                            No. 3--08--0233

Filed August 31, 2010
                                IN THE

                      APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2010


THE PEOPLE OF THE STATE OF      )        Appeal from the Circuit Court
ILLINOIS,                       )        of the 10th Judicial Circuit,
                                )        Peoria County, Illinois
     Plaintiff-Appellee,        )
                                )
          v.                    )        No.   07--CF--183
                                )
CHARETTA T. WILSON,             )
                                )        Honorable Stuart P. Borden,
     Defendant-Appellant.       )        Judge, Presiding.



     JUSTICE SCHMIDT delivered the opinion of the court:


     Defendant, Charetta T. Wilson, appeals her conviction for

resisting a peace officer resulting in an injury to the officer.

Specifically, she challenges: (1) the wording of a modified

Illinois pattern jury instruction; and (2) her trial counsel's

effectiveness.

                                 FACTS

     Defendant proceeded to a jury trial on two charges:

resisting a peace officer resulting in an injury to the officer

(720 ILCS 5/31--1(a--7) (West 2006)); and aggravated assault (720
ILCS 5/12--2(a)(6) (West 2006)).       Bradley Scott, a Peoria police

officer, testified that on January 21, 2007, he was dispatched to

a part of Peoria known as Niagra Alley.      He was dressed in a

standard police-issue uniform, and he observed a large crowd

located in the alley.    To make his way through the alley, he

launched pepper balls at the legs and feet of individuals in the

crowd.    He then began assisting another officer, Sergeant Venzon,

with crowd control when a glass bottle flew past the left side of

his body.

       Venzon identified defendant as the person who threw the

bottle.    Scott consequently approached defendant and grabbed her

arm.    Venzon and Scott attempted to pull defendant down the alley

where other officers were located, but she refused to be

handcuffed and did not comply with commands to put her hands

behind her back.    Scott pinned defendant against a wall to

facilitate the handcuffing while another officer, Eric Betts,

provided assistance.    Defendant pushed against the wall and

temporarily broke Scott's grasp of her arm.      Scott then grabbed

defendant's upper arm and forced her to the ground, whereupon she

tried to pull her arms underneath her body to keep from being

handcuffed.    While Scott tried to gain control of defendant's

left arm, defendant "rolled along with the pile" and pinned

                                   2
Scott's arm against the ground.       Ultimately, the officers were

able to handcuff defendant and take her to a police car.       Scott

subsequently received treatment for a sprained wrist at Methodist

Hospital.

     Officer Betts testified that when he arrived at the scene,

he witnessed Scott attempting to arrest defendant, and he helped

get defendant to the ground.   Once on the ground, defendant was

shifting from side to side.    Betts pulled one of defendant's arms

from beneath her body and secured a handcuff to the arm.       Though

he did not remember rolling with defendant or losing his balance,

he did notice Scott grimace.   He then saw someone throw another

bottle that landed near him.   Betts left to pursue the person who

threw the bottle.

     Lashanda Marizetts testified that she and defendant went to

Club 112, which was located in the alley, on January 21, 2007.

Defendant had a cranberry juice and vodka but did not consume any

beer or have any reason to possess a beer bottle.       As the club

was closing, a fight broke out.       Marizetts and defendant began

walking up the alley outside the club when a police officer

grabbed defendant.   Marizetts said the officer threw defendant to

the ground and placed his knee on her back.       The officer then

began striking defendant.

                                  3
     Kecia Wilson, defendant's sister, testified that she was

with defendant and Marizetts at the club on January 21, 2007.

Several fights broke out when the club closed.       Wilson observed

police officers grab defendant, and she testified that the

officers would not tell defendant why they were arresting her.

They took defendant to the ground and began punching her.

Defendant was moving on the ground because the officers were on

her back and pulling her hair.

     Defendant testified that she and some friends went to the

club to celebrate her birthday.       When the club closed, she and

her friends tried to leave, but due to several fights outside

they waited until most of the club's patrons had left.       As they

walked from the club, a police officer grabbed defendant's arm.

Defendant pulled her arm back, and the officer requested that she

get against the wall with her hands behind her back.       When

defendant asked the officer what she had done, the officer threw

her against the wall.   Another officer then helped throw her to

the ground.   Defendant said her hands were at her side and not

behind her back.

     At the jury instruction conference, the State tendered a

modified version of the Illinois pattern jury instruction for

resisting a peace officer.   The modified version added a fourth

                                  4
proposition to which defendant did not object.       The trial court

accepted the instruction as modified.       The instruction read:

               "To sustain a charge of Resisting or

          Obstructing a Peace Officer, the State must

          prove the following propositions:

               First Proposition: That Brad Scott was a

          peace officer; and

               Second Proposition: That the defendant

          knew Brad Scott was a peace officer; and

               Third Proposition: That the defendant

          knowingly resisted or obstructed the

          performance of Brad Scott of an authorized

          act within his official capacity; and

               Fourth Proposition: That the defendant's

          act of resisting was a proximate cause of an

          injury to Brad Scott."       (Emphasis added.)

     At some point during its deliberations, the jury sent a note

to the court inquiring:

          "May the propositions on resisting a peace

          officer be broken down into two separate

          counts.   Can the injury be separated from the

          resisting?"

                                   5
Defense counsel noted: "That's the lesser included offense."    The

court replied: "Obviously, no, you have chosen not to go there.

My answer to this question would be no, you must deliberate based

upon the charges before you."   The State and defense counsel both

expressed satisfaction with that response.

     Ultimately, the jury acquitted defendant on the charge of

aggravated assault but found her guilty of resisting a peace

officer resulting in an injury to the officer.   The trial court

sentenced defendant to 18 months of conditional discharge.     She

appeals.

                              ANALYSIS

     Defendant claims she is entitled to a new trial since she

"was prejudiced when an inaccurate non-pattern jury instruction

was provided to the jury."   Defendant has forfeited this claim.

It is well settled that a defendant forfeits review of any

putative jury instruction error if she does not object to the

instruction or offer any alternative instruction at trial and

does not raise the particular instruction issue in her posttrial

motion.    People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467

(2005).    Defendant concedes she did not object to the instruction

of which she now complains, nor did she raise any issues

questioning its propriety in her posttrial motion.   Nevertheless,

                                  6
defendant asserts that the claimed error "constitutes plain error

and should be reviewed as such."       In the alternative, defendant

asserts that "if the error of failing to properly instruct the

jury is not plain error, it should be reviewed under the standard

for ineffective assistance of counsel."

     There can be no plain error if there was no error at all;

counsel cannot be ineffective for failing to challenge a correct

instruction.    See People v. Johnson, 218 Ill. 2d 125, 842 N.E.2d

714 (2005).    Before we can address defendant's claims of plain

error and ineffective assistance, we must determine whether there

was error in the first place.    See Johnson, 218 Ill. 2d at 139.

     Defendant initially contends that the modified instruction

incorrectly stated the law.   The statutory language for the

charged offense reads:

                 "(a) A person who knowingly resists or

          obstructs the performance by one known to the

          person to be a peace officer or correctional

          institution employee of any authorized act

          within his official capacity commits a Class

          A misdemeanor.

          ***

                 (a--7) A person convicted for a

                                   7
          violation of this Section whose violation was

          the proximate cause of an injury to a peace

          officer is guilty of a Class 4 felony."

          (Emphasis added.)    720 ILCS 5/31--1 (West

          2006).

     Defendant argues that the definite article ("the") in the

statute and the indefinite article ("a") in the jury instruction

have different meanings--"the" being exclusive and "a" being

inclusive.   According to this argument, when the legislature used

the phrase "the proximate cause" in the statute (resisting a

peace officer), it was referring only to the single most

immediate or direct cause.    Therefore, defendant contends, the

use of "a proximate cause" in the modified instruction permitted

a finding of guilt based on a standard lower than the standard

required by statute.

     Our primary objective in construing any statute is to

determine and effectuate the legislature's intent.      Yang v. City

of Chicago, 195 Ill. 2d 96, 745 N.E.2d 541 (2001).      A review of

our legislature's use of the phrase "the proximate cause"     leads

to the inescapable conclusion that it did not intend its use of

the term to equate to the narrow definition argued by defendant.

     The legislature has used the term "proximate cause" in 19

                                  8
statutes.        65 ILCS 5/11---152--1 (West 2008); 215 ILCS 5/4 (West

2008); 605 ILCS 125/20 (West 2008); 625 ILCS 5/6--103 (West

2008); 625 ILCS 5/6--208 (West 2008); 625 ILCS 5/11--501 (West

2008); 625 ILCS 5/11--506 (West 2008); 625 ILCS 5/11--610 (West

2008); 625 ILCS 40/5--7 (West 2008); 625 ILCS 45/5--2 (West

2008); 625 ILCS 45/5--16 (West 2008); 720 ILCS 5/12--21.6 (West

2008); 720 ILCS 5/31--1 (West 2008); 735 ILCS 5/2--623 (West

2008); 735 ILCS 5/2--1107.1 (West 2008); 735 ILCS 5/2--1116 (West

2008); 740 ILCS 180/2 (West 2008); 745 ILCS 10/3--109 (West

2008); 745 ILCS 43/15 (West 2008).                        The phrase "a proximate

cause" appears in 10 of these statutes and "the proximate cause"

appears in 9.           Nowhere within the Illinois Compiled Statutes does

the legislature define "proximate cause," "a proximate cause," or "the proximate cause."

        However, the legislature has used the phrase "more than 50% of the proximate cause" in

at least two instances. (Emphasis added.) In section 2--1107.1 of the Code of Civil Procedure,

the legislature stated that, "[I]f the jury finds that the contributory fault of the plaintiff is more

than 50% of the proximate cause," then the plaintiff is barred from recovery. (Emphasis added.)

735 ILCS 5/2--1107.1 (West 2008). Similarly, in section 2(c)(2) and (2) of the Wrongful Death

Act, the legislature again stated that if a beneficiary on whose behalf an action is brought "is

more than 50% of the proximate cause of the wrongful death of the decedent," then recovery is

barred. (Emphasis added.) 740 ILCS 180/2(c)(2) (West 2008). QUERY: if the legislature


                                                    9
intended "the proximate cause" to mean the "one most immediate" cause, then how can there

ever be less than 100% of "the proximate cause"? If use of the phrase "the proximate cause"

means that there is but one singular cause of an injury, why would the legislature ever use the

phrase "more than 50% of the proximate cause," when to do so would render the phrase self-

contradictory nonsense?

       A definition of proximate cause is, however, contained within Illinois Pattern Jury

Instructions, Civil, No. 15.01 (2009) (hereinafter IPI Civil (2009)), which states:

                  "When I use the expression 'proximate

               cause,' I mean a cause which, in the natural

               and ordinary course of events, produced the

               plaintiff's injury. It need not be the only

               cause, nor the last or nearest cause. It is

               sufficient if it combines with another cause

               resulting in injury." IPI Civil (2009) No. 15.01.

In light of this definition of "proximate cause," changing the article immediately preceding

"proximate cause" from "a" to "the" does not change its definition. It matters not whether one

speaks of "the" proximate cause or "a" proximate cause--the meaning is the same.1 The


       1
           Unlike Justices Holdridge and McDade, I do not find that

the use of the article "the" in front of proximate cause creates

an ambiguity.          This is the reason I did not discuss legislative

                                                 10
definition of the term controls any article preceding it. This reading is consistent with the

legislature's use of the phrase "more than 50% of the proximate cause." 735 ILCS 5/2--1107.1

(West 2008); 740 ILCS 180/2(c)(1), (c)(2) (West 2008).

       Our interpretation of the statute and term finds support in our supreme court's opinion in

People v. Hudson, 222 Ill. 2d 392, 856 N.E.2d 1078 (2006).

                       "In general, Illinois law provides that a defendant may be charged

               with murder pursuant to the 'proximate cause' theory of felony murder.

               People v. Lowery, 178 Ill. 2d 462 (1997). The term 'proximate cause'

               describes two distinct requirements: cause in fact and legal cause. First

               Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999). We

               have stated, 'We believe that the analogies between civil and criminal

               cases in which individuals are injured or killed are so close that the

               principle of proximate cause applies to both classes of cases. Causal

               relation is the universal factor common to all legal liability.' Lowery, 178

               Ill. 2d at 466. Legal cause 'is essentially a question of foreseeability'; the



history.       However, I plead guilty to going beyond what is

necessary in what is perhaps a misguided effort to address

concern of those who might disagree with my conclusion that

changing the article immediately preceding "proximate cause" does

not create an ambiguity.

                                                 11
               relevant inquiry is 'whether the injury is of a type that a reasonable person

               would see as a likely result of his or her conduct.' Galman, 188 Ill. 2d at

               258. Foreseeability is added to the cause-in-fact requirement because

               'even when cause in fact is established, it must be determined that any

               variation between the result intended *** and the result actually achieved

               is not so extraordinary that it would be unfair to hold the defendant

               responsible for the actual result.' 1 W. LaFave, Substantive Criminal Law

               §6.4, at 464 (2d ed. 2003). Although foreseeability is a necessary

               component of a proximate cause analysis, it need not be specifically

               mentioned in a jury instruction to communicate the idea of 'proximate' to a

               jury. Thus, the IPI civil jury instruction communicates the definition of

               'proximate cause,' as '[any] cause which, in natural or probable sequence,

               produced the injury complained of. [It need not be the only cause, nor the

               last or nearest cause. It is sufficient if it concurs with some other cause

               acting at the same time, which in combination with it, causes the injury.]'

               Illinois Pattern Jury Instructions, Civil, No. 15.01 (2005)." Hudson, 222

               Ill. 2d at 401-02.

       Defendant invites us to equate "the proximate cause" with "sole proximate cause." We

must respectfully decline the invitation. Our jurisprudence recognizes the principle of "sole

proximate cause" and instructs a jury that "if you decide that the sole proximate cause of injury to


                                                 12
the plaintiff was the conduct of some person other than the defendant, than your verdict should

be for the defendant." IPI Civil (2008) No. 12.04. Adding the adjective "sole" to the phrase is

quite different from simply changing the preceding article from "a" to "the."

          The modified instruction at issue contained an accurate statement of the law.

Accordingly, there was no error, let alone plain error. As defendant has not met her burden of

establishing plain error, we must honor her procedural default. People v. Hillier, 237 Ill. 2d 539,

545-48 (2010).

          With respect to the ineffective assistance of counsel issue, failure to object to proper

conduct cannot render counsel constitutionally ineffective. Johnson, 218 Ill. 2d at 139.

                                            CONCLUSION

          For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

          Affirmed.

          PRESIDING JUSTICE HOLDRIDGE, specially concurring:

          Our primary objective in construing a statute is to determine and effectuate the

legislature's intent. Yang v. City of Chicago, 195 Ill. 2d 96 (2001). This effort begins with an

examination of the statutory language. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d

262 (1998). If the statutory language is ambiguous, we may examine the legislative history.

Country Mutual Insurance Co. v. Teachers Insurance Co., 195 Ill. 2d 322 (2001). A statute is

ambiguous if it is capable of more than one reasonable interpretation. In re B.C., 176 Ill. 2d 536

(1997).

          The parties' arguments, and the observations made in the order of this court, demonstrate
that the disputed language from the resisting-a-peace-officer statute is ambiguous. While it is

possible that the legislature intended the definite article ("the") to signal an exclusive sort of

proximate cause, it is also possible that the legislature intended no such exclusion--allowing

more than the single most immediate or direct cause. Consequently, it is proper to look to the

legislative history for guidance.

       When the disputed language was being considered on the Senate floor, Senator Petka

explained that "it raises the offense of resisting arrest to a Class 4 felony in circumstances where

a peace officer suffers harm as a proximate result of the arrest." 92d Ill. Gen. Assem., Senate

Proceedings, April 3, 2002, at 115 (statement of Senator Petka). Later, the following colloquy

occurred:

       "SENATOR CULLERTON:

               Senator, for the purposes, I guess, of legislative intent, there's an

       amendment that we put on the bill that says a person convicted for a violation of

       this Section whose violation was the proximate cause of an injury to a peace

       officer is guilty of a Class 4 felony. Could you describe how the -- what the

       burden of proof would be, who it would be on and what is the burden of proof in

       order for the State to -- to prove that Section?

       PRESIDING OFFICER: (SENATOR WATSON)

               Senator Petka.

       SENATOR PETKA:


                                                  14
       First of all, thank you for -- asking that question. The burden of proof will

be on the State. It'll be a burden of proof beyond all reasonable doubt. The -- I

envision a jury instruction which would hold that the individual to be found guilty

of the offense must be found guilty beyond all reasonable doubt and must prove

that the injury was proximately related to the action.

PRESIDING OFFICER: (SENATOR WATSON)

       Further discussion. Senator Molaro?

SENATOR MOLARO:

       Thank you, Mr. President. Would the sponsor yield for a question?

PRESIDING OFFICER: (SENATOR WATSON)

       Sponsor indicates he'll yield, Senator Molaro.

SENATOR MOLARO:

       For the crime of resisting arrest, where is that classified? Is that a Class A

misdemeanor or is that a Class 1 felony, or what is resisting arrest?

PRESIDING OFFICER: (SENATOR WATSON)

       Senator Petka.

SENATOR PETKA:

       Resisting arrest will remain a Class A misdemeanor, Senator. In those

circumstances where a peace officer in effectuating an arrest is injured as a result

of that arrest, such as situations where there's a struggle for placing the handcuffs


                                         15
          on or it's just a struggle in apprehending the individual who is running, the peace

          officer suffers great bodily harm, under those circumstances, the -- the charge can

          be upgraded to a felony." 92d Ill. Gen. Assem., Senate Proceedings, April 4,

          2002, at 87-89 (statements of Senators Cullerton, Petka & Molaro)..

          This language indicates that the legislature did not attach exclusive significance to the

definite article in the phrase "the proximate cause." Rather, the legislature simply meant

"proximate cause." As Senator Petka (the sponsor) explained, the State must prove that the

officer's injury was "proximately related" to the defendant's resistance or occurred "as a result" of

making the arrest. Senator Petka explicitly used the phrase "a proximate result," and the bill

passed with his explanation.

          In light of this meaning, the modified instruction at issue contained an accurate statement

of the law. Accordingly, I would find no reversible error and I agree with the result of this court's

disposition.

          JUSTICE McDADE, specially concurring:

          While I concur in the majority’s decision affirming defendant’s conviction for resisting a

peace officer resulting in an injury to the officer, I write separately to voice my concerns with this

result.

          On appeal, defendant calls our attention to the fact that the modified version of IPI

Criminal 4th No. 22.14, which was tendered to the jury, only required the jury to find that

defendant’s act of resisting was “a proximate cause” and not “the proximate cause” of Officer


                                                   16
Scott’s injury. As the majority has correctly pointed out, the statutory language for the charged

offense reads: “the proximate cause.” See 720 ILCS 5/31-1 (West 2006).

       Recently, the supreme court in People v. Brown, 229 Ill. 2d 374, 382-83 892 N.E.2d

1034, 1041 (2008) stated:

               “When interpreting a statute, our primary objective is to ascertain

               and give effect to the intent of the legislature. [Citation.]

               Legislative intent is determined by considering the language of the

               statute, given its plain and ordinary meaning, as well as the purpose

               and necessity for the law, the evils sought to be remedied, and

               goals to be achieved. [Citation.] Each word, clause and sentence

               of the statute must be given reasonable meaning and not rendered

               superfluous, and we presume the General Assembly did not intend

               absurdity, inconvenience, or injustice. [Citation.]”

       Section 31-1 expressly requires that the State establish that defendant’s act of resisting

was “the proximate cause” of Officer Scott’s injury. See 720 ILCS 5/31-1(a-7) (West 2006).

Thus, the gravamen of this appeal revolves around the question of whether the modified version

of IPI Criminal 4th No. 22.14, which substituted the indefinite article “a” for the definite article

“the,” constitutes plain error. While Justice Schmidt and Justice Holdridge ultimately do not

apply any plain error analysis due to the fact that they each find the absence of error all together,

both apparently find that section 31-1 is ambiguous. Specifically, Justice Schmidt appears to


                                                 17
find ambiguity in light of the fact that he cites 19 other statutes in an attempt to define the term

“proximate cause.” Slip op. at 8. If section 31-1 were indeed unambiguous it would be

unnecessary and inappropriate to resort to sources outside the plain language of the statute. See

People v. Algarin, 200 Ill. App. 3d 740, 747, 558 N.E.2d 457, 461 (1990).2

        Justice Holdridge expressly finds section 31-1 to be ambiguous and proceeds to examine

the statute’s legislative history. I too find section 31-1 to be ambiguous.

        After careful review of these outside sources, I acknowledge that an argument can be

made that the legislature did not attach exclusive significance to the definite article in the phrase

“the proximate cause.” My concurrence with the majority’s decision is based solely upon this


        2
            Justice Schmidt has, however, dropped a footnote asserting that he finds the statute

unambiguous. It is legally incorrect to cite and discuss outside sources where the statute in

question is itself unambiguous. People v. Nunez, 236 Ill. 2d 488, 495, 925 N.E.2d 1083, 1087

(2010) ("When the statutory language is clear and unambiguous, it is unnecessary to resort to

other aids of interpretation."); Solon v. Midwest Medical Records Ass’n., 236 Ill. 2d 433, 440,

925 N.E. 2d 1113, 1117 (2010) ("When the statutory language is clear and unambiguous, it must

be applied as written, without resort to extrinsic aids of statutory construction"); In re J.L. 236 Ill.

2d 329, 339-340, 924 N.E.2d 961, 966 (2010) ("Where the statutory language is clear and

unambiguous, it will be given effect as written, without resort to other aids of construction.")

Justice Schmidt has elected to "plead guilty" to violating this canon of statutory construction

rather than conform the decision to the rule.

                                                   18
acknowledgment and the fact that we are charged with ascertaining the legislature’s ambiguous

intent.

          I am left troubled, however, because a principle of statutory construction is that “ ‘the

definite article “the” particularizes the subject which it precedes. It is a word of limitation as

opposed to the indefinite or generalizing force of “a” or “an.” ’ ” (Emphasis in original.)

Sibenaller v. Milschewski, 379 Ill. App. 3d 717, 722, 884 N.E.2d 1215, 1219 (2008), quoting

Brooks v. Zabka, 168 Colo. 265, 269, 450 P.2d 653, 655 (1969). Applying this principle, a

compelling argument can be made that the legislature’s use of the language “the proximate

cause” illustrates an intent to focus on the one most immediate, efficient, and direct cause

preceding an injury. See Robinson v. City of Detroit, 462 Mich. 439, 459-60, 613 N.W.2d 307,

317 (2000). Alternatively, the language “a proximate cause” merely requires that the State

establish that the accused’s actions were a contributing cause of the victim’s injuries. People v.

Merritt, 343 Ill. App. 3d 442, 448, 797 N.E.2d 1103, 1107 (2003) (Holding “[a] person commits

aggravated DUI when his or her driving under the influence ‘was a proximate cause of the

injuries’ *** [citation], not the sole and immediate cause of the victim’s injuries” (emphasis

omitted)).

          Moreover, because section 31-1 is susceptible to two reasonable and conflicting

interpretations, I am concerned that our holding violates the rule of lenity. The supreme court in

People v. Perry, 224 Ill. 2d 312, 333, 864 N.E.2d 196, 210 (2007), expressly stated:

                 “ ‘[P]enal statutes, where ambiguous, should be construed to afford


                                                   19
                lenity to the accused.’ [Citation.] In such a circumstance, the

                penal statute must be strictly construed in favor of the accused,

                with nothing taken by intendment or implication beyond the

                obvious or literal meaning of the statute. [Citation.]”

        While I am wary of ignoring the rule of lenity simply on the basis of other irrelevant

statutes and Senator Petka’s sparse statement that the State must prove that the officer’s injury

was “proximately related” to the defendant’s resistance (92 Ill. Gen. Assem., Senate Proceedings,

April 4, 2002, at 87-89), I acknowledge that we ultimately do in fact look to the legislative

history of a statute when attempting to ascertain its intent. See In re Detention of Powell, 217 Ill.

2d 123, 135, 839 N.E.2d 1008, 1015 (2005). It is my sincere hope, however, that the legislature

takes the opportunity in the future to clarify its intent so that other important cases like this one,

where an individual’s conviction is being enhanced from a misdemeanor to a felony, are not

determined on the basis of a senator’s two-word utterance.




                                                  20
