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                              Appellate Court                           Date: 2017.10.19
                                                                        14:28:38 -05'00'




                  People v. Goodwin, 2017 IL App (5th) 140432



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           BONITA D. GOODWIN, Defendant-Appellant.



District & No.    Fifth District
                  Docket No. 5-14-0432



Filed             August 17, 2017



Decision Under    Appeal from the Circuit Court of Shelby County, No. 14-CF-48; the
Review            Hon. Kimberly G. Koester, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Ellen J. Curry, and Eun Sun Nam, of State
Appeal            Appellate Defender’s Office, of Mt. Vernon, for appellant.

                  Gina Vonderheide, State’s Attorney, of Shelbyville (Patrick Delfino,
                  David J. Robinson, and Kelly M. Stacey, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             PRESIDING JUSTICE MOORE delivered the judgment of the court,
                  with opinion.
                  Justices Chapman and Overstreet concurred in the judgment and
                  opinion.
                                              OPINION

¶1       The defendant, Bonita D. Goodwin, appeals her conviction, following a trial by jury in the
     circuit court of Shelby County, for the offense of threatening a public official. For the
     following reasons, we reverse.

¶2                                               FACTS
¶3       The facts necessary to our disposition of this appeal follow. On May 7, 2014, the defendant
     was charged, by information, with one Class 3 felony count of threatening a public official
     because, on that same date, she had allegedly “knowingly and willfully conveyed to
     corrections officer Tonya Atteberry, of the Shelby County Sheriff’s Department, Illinois, a
     public official, a communication threatening ‘...I’m thinking about killing you. I could go out
     to your house with a gun and you couldn’t do anything about it.’ ” The information further
     alleged that the threat placed Atteberry “in reasonable apprehension of immediate or future
     bodily harm.” The defendant was also charged, in a separate case that was tried with this case
     but not appealed herewith, with one Class A misdemeanor count of resisting a peace officer (of
     which she was convicted) and one Class B misdemeanor count of unlawful possession of
     cannabis (of which she was acquitted).
¶4       The defendant subsequently invoked her speedy trial rights, and the charges culminated in
     a jury trial that began on June 16, 2014. We will discuss only the testimony relevant to the issue
     dispositive of this appeal. Brian Litteral testified that he was a deputy sheriff with the Shelby
     County sheriff’s office. He testified that at approximately 2 a.m. on May 7, 2014, he pulled
     over a Dodge pickup truck because the truck had no rear registration light. The defendant was
     a passenger in the truck. Deputy Litteral testified that the defendant was “fidgeting” and “kind
     of nervous” when he began asking questions of her and the driver. When he asked the driver
     for permission to search the truck, the defendant told the driver not to grant permission.
     Because the defendant was trying to distract the driver, Deputy Litteral asked the driver to exit
     the truck and speak to him outside, which she did. He testified that he informed the driver that
     she could either grant permission to search the truck or deny permission and that the driver
     granted permission. He testified that another deputy sheriff, Deputy Washburn, asked the
     defendant to exit the vehicle, which she did, and Deputy Litteral then began to search the
     vehicle. Subsequently, the defendant became agitated, and Deputy Litteral suspended his
     search to deal with her. Deputy Washburn took over the search and ultimately found a
     substance that he believed was marijuana in the truck, and Deputy Litteral informed the
     defendant that she was going to be arrested for possession of marijuana.
¶5       Deputy Litteral testified that when he attempted to handcuff the defendant, she pulled her
     arm away in a jerking motion. After he and another deputy, Deputy Lustig, secured the
     defendant, she continued to act in an agitated manner, threatening to spit on Deputy Litteral.
     When she was placed in Deputy Litteral’s squad car, the defendant was “threatening” and
     “yelling.” When they arrived at the jail, the defendant was still “resisting” and began “making
     a major commotion within the jail.” Deputy Litteral testified that corrections officer Atteberry
     attempted “multiple times” to book the defendant into the jail but that the process “had to be
     postponed” because of the defendant’s continuing belligerent behavior. He testified that at
     approximately 6 a.m., he, Deputy Washburn, and “C.O. Atteberry” were present while “C.O.
     Atteberry” asked the defendant routine booking questions. When “C.O. Atteberry” asked the

                                                 -2-
     defendant if the defendant was “considering hurting herself or killing herself,” the defendant
     stated, “ ‘No. I’m thinking about killing you,’ ” then added, “ ‘I can show up at your house
     with a gun and you can’t do anything about it.’ ” Deputy Litteral testified that “C.O. Atteberry”
     then turned and asked him “if that would qualify for threatening a public official,” and he
     responded that he believed it would. The booking process was again halted, and the defendant
     was placed back in a holding cell.
¶6       Jacob Washburn testified that he was 23 years old and had been employed as a deputy with
     the Shelby County sheriff’s office for approximately two years. He testified that when he
     arrived at the scene of Deputy Litteral’s traffic stop of the truck in which the defendant was a
     passenger, he approached the truck from the rear on the passenger side and could hear the
     defendant becoming “angry” with the driver after the driver said it was okay for the deputies to
     search the truck. He testified that, while he subsequently searched the truck, he “heard
     somewhat of a ruckus,” looked up, and saw Deputy Litteral holding the defendant and asked
     Deputy Litteral if everything was okay. Deputy Litteral told him it was, and Deputy Washburn
     continued with his search, ultimately discovering “suspected cannabis.” He testified that the
     defendant was “screaming” at the deputies and “becoming belligerent.” Deputy Washburn
     observed the defendant trying to pull away from Deputy Litteral before Deputy Litteral and
     Deputy Lustig secured her.
¶7       Deputy Washburn testified that at approximately 6 a.m., he was present with Deputy
     Litteral when Atteberry attempted to process the defendant into the jail. He testified that “Ms.
     Atteberry was asking her if she felt like hurting herself or killing herself,” to which the
     defendant responded, “ ‘No, but I am thinking about killing you. And I could show up to your
     house with a gun and there’s nothing you could do about it.’ ” He testified that “Ms. Atteberry
     asked us if she [sic] felt like that was a threat to us, and I stated, ‘Yeah,’ that I felt like it was a
     threat.” The booking process was discontinued, and the defendant was returned to her holding
     cell.
¶8       Dustin Lustig testified that he was a deputy with the Shelby County sheriff’s office. He
     testified that when he arrived at the scene of Deputy Litteral’s traffic stop of the truck in which
     the defendant was a passenger, he stood behind the truck, with the driver, while the truck was
     searched. He testified that Deputy Washburn “located drug paraphernalia” in the truck. He
     testified that he tried to calm the defendant, who was “very upset.” When the defendant
     attempted to pull away from Deputy Litteral, who was preparing to arrest her, Deputy Lustig
     helped Deputy Litteral secure the defendant, who “continued to fight.” After the defendant was
     taken away, he stayed behind to “clear the scene” of the traffic stop, then proceeded to the jail.
¶9       Tonya Atteberry testified next. When asked what her occupation was, she stated, “I’m a
     correctional officer at the Shelby County Detention Center.” She testified that when the
     defendant was brought to the detention center at about 2:30 a.m., Atteberry “went out to the
     garage” because she had been told that help would be needed with the defendant. She testified
     that she “had went [sic] out to the garage when the deputy pulled up with [the defendant]” and
     helped “assist” the defendant into the jail. She testified that the defendant was not cooperative
     with the booking process, which had to be halted. At approximately 6 a.m., she again
     attempted to book the defendant and “got about halfway through” before the defendant
     threatened her. Atteberry testified that during the process, the defendant was “very sarcastic.”
     When Atteberry asked the defendant whether the defendant was thinking of hurting or killing
     herself, the defendant replied, “ ‘No. I’m thinking about killing you.’ ” Atteberry testified that

                                                    -3-
       she then turned to “my deputies” and asked if that was threatening a public official; one deputy
       responded that it was. Atteberry testified that she then turned back to the defendant, who
       “proceeded to say, ‘I could drive out to your house with a gun and there’s nothing you could do
       about it.’ ” Atteberry testified that she then halted the booking process. She testified that she
       had never been threatened before. She conceded on cross-examination that she did not take any
       additional steps to protect herself afterward; however, on redirect examination, she testified
       that she took the threat seriously.
¶ 10        Following Atteberry’s testimony, the State rested, and outside the presence of the jury, the
       defendant moved for a directed verdict. In support thereof, defense counsel argued, with regard
       to the count charging threatening a public official, that the plain language of the statute under
       which the count was brought required the State to prove that Atteberry was “a sworn law
       enforcement or peace officer.” Defense counsel contended:
                “There has been no evidence presented, nor could there be, that Tonya Atteberry is a
                public official. The only thing presented at all was that she is employed by the sheriff’s
                department as a correctional officer.”
       Defense counsel cited two cases from the appellate court in support of his position: People v.
       Muniz, 354 Ill. App. 3d 392 (2004), and People v. Carrie, 358 Ill. App. 3d 805 (2005). In
       response, the State cited another appellate court case, People v. Hale, 2012 IL App (4th)
       100949.
¶ 11        Following a brief recess, the trial judge ruled that under the statute, which had been
       amended since the Carrie case was decided, Atteberry qualified as a public official.
       Accordingly, the trial judge denied the defendant’s motion for a directed verdict. Defense
       counsel requested time to do additional research on the issue, but the trial judge declined,
       stating that, under Hale, Atteberry was a public official because the trial judge believed that
       “the Hale case does set the precedence [sic] that a correctional officer is in fact a public
       official.” She added, “This does go to what we’re going to need to do specifically in the jury
       instructions.” The defense then rested, and a jury instruction conference followed. Closing
       arguments were delivered the following morning, and then the trial judge instructed the jury,
       telling the jurors, inter alia, that “[a] person holding the position of a corrections officer is a
       public official.”
¶ 12        The jury deliberated for approximately 40 minutes before returning with its verdicts. The
       defendant was convicted of threatening a public official and of resisting a peace officer but was
       acquitted of unlawful possession of cannabis. Following a sentencing hearing, she was
       sentenced. With regard to the felony conviction for threatening a public official, she was
       sentenced to 24 months of probation, 230 days in the county jail—which amounted to no
       additional jail time once she received all applicable credit for time served prior to trial—and
       various costs, fees, and fines. With regard to the conviction for misdemeanor resisting a peace
       officer, which stemmed from pulling her arm away when Deputy Litteral attempted to arrest
       her, the defendant was sentenced to 230 days in the county jail—which likewise amounted to
       no additional jail time once she received all applicable credit for time served prior to trial—and
       court costs. As noted above, the misdemeanor conviction and sentence were not appealed
       herewith and are not before this court in this case. With regard to the felony conviction for
       threatening a public official, this appeal was timely filed.



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¶ 13                                            ANALYSIS
¶ 14       On appeal, the defendant contends, inter alia, that her conviction for the offense of
       threatening a public official must be reversed because the State failed to adduce adequate
       evidence, as required by the applicable statute, that Atteberry was a public official. We agree.
       It is undisputed—indeed, it is axiomatic—that the State, with its ability to commence a
       criminal prosecution that may deprive an individual of his or her personal liberty, and/or other
       fundamental interests, possesses “great power and resources.” People v. Iozzo, 195 Ill. App. 3d
       1078, 1084 (1990); see also, e.g., People v. Moore, 279 Ill. App. 3d 152, 156 (1996). It is
       equally undisputed and axiomatic that, because of its possession of such great power and
       resources, when the State commences a criminal prosecution by charging a defendant with an
       offense of the State’s choosing, due process demands that the State bear the burden of proving,
       beyond a reasonable doubt, all of the elements of the offense the State has chosen to charge.
       See, e.g., People v. Cameron, 2012 IL App (3d) 110020, ¶ 27. The burden of proof remains
       with the State throughout the defendant’s trial, never shifting to the defendant. See, e.g., id.
       Until convicted, a defendant is presumed innocent and has no obligation to prove his or her
       innocence, testify, or present evidence. See, e.g., id. Indeed, as the Supreme Court of Illinois
       has recognized, “[t]he due process clause of the fourteenth amendment to the United States
       Constitution requires that a person may not be convicted in state court ‘except upon proof
       beyond a reasonable doubt of every fact necessary to constitute the crime with which [the
       person] was charged.’ ” People v. Cunningham, 212 Ill. 2d 274, 278 (2004) (quoting In re
       Winship, 397 U.S. 358, 364 (1970)). Accordingly, to safeguard this due process right, when
       this court reviews a case wherein a defendant has alleged that the evidence was not sufficient to
       convict the defendant, this court must ask whether, after viewing the evidence adduced at trial
       in the light most favorable to the prosecution, any rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt. Id. at 278-79; see also, e.g., People
       v. Cooper, 194 Ill. 2d 419, 430-31 (2000).1 We turn, then, to the criminal offense charged by
       the State in this case, which contains the essential elements the State was required to prove to
       obtain a conviction thereunder.
¶ 15       Section 12-9 of the Criminal Code of 2012 (720 ILCS 5/12-9 (West 2014)) criminalizes the
       threatening of public officials and human service providers. Section 12-9(b)(1) states that for
       purposes thereof, a “public official” is:
               “a person who is elected to office in accordance with a statute or who is appointed to an
               office which is established, and the qualifications and duties of which are prescribed,
               by statute, to discharge a public duty for the State or any of its political subdivisions or
               in the case of an elective office any person who has filed the required documents for
               nomination or election to such office. ‘Public official’ includes a duly appointed
               assistant State’s Attorney, assistant Attorney General, or Appellate Prosecutor; a sworn
               law enforcement or peace officer; a social worker, caseworker, or investigator
           1
            In addition to directly challenging the sufficiency of the evidence, the defendant intermingles her
       argument with the claim that the trial judge erred when she denied the defendant’s motion for a directed
       verdict. The standard of review for this intermingled claim is the same (see, e.g., People v. Schronski,
       2014 IL App (3d) 120574, ¶ 19 (“In reviewing defendant’s challenge to the trial court’s denial of her
       motion for a directed verdict, we must determine whether the evidence presented by the prosecution,
       viewed in the light most favorable to the prosecution, established defendant’s guilt beyond a reasonable
       doubt.”)), and we shall address both claims concurrently.

                                                      -5-
                employed by the Department of Healthcare and Family Services, the Department of
                Human Services, or the Department of Children and Family Services.” 720 ILCS
                5/12-9(b)(1) (West 2014).
       We note as well that section 12-9(a-5) requires that if the threat is to “a sworn law enforcement
       officer, the threat must contain specific facts indicative of a unique threat to the person, family
       or property of the officer and not a generalized threat of harm.” 720 ILCS 5/12-9(a-5) (West
       2014).
¶ 16        On appeal, the State contends, and the defendant agrees, that “the Committee Notes for IPI,
       Criminal 11.49A apportion the definition of public official into two factors,” the first, in this
       case, being a determination by the trial judge of whether a correctional officer is a public
       official and the second being a determination by the jury of whether Atteberry was a
       correctional officer and, therefore, a public official. The parties base their agreement on the
       committee’s statement, with regard to the above-quoted definition in section 12-9(b)(1) of
       “public official,” that “[t]he Committee concluded that the nature of the office is a question of
       law to be decided by the court; whether the person allegedly threatened was such a public
       official is a question of fact for the jury.” Illinois Pattern Jury Instructions, Criminal, No.
       11.49A, Committee Note (approved May 2, 2014). Accordingly, the State urges this court to
       conduct a de novo review of, and then affirm, the trial judge’s threshold determination that
       pursuant to People v. Hale, 2012 IL App (4th) 100949, “[a] person holding the position of a
       corrections officer is a public official,” as well as the trial judge’s subsequent jury instruction
       to that effect.
¶ 17        Section 12-9(b)(1), quoted above in its entirety, consists of two sentences. The first
       sentence refers to elected or appointed offices that must be established, according to the plain
       language of the definition, “to discharge a public duty for the State or any of its political
       subdivisions.” 720 ILCS 5/12-9(b)(1) (West 2014). The second sentence lists officials—a duly
       appointed assistant State’s Attorney, assistant Attorney General, or Appellate Prosecutor; a
       sworn law enforcement or peace officer; a social worker, caseworker, or investigator employed
       by the Department of Healthcare and Family Services, the Department of Human Services, or
       the Department of Children and Family Services—who by their specific inclusion in the statute
       are deemed public officials. Id. The State does not argue in this appeal that the “office” of
       correctional officer is an elected or appointed office established “to discharge a public duty for
       the State or any of its political subdivisions.” Accordingly, the State has forfeited consideration
       of such an argument. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument must contain the
       contentions of the appellant, the reasons therefor, and the citation of authorities; points not
       argued in an opening brief are forfeited and shall not be raised in the reply brief, in oral
       argument, or in a petition for a rehearing). Even if the State had not forfeited consideration of
       such an argument, the argument would be unavailing because, in our previous decision in
       People v. Carrie, 358 Ill. App. 3d 805, 809-11 (2005), we examined the language of the first
       sentence of section 12-9(b)(1) (which was exactly the same both before and after the most
       recent amendments to the statute) and concluded that under it, inter alia, in the absence of a
       statute or ordinance expressly creating the office of county correctional officer in a particular
       county, a county correctional officer in that county could not qualify as a public official for
       purposes of the statute. Thus, the State’s forfeiture with regard to any argument pursuant to the
       first sentence of section 12-9(b)(1) notwithstanding, to the extent Atteberry could qualify as a
       public official under the statute, it would have to be as a “sworn law enforcement or peace

                                                    -6-
       officer” (language that was added to the statute after Carrie was decided) because it is
       undisputed that she is not one of the other specifically-listed officials and it is undisputed that
       no evidence was presented regarding a statute or ordinance expressly creating the office of
       Shelby County correctional officer. Therefore, to the extent the trial judge in this case needed
       to make a threshold determination regarding the “nature of the office” at issue, the
       determination to be made was whether a correctional officer is a sworn law enforcement or
       peace officer.
¶ 18       In support of its proposition that the trial judge did not err in this case, the State contends
       that in People v. Hale, 2012 IL App (4th) 100949, our colleagues in the Fourth District held
       that, for purposes of section 12-9, a correctional officer employed by a county sheriff’s
       department is always a public official. In Hale, our colleagues noted that the alleged public
       official, Brian Doellman, “testified he worked as a correctional officer with the Adams County
       sheriff’s department.” Id. ¶ 5. However, the issue with regard to section 12-9 that was actually
       decided by the court in Hale was whether the jury was properly instructed about section 12-9’s
       requirement that if the threat is to a sworn law enforcement officer, the threat must contain
       specific facts indicative of a unique threat to the person, family, or property of the officer and
       not a generalized threat of harm. Id. ¶¶ 16-26. The issue the Hale court decided was not, as it is
       in this case, whether a correctional officer employed by a county sheriff’s department is a
       public official or whether the State presented adequate evidence that the recipient of the threat
       was a public official. Accordingly, there is no reason to believe the Hale court was ever asked
       to address those issues, and we simply do not know what other facts were contained in the
       record in Hale about Doellman’s status; indeed, as the defendant points out, Doellman, or
       another witness, may have testified that Doellman was a sworn law enforcement officer, but
       the Hale court may have declined to include that testimony in its decision because it deemed
       the testimony irrelevant to the issue raised on appeal by the defendant in Hale. Accordingly,
       Hale is not apposite to the issue before us.
¶ 19       Moreover, the possibility of additional, uncited testimony from Doellman or others about
       Doellman’s sworn or unsworn status notwithstanding, we note that, although the Hale court at
       times repeatedly cited with accuracy the requirement of section 12-9(b)(1) that the threat in
       question be made against, inter alia, a “sworn law enforcement or peace officer” (720 ILCS
       5/12-9(b)(1) (West 2008); see also Hale, 2012 IL App (4th) 100949, ¶¶ 20-21, 23-24), when it
       ultimately presented its analysis of the facts before it, the Hale court nevertheless reasoned,
       “Officer Doellman was an employee of the Adams County sheriff’s department. Thus, he was
       a law-enforcement officer and thereby a ‘public official.’ ” Hale, 2012 IL App (4th) 100949,
       ¶ 21. The fact that the Hale court failed to include the adjective “sworn” to modify law
       enforcement officer when analyzing Doellman’s status—despite the inclusion by the General
       Assembly of “sworn” in the statute—and failed to analyze the implications of the distinction
       between a “sworn law enforcement or peace officer” and a sheriff’s department employee who
       is unsworn but acting in a correctional officer capacity, casts doubt on the soundness of Hale
       and the appropriateness of using it to help decide the issue before us.
¶ 20       As the defendant points out, this court has recognized that in some Illinois counties,
       sheriff’s department employees working as correctional officers may be sworn deputies—who
       are sworn law enforcement officers—assigned to work in the jail division of the sheriff’s
       department. See, e.g., Gibbs v. Madison County Sheriff’s Department, 326 Ill. App. 3d 473,
       478-79 (2001); see also County of Du Page v. Illinois Labor Relations Board, State Panel, 395

                                                    -7-
       Ill. App. 3d 49, 51 (2009) (no distinction between sworn deputies working in various bureaus
       of the Du Page County sheriff’s department). However, in other counties, sheriff’s department
       employees working as correctional officers may be unsworn, civilian correctional officers.
       See, e.g., People v. De Filippo, 387 Ill. App. 3d 322, 327-28 (2008) (Lake County); see also
       County of Du Page, 395 Ill. App. 3d at 57, 59 (corrections bureau of Du Page County sheriff’s
       department consists of both sworn deputies and civilian employees; civilian employees in
       Receiving and Discharge area wear civilian uniforms and cannot enforce the law). Moreover,
       in some counties, the status of a sheriff’s department employee can change, depending upon
       whether that employee is serving in a sworn deputy sheriff capacity (such as part of a patrol
       unit) or in a unsworn correctional officer capacity, and the badge that employee wears will
       change accordingly, with deputies wearing a five-pointed star, and jailers wearing a
       six-pointed star. De Filippo, 387 Ill. App. 3d at 327-28.
¶ 21        In this case, there were a number of offenses with which the State could have charged the
       defendant as a result of her behavior toward Atteberry. The State chose to charge the felony
       offense of threatening a public official. Therefore, it was incumbent upon the State to prove,
       inter alia, that Atteberry met the General Assembly’s statutory definition of a public official
       for purposes of that offense. Although the General Assembly could have listed “correctional
       officer” within its definition, or could have used the arguably-encompassing term “law
       enforcement or peace officer” rather than “sworn law enforcement or peace officer,” it did not
       do so. Thus, we conclude that the trial judge erred in her threshold determination that in all
       cases a person holding the position of a correctional officer is a public official as well as in her
       subsequent jury instruction to that effect. She also erred when she denied the defendant’s
       motion for a directed verdict.
¶ 22        We reiterate that the burden of proof in this case began, and remained, with the State. See,
       e.g., People v. Cameron, 2012 IL App (3d) 110020, ¶ 27. With regard to shouldering its burden
       of proof in this case, the evidence the State chose to adduce at trial with regard to whether
       Tonya Atteberry was a public official consisted, in its entirety, of Atteberry’s testimony,
       adduced when she was asked what her occupation was, that “I’m a correctional officer at the
       Shelby County Detention Center.” Atteberry did not testify that she was a sworn law
       enforcement or peace officer with the Shelby County sheriff’s office. In fact, she did not even
       testify that the Shelby County sheriff’s office was her employer, 2 which would have at least
       allowed the trial judge and the jury to eliminate the possibility that she was employed by
       another county entity or by a nonpublic entity such as a private corrections contractor. She did
       not testify about what, if any, education and training she received to become “a correctional
       officer at the Shelby County Detention Center.” Although she at times referred to other
       individuals as deputies, she did not use any term that could have led the trial judge or the jury to
       reasonably conclude that she too was a deputy (and therefore a sworn law enforcement
       officer), such as, for example, referring to the deputies as her “fellow deputies.” Moreover, no
       other witness provided any testimony about whether Tonya Atteberry was a sworn law
       enforcement or peace officer, and therefore a public official, or about who her employer was;
           2
            Defense counsel misstated the evidence when he argued, in his motion for a directed verdict, that
       “[t]he only thing presented at all was that [Atteberry] is employed by the sheriff’s department as a
       correctional officer.” In fact, as noted elsewhere in this decision, the entirety of her testimony was that
       she was “a correctional officer at the Shelby County Detention Center,” which obviously does not
       include testimony as to who employed her.

                                                       -8-
       nor was any foundation presented that would have supported such testimony had it been
       adduced. None of the three deputies who testified referred to Atteberry as a deputy: one
       referred to her as “C.O. Atteberry” and the other referred to her as “Ms. Atteberry.”
¶ 23       In short, even when the scant evidence the State chose to present at trial to support the
       charge it chose to bring is viewed very liberally, in the light most favorable to the prosecution,
       we must conclude that no rational judge or jury could have found, beyond a reasonable doubt,
       that Tonya Atteberry was a public official as required by the statute. Although it had every
       opportunity to attempt to do so, the State simply did not adduce sufficient evidence to allow a
       rational trier of fact to convict the defendant of threatening a public official, and we therefore
       reverse that conviction.
¶ 24       Because we reverse the defendant’s conviction, we must consider whether principles of
       double jeopardy bar further proceedings on remand. The United States Supreme Court has
       held:
                    “The Double Jeopardy Clause forbids a second trial for the purpose of affording the
               prosecution another opportunity to supply evidence which it failed to muster in the first
               proceeding. This is central to the objective of the prohibition against successive trials.”
               Burks v. United States, 437 U.S. 1, 11 (1978).
       Accordingly, because the evidence adduced by the State at the defendant’s first trial, in support
       of the charge it chose to pursue against her, was not sufficient to convict the defendant,
       principles of double jeopardy bar further proceedings in this case.

¶ 25                                       CONCLUSION
¶ 26      For the foregoing reasons, we reverse the defendant’s conviction.

¶ 27      Reversed.




                                                    -9-
