never happened, this incident never occurred.” However, he wanted to present a toxicology report

indicating his high blood alcohol level at the time of the incident because “it has to do with why

[he] was even in the hospital” and “has something to do with” the ‘knowing’ element of

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aggravated battery where he “did not voluntarily walk into this hospital.” The court granted

defendant time to research the issue and at a later hearing, defendant stated he had no objection to

the motion. Before jury selection, defendant noted the motion in limine, but stated that while he

was not raising voluntary intoxication as a defense, his intoxication was relevant to whether he

possessed the requisite state of mind. The trial court stated that it would allow “[n]othing about

voluntary intoxication, as it is not a defense in Illinois.”

¶6      On January 27, 2014, Officer Angelo Sanchez and his partner, Officer James Mackin,

were dispatched to 2644 North Mason Avenue in Chicago, Illinois, to conduct a possible death

investigation. The officers entered the residence and noticed emergency personnel tending to a

woman on the floor. Officer Sanchez observed defendant sitting on a couch about six or seven

feet away, screaming hysterically, flailing his arms, and trying to get up. He tried to calm

defendant down, but defendant did not respond. The officers moved defendant to another

location in the house but he did not cooperate. For their safety as well as defendant’s, the officers

handcuffed him so they could transfer him to a bedroom.

¶7      After being moved, defendant kept trying to go back to the living room, and the officers

unsuccessfully tried to calm him down. They called for backup, and Officers Jerry Adamski and

David Cummens came to the bedroom. When defendant was informed that the woman was

deceased, he continued to scream and said he wanted to kill himself. He yelled, “I can’t believe

this is happening. I can’t believe that she is gone. I don’t want to live anywhere.” Concerned for

defendant’s well-being, Officer Sanchez called an ambulance for defendant pursuant to Chicago

Police Department procedures. Defendant was still kicking and screaming when the ambulance

arrived, and the officers did not want to upset him further so they decided to escort him out from

the back of the house. Two firefighters, as well as Officers Adamski and Cummens, assisted

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defendant out to the ambulance. Defendant continued to state that he wanted to kill himself and

he was taken to Our Lady of Resurrection Hospital.

¶8     Chicago Fire Department emergency medical technician (EMT) Morris Bishop testified

that on January 27, 2014, he and his partner Quentin Strong responded to a psychiatric

emergency at a residence. They entered the residence and saw a woman lying on the floor. EMT

Bishop heard a man, later identified as defendant, scream and curse in a back room. He watched

defendant being escorted from the room, handcuffed. Defendant was belligerent. EMT Bishop

attempted to take defendant’s vitals and history in the ambulance, but defendant was very

combative. Defendant continued to yell, jerk and kick on the way to the hospital. At the hospital,

defendant was placed in a wheelchair and taken to the nurse’s station. EMT Bishop could not

recall defendant’s exact words when he was yelling and screaming.

¶9     Officer Cummens testified that on January 27, 2014, he and Officer Adamski responded

to a call for assistance. When they arrived, defendant was loud and upset, using profanity, and

flailing his legs. After he learned the woman was deceased, he threatened “I don’t want to live

anywhere. Just kill me, I want to kill myself.” Following police procedure, they called an

ambulance for defendant and when it arrived, Officer Cummens escorted defendant through a

rear door to the ambulance and rode with him and a paramedic to the hospital. While in the

ambulance, defendant refused to lay down on the gurney or give any personal information. He

told the EMT to “Go f*** yourself.” Defendant was very angry during the ride and started

kicking the gurney. At the hospital, Officer Cummens escorted defendant to the emergency room

and at the main desk, Benjamin introduced herself as one of the nurses and offered defendant a

glass of water. A doctor also introduced himself to defendant, who remained very agitated and

refused to answer questions.

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¶ 10   Officer Cummens accompanied defendant, Benjamin, other hospital personnel and a

security guard to room number 7. Benjamin reintroduced herself to defendant, explaining that

she was there to help him and needed to take his vitals. Defendant refused to lay down on the

hospital bed and asked her if she was Jewish. Throughout defendant’s cursing and belligerent

behavior, Benjamin remained calm and professional. When she tried to take his vitals, defendant

said, “Don’t touch me, you dirty Jew. Leave me alone.” The officers removed defendant’s

handcuffs so Benjamin could take his vitals but cuffed his wrists to the rails of the hospital bed.

Defendant continued to yell profanities and insults at Benjamin as she put an oxygen mask on

him, and he threatened to spit on people. Defendant’s wrists and legs were eventually placed in

soft restraints. Benjamin noticed that defendant’s oxygen mask had slipped and went to readjust

the mask. At this point, the soft restraints were on defendant’s ankles only and had not been

attached to the bed. As she adjusted his mask, defendant pivoted his hips, raised his knees to his

chin, and kicked Benjamin in the middle of her chest with his feet. She flew backwards 12 or 15

feet and bounced off the counter. The officers handcuffed defendant and placed him under arrest.

Benjamin returned to the room and continued to render care to defendant.

¶ 11   On cross-examination, Officer Cummens stated that he did not recall the exact words

defendant used when he saw him in the bedroom but knew that defendant was yelling

profanities. He did not recall whether defendant was unconscious at any point and denied telling

defendant that he was “never going to see [his mother] again” and that “she’ll have maggots

crawling on her.”

¶ 12   Dr. Kenneth Barrick testified that he was working in the emergency room at Our Lady of

Resurrection Hospital on January 27, 2014, wearing scrubs and an identification badge, when he

observed defendant brought in by two officers. Defendant was rocking back and forth, crying,

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and cursing. He tried to calm defendant, but defendant continued to rock back and forth,

expressing disbelief over his mother’s death and using “lots of curse words and expletives.”

Defendant was placed in room number 7 to isolate him from other patients in the emergency

room due to his loud and aggressive behavior.

¶ 13   Dr. Barrick testified that Benjamin was assigned to defendant’s care. She also wore

scrubs and an identification badge. Benjamin introduced herself to defendant and told him she

would be taking care of him. Defendant called her names and told her to “f*** off.” Benjamin

wanted to take defendant’s vitals so personnel repositioned defendant’s arms from behind his

back to either side of the bed. Defendant continued to shout profanities at Benjamin and although

Dr. Barrick tried to de-escalate the situation, defendant focused his aggressions on her. Dr.

Barrick ordered physical restraints and chemical restraints consisting of benzodiazepine, Haldol,

and Benadryl. Dr. Barrick stated that even after a second injection, defendant remained

aggressive. He did not recall whether defendant made suicidal threats in his presence but was

concerned about defendant being suicidal.

¶ 14   Dr. Barrick was present in the room when defendant was placed in soft restraints.

Defendant’s upper extremities were restrained first, and Benjamin began to secure his lower

extremities by placing restraints on his ankles. She noticed, however, that defendant’s oxygen

was low, and she went to the head of the bed to adjust his oxygen mask. As she leaned over to

place the mask on his face, defendant brought his knees up to his chest, turned toward Benjamin

and kicked her in the chest. She flew back 8 to 10 feet and struck the cabinets behind her very

hard. She stepped out of the room for a moment but returned about a minute later to take care of

defendant. Dr. Barrick described Benjamin upon her return as “beyond calm.”



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¶ 15   On cross-examination, Dr. Barrick stated that he did not ask defendant if he knew where

he was or what was going on, but based on defendant’s response to his initial questions, Dr.

Barrick concluded that defendant was lucid enough to understand his questions. Dr. Barrick

smelled alcohol on defendant but when defendant asked whether he thought defendant was

drunk, the trial court reminded defendant of its ruling that the evidence was not relevant because

voluntary intoxication is not a defense in Illinois. The trial court also sustained objections to

defendant’s question whether alcohol may have contributed to his emotional distress and his

attempt to question Dr. Barrick regarding his experience handling intoxicated patients.

¶ 16   Dr. Barrick further testified that when he first saw defendant, he conducted a patient

assessment for which he drew blood and conducted a urine toxicology screen. The assessment

revealed that defendant tested positive for cannabis and his blood alcohol levels were “244.” The

trial court sustained objections to defendant’s question of whether the administered medications

would react with alcohol and whether alcohol had something to do with defendant’s behavior.

Defendant replied that he was referring to his state of mind, and the trial court explained that

voluntary intoxication is not a legal defense.

¶ 17   Benjamin testified that on January 27, 2014, she was working at the emergency

department of Our Lady of Resurrection Hospital. She wore scrubs and a badge that identified

her as a registered nurse. She observed defendant in a wheelchair, accompanied by two officers

and two firefighters. Defendant appeared extremely agitated and was screaming profanities. She

overheard defendant ask for a glass of water and she offered one to him. Since he was

handcuffed, she held the cup for defendant while he drank. Defendant was taken to room number

7 and Benjamin was assigned to his case.



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No. 1-15-0149


¶ 18   In the room, Benjamin introduced herself to defendant and told him she would be taking

care of him. Two police officers, a hospital security guard, and Dr. Barrick were also in the

room. She tried to take defendant’s vitals, and defendant called her “a stupid Jew and a dirty

b***.” Defendant refused to answer any questions and continued to use profanities and insult

Benjamin. She asked the officers to remove defendant’s handcuffs so she could take his vitals,

and they proceeded to restrain his hands to the side rails of the gurney instead. As they did so,

defendant looked at Benjamin and said, “[D]on’t touch me you dirty Jew. You’re a f*** Jew. I

know you’re a Jew because your eyes are close together.” Defendant continued to thrash around

and call her names, and she could not take his vitals.

¶ 19   Defendant then made spitting sounds and threatened to spit on everyone in the room. A

mask was put on his face but he pulled it down. Dr. Barrick ordered chemical restraints which

are medications to help a patient relax when they are a danger to themselves or others. Benjamin

administered the chemical restraints via injection in defendant’s left thigh. Defendant then told

her, “[D]o it again, b***.” The injection did not appear to calm defendant. Benjamin then

administered the physical restraints starting with defendant’s wrists. As she did so, defendant

said, “[D]on’t touch me you stupid b***, f*** you, you f*** b***.” After defendant’s wrists

were secured, Benjamin started to put restraints on defendant’s ankles. Before she could do so,

she noticed that his oxygen saturation level was dropping so she retrieved an oxygen mask and

tried to put it on defendant. She leaned over him and as she placed the mask on his head

defendant “pulled his knees into his chest, pivoted his hips and kicked [her] in the chest with

both feet.” She flew back 8 to 10 feet where she struck a counter and hit an oxygen cylinder

before landing on her chest. She got up and left the room. She was in pain and felt scared, angry,

and frustrated. However, she soon returned to room number 7 to continue defendant’s treatment.

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¶ 20   On cross-examination, Benjamin stated that she did not remove defendant’s clothes nor

was she in the room when they were removed. She testified that defendant’s blood alcohol level

was 0.244 and she knew he was intoxicated. She placed a catheter on defendant to obtain a urine

sample and to ensure that he was not under the influence of drugs.

¶ 21   Defendant testified in his defense. He stated that on January 27, 2014, he was hysterical

and crying when paramedics arrived to render aid to his mother. He recalled Officer Sanchez and

that he felt “safe” around him and felt no “resentment towards anybody at that point.” Defendant

remembered being in his mother’s room, lying on her bed, and looking up to see Officer Sanchez

there. He asked the officer what was going on and the officer told him they were there to render

aid to his mother. Defendant remembered being handcuffed and he could not stand. He stated

that he “had been drinking that day” and “had been drinking for the whole year of 2013.”

Defendant then talked about how he began to drink on New Year’s Eve of 2012, how 2013 “was

pretty much a blur,” and the State objected. The trial court sustained the State’s objection.

¶ 22   Defendant testified that he remembered “being escorted out of the house—before that, I

remember being sat down at the couch” and the paramedic told him that there was nothing they

could do. Defendant started crying and became hysterical. He recalled being taken out of the

house and that “we need to take you to the hospital, or something to that effect.” They left out

the back door, and he noticed that the door leading to his attic apartment “was wide open.” He

remembered “closing it before [he] left because [his] mom always closed the door, and it got

cold for her. So [he] closed the door.”

¶ 23   Defendant did not recall walking to the ambulance, but he remembered riding in the

ambulance with the sirens on. The paramedic asked his name and “all of a sudden it kicked in

why [he] was there. [He] realized that [his] mother had passed, and [he] started crying again.”

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Defendant did not remember being taken out of the ambulance, but he recalled being in the

emergency room and Dr. Barrick talking to him. Defendant said, “please, somebody, just

euthanize me. Please put me out of my misery. I’m suffering here.” He recalled being in room 7

and having a “dialogue with Officer Cummens.” Defendant stated that the dialogue was not

serious. They were going back and forth, with Officer Cummens calling defendant a “momma’s

boy” and that he “should man up.” The officer called defendant a “p***” and defendant told

Officer Cummens that he was “a parasite” and “a drain on taxpayers.” Defendant testified that he

was “trying to be intelligent about it” and did not call the officer names. He was no longer crying

as the conversation “got [his] mind off what was going on.”

¶ 24   At this point, Benjamin walked in and asked, “Who’s a momma’s boy?” Defendant

responded, “Great. Look. A Jew.” Defendant testified that when she walked in, he “didn’t know

[she] was Ms. Benjamin at that time. She never identified herself to [him] at that time.” He and

Benjamin continued back and forth, and defendant “didn’t feel safe.” He told Benjamin that she

was overweight. Someone then said defendant needed to be restrained and he refused. He told

them he did not “want to be restrained” and that he wanted to leave. He remembered that an

officer and his partner were in the room. Although they did not speak to him, defendant recalled

that Benjamin “was definitely antagonistic. She was going back and forth with [him.] She was

not a professional nurse, and [he] did not feel like [he] was among professionals.”

¶ 25   Defendant testified that Benjamin walked in with a syringe and a bottle and she injected

him. He stopped moving while she injected the medicine “because if the needle [broke] in [his]

leg, [it was] going to be an issue.” He felt a little better after the injection so he asked Benjamin

to “please give me another shot.” She injected him again and defendant “was out.” When he

awoke, his clothes “were completely gone” and a tube was inserted into his penis. Officer

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Cummens said, “How do you feel, tough guy?” He told defendant that his mother was gone and

he would never see her again. Defendant stated that he did not break out of the restraints.

¶ 26   On cross-examination, defendant stated that he recalled being at the hospital but also that

at times he did not know whether he was at the hospital or in the emergency room. He did not

recall Benjamin introducing herself to him, nor could he recall that she told him she was his

nurse. He acknowledged that at certain points, [he] was probably aware of [his] surroundings.”

Defendant did not recall being transferred from a wheelchair to a gurney or kicking Benjamin in

the chest. Defendant stated that he could not raise his legs to kick Benjamin because he was

restrained.

¶ 27   During closing argument, defendant argued that he was “unreceptive” on that day due to

the circumstances. He argued that he was “taken from [his] home, brought to a hospital, and [he]

was injected with drugs, and at that time the State and the witnesses allege [he] kicked this

nurse.” He argued that “if a patient is not in control of his faculties and his psychological issues,

how can that patient be responsible?” He claimed he could not have known the circumstances of

that day in the hospital because of his severe emotional distress in finding his mother dead and

his state of intoxication. The trial court sustained the State’s objection, reminding defendant that

voluntary intoxication was not a defense. The jury was also given Illinois Pattern Jury

Instructions, Criminal, No. 24-25.02 (4th ed. 2000) (hereinafter IPI Criminal 4th), which stated

that voluntary intoxication is not a defense. The trial court refused defendant’s request to instruct

the jury on the lesser included offense of battery, finding that the evidence established Benjamin

was a nurse. After deliberations, the jury found defendant guilty of aggravated battery.

¶ 28   Defendant filed a motion for a new trial. He argued that the trial court’s statement during

cross-examination that voluntary intoxication is not a defense misled the jury to believe

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defendant’s state of mind was not an issue. Also, defendant argued the trial court erred in giving

IPI Criminal 4th No. 24-25.02 and in failing to instruct the jury on the offense of simple battery.

The trial court denied defendant’s motion and he was sentenced to 50 months’ imprisonment

followed by one year of mandatory supervised release. Defendant filed this timely appeal.

¶ 29                                        ANALYSIS

¶ 30    Defendant contends he was denied his right to argue at trial that he did not possess the

requisite mens rea for aggravated battery, where the trial court found evidence of his state of

intoxication irrelevant and barred him from presenting such testimony. A defendant has the right

to present a defense and to present his version of the facts to the jury. People v. Manion, 67 Ill.

2d 564, 576 (1977). However, the admissibility of evidence at trial is ultimately within the sound

discretion of the trial court, and a reviewing court will not disturb the trial court’s determination

absent an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 364 (1991). An abuse of

discretion occurs where the court’s decision is arbitrary, fanciful, or unreasonable or where no

reasonable person would take the view adopted by the court. Id.

¶ 31    Defendant was charged with aggravated battery under section 12-3.05(d)(11) of the

Criminal Code (720 ILCS 5/12-3.05(d)(11) (West 2014)), which provides that a person commits

this offense “when, in committing a battery,” “he or she knows the individual battered to be” a

“nurse while in the performance of his or her duties as a nurse.” On appeal, defendant argues that

he wanted to present evidence of his intoxication in order to show that, in his inebriated state, he

did not know Benjamin was a nurse. The State, however, argues that the trial court correctly

found this evidence irrelevant because voluntary intoxication is no longer a defense under

Illinois law.



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¶ 32    The State points to section 6-3 of the Criminal Code, which provides that “[a] person who

is in an intoxicated or drugged condition is criminally responsible for conduct unless such

condition is involuntarily produced and deprives him of substantial capacity either to appreciate

the criminality of his conduct or to conform his conduct to the requirements of law.” 720 ILCS

5/6-3 (West 2014). The State contends, pursuant to this provision, that a person in an intoxicated

condition is not criminally responsible for conduct only if the condition is involuntarily

produced. Our primary goal in interpreting a statute is to ascertain and give effect to legislative

intent, expressed by the statute’s plain and ordinary language. Lawler v. University of Chicago

Medical Center, 2017 IL 120745, ¶ 12. Where the statute’s terms are clear and unambiguous, a

court may not read into it exceptions, limitations, or conditions not expressed by the legislature.

Id.

¶ 33    We agree with the State’s interpretation and with its argument that because section 6-3

does not mention voluntary intoxication, that condition cannot be a defense to criminal conduct

under the statute. This interpretation also corresponds with the general principal under Illinois

law that “voluntary intoxication is not a defense to a criminal charge.” People v. Redmond, 265

Ill. App. 3d 292, 302 (1994). We do not find, however, that the omission of voluntary

intoxication in section 6-3 means this condition is never relevant in a criminal proceeding.

Rather, a person’s state of voluntary intoxication may be relevant in the commission of specific

intent crimes, which “require proof of an additional special mental element.” People v. Robinson,

379 Ill. App. 3d 679, 684 (2008). Courts have long recognized that “where voluntary intoxication

is so extreme as to suspend entirely the power of reasoning,” a defendant is incapable of forming

a specific intent or malice. People v. Cunningham, 123 Ill. App. 2d 190, 209 (1970) (and cases

cited therein). It follows that if aggravated battery is a specific intent offense, defendant’s state of

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voluntary intoxication is relevant to negate that specific intent, even if it does not provide an

affirmative defense against his criminal conduct.

¶ 34   Our appellate districts are split on whether aggravated battery is a specific intent offense.

See People v. Conley, 187 Ill. App. 3d 234, 241 (1989) (listing cases showing the split and

finding that inconsistent decisions exist within the First District). However, we need not decide

the issue here because regardless of whether aggravated battery is a specific intent crime, the

criminality of defendant’s conduct depends on whether he acted knowingly or intentionally.

People v. Phillips, 392 Ill. App. 3d 243, 258 (2009). The evidence presented at trial, including

defendant’s own testimony, shows that he had the requisite knowledge to commit aggravated

battery under section 12-3.05(d)(11), notwithstanding his intoxicated state.

¶ 35   “Knowledge, due to its very nature, is ordinarily proven by circumstantial evidence,

rather than by direct proof.” People v. Smith, 124 Ill. App. 3d 243, 248 (1984). To prove

knowledge by circumstantial evidence, the State must present sufficient facts from which an

inference of knowledge can be made. In re Keith C., 378 Ill. App. 3d 252, 260 (2007). To

convict defendant of aggravated battery under section 12-3.05(d)(11), the State must show that

defendant kicked Benjamin knowing she was a nurse performing her duties. 720 ILCS

5/12-3.05(d)(11) (West 2014). Defendant argues that he did not know Benjamin was a nurse

because she never introduced herself as such and, furthermore, he could not comprehend his

surroundings or circumstances due to his compromised mental state. The evidence presented at

trial contradicts defendant’s claims.

¶ 36   Testifying for the State, Officer Cummens, Dr. Barrick, and Benjamin all stated that

Benjamin introduced herself to defendant as a nurse who would be caring for him. They also

testified that as Benjamin tried to put an oxygen mask on defendant, he pulled up his knees,

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turned his legs toward her chest and kicked her. Defendant contends he did not comprehend what

was happening. However, he testified that he knew why the paramedics and officers were at his

residence, he recalled being moved from a sofa to another room, and he recalled being led out of

a back door to an ambulance. Defendant noticed that the door leading to his attic apartment “was

wide open,” and he remembered “closing it before [he] left because [his] mom always closed the

door, and it got cold for her. So [he] closed the door.” Defendant recalled riding in the

ambulance and being in the emergency room of the hospital. He recounted in detail the dialogue

he had with Officer Cummens, who called defendant a “momma’s boy,” and stated that he was

“trying to be intelligent about it.” He stopped crying as the conversation “got [his] mind off what

was going on.” He recalled talking with Dr. Barrick and cursing at Benjamin, calling her a

“Jew.” He stated that Benjamin “was not a professional nurse, and [he] did not feel like [he] was

among professionals.” Defendant recalled that she came in with a syringe and injected him, and

since he felt a little better after the injection, he asked her for another one. Although he was

agitated, defendant stopped moving while Benjamin injected the medicine “because if the needle

[broke] in [his] leg, [it was] going to be an issue.”

¶ 37   The detail and extent of defendant’s recall show an acute awareness of his surroundings

and disprove any notion that he did not know Benjamin was a nurse when he kicked her. People

v. Madej, 106 Ill. 2d 201, 216-17 (1985); People v. Smith, 195 Ill. 2d 179, 195 (2000).

Defendant’s conduct does not support his argument that he lacked “the mental state of

knowledge” for aggravated battery due to his intoxication. People v. Weir, 111 Ill. 2d 334, 340

(1986). Given the overwhelming evidence of defendant’s guilt, any error the trial court may have

committed by barring evidence of his mental state of intoxication was harmless. See People v.

Patterson, 217 Ill. 2d 407, 428 (2005).

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¶ 38   Furthermore, defendant was not deprived from presenting his theory of defense. A

defendant has the right to present a defense and to present his version of the facts to the jury.

Manion, 67 Ill. 2d at 576. At the hearing on the State’s motion in limine, defendant stated his

theory of defense was “that this never happened, this incident never occurred.” He testified in his

defense that after he received a second injection, he “was out.” Defendant stated that he did not

break out of the restraints. On cross-examination, he reiterated that he could not raise his legs to

kick Nurse Benjamin because he was restrained. Defendant also testified that due to his extreme

emotional distress, he was not always aware of his surroundings. He did not recall being

transferred from a wheelchair to a gurney, or kicking Nurse Benjamin in the chest. Numerous

State witnesses testified as to defendant’s agitated, distressed state, and defendant was able to

cross-examine witnesses about whether defendant appeared to know what was happening around

him. Defendant also managed to present evidence that he had been drinking heavily, and that his

blood alcohol level measured at .244. This evidence allowed the jury to consider defendant’s

version of the incident; therefore, he was not denied an opportunity to present crucial matters

explaining his actions. Id. at 577.

¶ 39   Next, defendant contends the trial court erred when it instructed the jury, over his

objection, that “[a] voluntarily intoxicated condition is not a defense to the charge of aggravated

battery.” Defendant argues that the instruction is an inaccurate statement of the law, since

voluntary intoxication can negate a specific intent, and it misled the jury into thinking “it could

not consider [defendant’s] intoxication at all.” Whether to give a particular jury instruction is

within the sound discretion of the trial court, and the court “does not abuse its discretion so long

as, ‘taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the

relevant legal principles.’ ” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d

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147, 203 (2006) (quoting Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d

260, 273-74 (2002)). However, whether a jury instruction correctly states the law is a question

we review de novo. People v. Pierce, 226 Ill. 2d 470, 475 (2007).

¶ 40   As we discussed above, “voluntary intoxication is not a defense to a criminal charge.”

Redmond, 265 Ill. App. 3d at 302. Also, although voluntary intoxication can negate specific

intent, courts disagree on whether or not aggravated battery is a specific intent offense. In fact, a

recent first district case found that aggravated battery was not a specific intent offense. See

People v. Brown, 2015 IL App (1st) 134049, ¶ 44. Furthermore, the trial court’s instruction did

not inform the jury it could not consider defendant’s intoxication at all, only that voluntary

intoxication cannot be a defense to the charge of aggravated battery. We find that the trial court’s

instruction accurately stated the law.

¶ 41   The trial court also did not abuse its discretion in giving the instruction. Although the

court did not allow defendant to present evidence of his intoxicated state as a defense to the

charge of aggravated battery, it did allow evidence showing that he was intoxicated. Defendant

testified that he had been drinking that day. Dr. Barrick testified that he smelled alcohol on

defendant. He further testified that when he first saw defendant, he conducted a patient

assessment for which he drew blood and conducted a urine toxicology screen. The assessment

revealed that defendant tested positive for cannabis and his blood alcohol level was “244.” Nurse

Benjamin testified that defendant’s blood alcohol level was 0.244 and she knew he was

intoxicated. As such, “the State was entitled to an instruction that protected against adverse

inferences which might have been drawn from” this evidence of intoxication. People v. Johnson,

110 Ill. App. 3d 965, 969 (1982).



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¶ 42   Next, defendant argues that the trial court should have instructed the jury on the

lesser-included offense of simple battery where defendant testified that he did not know

Benjamin was a nurse. Defendant correctly points out that “[a]n instruction on the

lesser-included offense is appropriate where the charged greater offense requires the jury to find

a disputed factual element that is not required for conviction of the lesser-included offense.”

People v. Garcia, 188 Ill. 2d 265, 284 (1999). Such an instruction is proper where slight

evidence exists that tends to prove the lesser-included offense rather than the greater. Id. at

284-85. The question is whether any evidence was presented at trial supporting this instruction.

¶ 43   Contrary to his argument on appeal, defendant did not testify at trial that he was unaware

Benjamin was a nurse. Rather, he testified that when she walked in, he “didn’t know [she] was

Ms. Benjamin at that time. She never identified herself to [him] at that time.” Defendant was

referring to the fact that she did not tell him her name, not whether she was a nurse. The

circumstantial evidence shows that defendant clearly knew Benjamin was a nurse. He never

questioned why she was in his hospital room or why she was using a syringe to inject him with

medicine. He even asked her to administer more medicine after he began to feel better from the

first injection. When speaking of her during his testimony, defendant stated that Benjamin “was

not a professional nurse, and [he] did not feel like [he] was among professionals” when he

interacted with her. Throughout his testimony and his cross-examination of the State’s witnesses,

defendant never questioned her status as a nurse. “Where the evidence undisputedly satisfies the

elements which distinguish aggravated battery from simple battery, no simple battery instruction

is required to be given.” People v. Krone, 98 Ill. App. 3d 619, 623 (1981).

¶ 44   Even if the trial court erred in refusing to instruct the jury on the offense of simple

battery, a new trial is warranted only if defendant is prejudiced by the error. Dahan v. UHS of

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Bethesda, Inc., 295 Ill. App. 3d 770, 777 (1998). As discussed above, the overwhelming

evidence presented at trial shows that defendant kicked Nurse Benjamin while knowing at the

time that she was a nurse performing her duties. We find no reversible error here.

¶ 45   Finally, defendant argues that his mittimus should be corrected to reflect the proper

offense of which he was convicted. Presently, his mittimus shows a conviction of aggravated

battery pursuant to section 12-3.05(d)(5) (720 ILCS 5/12-3.05(d)(5) (West 2014)), which refers

to battery against a “judge, emergency management worker, emergency medical technician, or

utility worker.” The State agrees that the mittimus should be corrected to reflect defendant’s

conviction for aggravated battery of a registered nurse pursuant to section 12-3.05(d)(11) (id.

§ 12-3.05(d)(11)). Therefore, we should order the clerk of the court to correct defendant’s

mittimus to reflect his conviction for aggravated battery under section 12-3.05(d)(11) of the

Criminal Code.

¶ 46   For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 47   Affirmed.




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