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                                 Appellate Court                         Date: 2017.07.26
                                                                         13:35:11 -05'00'




                  People v. Bardsley, 2017 IL App (2d) 150209



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CHAD R. BARDSLEY, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-15-0209



Filed             June 8, 2017



Decision Under    Appeal from the Circuit Court of McHenry County, No. 14-CM-1332;
Review            the Hon. Robert A. Wilbrandt, Jr., Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Erin S. Johnson, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
                  Delfino, Lawrence M. Bauer, and Diane L. Campbell, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE SPENCE delivered the judgment of the court, with opinion.
                  Justices Jorgensen and Schostok concurred in the judgment and
                  opinion.
                                             OPINION

¶1       After a bench trial, defendant, Chad R. Bardsley, was convicted of aggravated assault of a
     private security officer (720 ILCS 5/12-2(b)(4) (West 2014)). He appeals, asserting that,
     because the State’s evidence was sufficient to put self-defense at issue and did not rebut that
     defense, the State failed to prove his guilt beyond a reasonable doubt. We hold that
     self-defense, as a defense to assault (720 ILCS 5/12-1 (West 2014)) and derivative offenses,
     is an affirmative defense that a defendant forfeits by not raising. Furthermore, we hold that
     the State’s presentation of evidence sufficient to allow a defendant to raise the defense does
     not ipso facto raise the defense; rather, a defendant must explicitly raise the defense to avoid
     forfeiture. Defendant here did not explicitly raise self-defense, and he thus forfeited it. We
     therefore affirm his conviction.

¶2                                       I. BACKGROUND
¶3       Defendant was charged by complaint with a single count of aggravated assault involving
     his near-biting of Kenneth Klean, a hospital security officer at Centegra Hospital. At
     defendant’s bench trial, both parties made brief opening statements:
                 “[The State]: ***
                 Your Honor, there is going to be evidence and testimony from Kenneth Klean, a
            security officer for Centegra Hospital. He was acting within his capacities on July 19,
            2014 when the defendant, Chad Bardsley, who was in an intoxicated state, attempted
            to bite Officer Ken Klean *** as Officer Klean was trying to restrain him because of
            his belligerent actions.
                 ***
                 THE COURT: Defense?
                 [Defense counsel]: *** Everything the State says is entirely true except for one
            issue[:] [defendant] was never attempting to bite Mr. Klean. [Defendant] was brought
            in. He was in an intoxicated state.
                 Due to his state and him being aggressive, he was put in restraints. *** He was
            able to bite into those restraints in order to loosen one of his hands on several
            occasions, Mr. Klean having to come in on every occasion and then refasten it.
                 On one of the occasions, the last occasion, Mr. Klean walks in, and [defendant],
            again, was trying to loosen the strap in order to get his hand out. And it’s at that point
            that Mr. Klean basically *** puts his hand in the lion’s mouth and expected not to get
            bit.
                 [Defendant] made no attempt to bite at Mr. Klean. Mr. Klean was never bitten.”
¶4       Klean was the State’s sole witness. One of his duties at the hospital was “patient
     watches” with intoxicated or suicidal patients. On July 19, 2014, at approximately 2:45 a.m.,
     emergency medical services personnel brought to the hospital a patient Klean later learned
     was defendant. Officers of the Crystal Lake police department accompanied them. When
     defendant arrived, he was handcuffed face-down on a gurney. He had a laceration on one
     hand.



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¶5         Klean observed that defendant was uncooperative, had slurred speech, and had a strong
       smell of alcohol on his breath. Police officers tried to interview defendant at the hospital, but
       he was uncooperative and used “obscene language.” Defendant refused sutures for his hand;
       further, he insisted that he could not be made to stay at the hospital and that he wanted to go
       home. Hospital staff placed him in a hospital bed, but he kept trying to get up and was
       continually “arguing, swearing, yelling, [and] screaming.” After several hours of this kind of
       behavior from defendant, a nurse directed security personnel, including Klean, to put
       defendant in restraints. Defendant resisted this by thrashing. He also continued to demand
       that he be allowed to go home.
¶6         After defendant had been in restraints for about an hour and a half, the nurse had Klean
       help adjust the restraints to better accommodate defendant’s hand injury. Defendant then
       could reach his mouth to the restraint on his left wrist, and he began to bite at it. When
       defendant had been doing so for about an hour and a half, Klean decided that he needed to
       resecure the restraint. Defendant was upright in a bed with his hands restrained at his sides.
       As Klean moved to adjust the restraint, defendant lunged at Klean and tried to bite him.
       Klean estimated that defendant’s mouth came within a centimeter of Klean’s hand. Klean
       then sought police involvement.
¶7         The court granted the State’s motion to admit a certified copy of defendant’s previous
       conviction of possession of between 15 and 200 pills of MDMA (commonly known as
       ecstasy).
¶8         The State rested after defendant’s cross-examination of Klean.
¶9         Defendant moved for a directed finding and, in so doing, “stipulated” that he had been
       intoxicated. As in his opening statement, his sole argument was that he had been biting at the
       restraints and had not tried to bite Klean. The court denied defendant’s motion.
¶ 10       Defendant was the sole defense witness. He testified that, when he was brought into the
       hospital, he told the nurse that he was “claustrophobic” and that he was “freaking out”
       because of how he had been restrained on the gurney. He had not intended to bite, or bite at,
       Klean, but was only continuing to try to free his hand. On cross-examination, he agreed that
       he had been intoxicated but denied having used drugs. He agreed that the laceration was the
       result of playing with a knife while drunk, but he stated that he did not have that knife on his
       person when he arrived at the emergency room.
¶ 11       Klean testified in rebuttal. He gave a lay opinion, based on his experience as a police
       officer and, after his retirement from the police force, as a hospital security officer, that
       defendant was intoxicated when he arrived at the hospital. He also testified that defendant’s
       intoxication was the reason that he was brought to the hospital. Finally, he testified that he
       had found a pocket knife in one of defendant’s pockets when defendant arrived at the
       hospital, but he did not provide any specific evidence to suggest that this was the knife with
       which defendant had injured himself.
¶ 12       After the close of evidence, defendant’s argument focused at first on his motion to
       dismiss the case on the basis that the indictment was fatally flawed. Defendant then returned
       his focus to his claim that Klean was simply incidentally in the way of his attempt to free
       himself.
¶ 13       The court rejected defendant’s motion and made the following findings of fact:



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              “That the Defendant was voluntarily intoxicated on one or more substances. Although
              it doesn’t rise to a level of a defense, it certainly relates to his ability to relate and
              observe.
                  *** Apparently at the hospital he was shouting some obscenities at staff, and his
              actions could only be described as somewhat aggressive and unruly. And then he was
              restrained.
                  *** After he was restrained, a period of time went by, and the Defendant
              apparently bit through one of the restraints on his bed.
                  For his own protection and for the protection of others, apparently the staff at the
              hospital called in Officer Klean, and Officer Klean had been in there for a while while
              the Defendant was acting somewhat aggressively. And Officer Klean then began the
              process of physically restraining the Defendant.
                  ***
                  Officer Klean then put his hand on one of the Defendant’s arms, and *** the
              Defendant apparently *** lunged *** at it with his head and attempted to bite at least
              the spot where Officer Klean had his hand.
                                                  ***
                  First of all, did the Defendant act without lawful authority? *** The Court can’t
              see any lawful authority for trying to bite your restraints off.
                                                  ***
                  The Court finds that the Defendant knew, number one, that he was in a hospital
              bed being treated for a wound; number two, that he was surrounded by hospital staff
              and a security guard; and number three, that they were attempting to restrain him both
              physically and with hospital restraints.
                  Therefore, when Defendant turned his head and lunged with his head toward the
              area where he was being restrained, this action was not an accident. *** And, at the
              time of the action, with Officer Klean’s hand already upon him, the Court finds
              Defendant was consciously aware that this conduct was practically certain to cause
              [O]fficer Klean to become in reasonable apprehension of receiving a battery.
                  Even if Defendant’s thinking at the time was cloudy and he later claims that, well,
              this wasn’t intentional, the Court finds the actions were made knowingly and,
              therefore, the Court finds the Defendant guilty.”
¶ 14      The court sentenced defendant to conditional discharge with community service.
       Defendant moved for reconsideration of his motion to dismiss, and upon the denial of that
       motion, he timely appealed.

¶ 15                                          II. ANALYSIS
¶ 16       On appeal, defendant asserts that the State failed to prove his guilt beyond a reasonable
       doubt. In particular, he asserts that the State’s evidence showed that defendant’s lunge at
       Klean was legally justified as self-defense against a battery, specifically, unwanted medical
       treatment. The State argues that defendant is improperly attempting to raise this affirmative
       defense for the first time on appeal. Defendant replies that defense counsel’s arguments to
       the court “were sufficient to put [the defense] before the court *** [and] that the State’s own
       witness presented evidence sufficient to raise the affirmative defense.”

                                                   -4-
¶ 17        We hold that defendant forfeited the affirmative defense of self-defense because he did
       not raise it in the trial court. It is true that evidence sufficient to entitle a defendant to
       consideration of an affirmative defense can come wholly from evidence put on by the State.
       See, e.g., People v. Cord, 258 Ill. App. 3d 188, 192 (1994). That evidence need not amount
       to anything like proof of the defense: even “slight evidence” to support the defense is
       sufficient to allow consideration by the trier of fact. E.g., People v. Kucavik, 367 Ill. App. 3d
       176, 179 (2006). Once a defendant has adequately raised an affirmative defense, the State
       must rebut it beyond a reasonable doubt. E.g., People v. Jeffries, 164 Ill. 2d 104, 127 (1995).
       The parties agree that these principles govern here. The dispute is over what it means to
       “raise” a defense. We conclude that the mere presence in the State’s evidence of facts
       sufficient to permit a defendant to raise a defense is not by itself sufficient to trigger the
       requirement that the State disprove the defense.
¶ 18        Initially, we note that defendant appears to concede that self-defense was an affirmative
       defense to the aggravated assault charge such that the State did not need to prove lack of
       justification as an element of the offense. See 720 ILCS 5/7-14 (West 2014) (“A defense of
       justifiable use of force *** is an affirmative defense.”). The aggravating factor of the offense
       at issue here is that the assault was on a private security officer; thus, the elements that we
       need to consider are the elements of the underlying offense of assault. The statute on assault
       states that a “person commits an assault when, without lawful authority, he or she knowingly
       engages in conduct which places another in reasonable apprehension of receiving a battery.”
       (Emphasis added.) 720 ILCS 5/12-1(a) (West 2014). But the emphasized phrase is not an
       element of the offense.
¶ 19        Although statutory language similar to the “without lawful authority” clause has been
       deemed in some statutes to make lack of authority an element of the relevant offense, it does
       not have that effect in the assault statute. Two partially inconsistent lines of authority both
       lead to that conclusion. One line of authority simply rejects the idea that an absence or lack
       can be an element of an offense. This line has its most obvious start in People v. Hussey, 3
       Ill. App. 3d 955, 956 (1972), in which the court held that the phrase “ ‘without legal
       justification’ ” was unnecessary for a sufficient battery indictment. In People v. Worsham, 26
       Ill. App. 3d 767, 771 (1975), following Hussey, the court held that lack of justification was
       not an element of battery. These two decisions stated that “a negative” could not be an
       element of an offense. Although Worsham involved battery, it became the basis for the
       directions included with Illinois Pattern Jury Instructions, Criminal, No. 11.01 (4th ed. 2000),
       which provides that instructions on assault should include the “lack of lawful authority”
       language only when the defendant has raised an affirmative defense. In an analysis
       inconsistent with that in Hussey and Worsham, the court in People v. Pettus, 84 Ill. App. 3d
       390, 393 (1980), held that “without authority” language must be treated as an element of the
       offense, but only if lack of authority “is fundamental to the offense.” Thus, the Pettus court
       held that lack of authority to enter a home is an element of home invasion because, absent
       that requirement, the offense charged would be an entirely different one—in that case,
       aggravated assault or battery. Pettus, 84 Ill. App. 3d at 393. However, applied to the offense
       of assault, the rationale in Pettus requires the conclusion that lack of authority is not an
       element of assault: lack of authority is not fundamental to assault. When an assault is
       justifiable, an assault has still occurred, but the law excuses it. The evil that the law seeks to



                                                   -5-
       prevent is still there, but another need overrides it. This is in contrast with a trespass offense,
       in which, when authority exists, there is no evil for the law to excuse.
¶ 20        Defendant argues that self-defense was set out to a degree sufficient to require the court
       to consider it. We do not agree. The court addressed and rejected two intertwined defenses,
       and we do not see that defendant raised any others. First, it rejected defendant’s claim that he
       did not direct his biting at Klean. It explicitly ruled that defendant’s testimony on this point
       was not credible, in large part due to defendant’s intoxication during the incident. Second, it
       addressed defendant’s suggestion that he was minding his own business, lawfully chewing at
       his restraints, when Klean, in the course of interfering, deliberately moved his hand into
       harm’s way. It rejected this on the basis that it could not “see any lawful authority for
       [defendant’s] trying to bite [his] restraints off.”
¶ 21        We need not address the sufficiency of either of these defenses, or of the court’s rejection
       of them, to conclude that neither was self-defense. “A person is justified in the use of force
       against another when and to the extent that he reasonably believes that such conduct is
       necessary to defend himself or another against such other’s imminent use of unlawful force.”
       720 ILCS 5/7-1(a) (West 2014). The defense that defendant’s biting had only an accidental
       effect on Klean is inconsistent with a claim of self-defense, as it precludes defendant’s belief
       that the action was necessary. Likewise, the defense that “Klean basically *** put[ ] his hand
       in the lion’s mouth” had nothing to do with defendant’s perceiving Klean as a threat; rather,
       it was simply an implication that Klean’s action was the reason why his hand ended up in
       proximity to defendant’s teeth. This is the closest that defendant came to arguing
       self-defense, and it is not close at all.
¶ 22        Defendant suggests that self-defense was in fact “raised,” such that the State had to rebut
       it. He implies that this occurred merely because Klean’s testimony contained the “slight
       evidence” that would have entitled him to a self-defense instruction in a jury trial. This
       argument is effectively the same as a claim that—in a case such as this one, in which
       defendant neither had to declare any affirmative defense in discovery nor had to seek jury
       instructions on the defense—the defense was not subject to forfeiture. We hold that the
       defense was subject to forfeiture. It would be one thing if the only issue were whether the
       court needed to consider the defense. As defendant correctly argues, the court is presumed to
       know the law. See, e.g., People v. Mandic, 325 Ill. App. 3d 544, 546 (2001). We thus can
       expect it to consider any defense properly before it. However, “[o]nce an affirmative defense
       is raised, the State has the burden of proving the defendant guilty beyond a reasonable doubt
       as to that issue.” Jeffries, 164 Ill. 2d at 127. Under defendant’s rule, the State would have to
       disprove every affirmative defense of which even “slight evidence” exists or risk a post hoc
       reexamination of the evidence for new potential defenses on appeal.
¶ 23        We end with a procedural note. Because defendant did nothing to raise self-defense in the
       trial court, we have not addressed what he would have needed to do or when he would have
       needed to do it. We leave those questions for another decision. That said, we emphasize that
       the main reason a defendant must specifically raise an affirmative defense is to alert the State
       to what it must rebut. That purpose demands that the defendant raise the defense when the
       State can present further evidence or argument.




                                                    -6-
¶ 24                                      III. CONCLUSION
¶ 25       For the reasons stated, we affirm defendant’s conviction. As part of our judgment, we
       grant the State’s request that defendant be assessed $50 as costs for this appeal. 55 ILCS
       5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).

¶ 26      Affirmed.




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