                                        2015 IL App (3d) 130581

                               Opinion filed September 1, 2015
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 14th Judicial Circuit,
                                                     )       Whiteside County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-13-0581
            v.                                       )       Circuit No. 13-CF-32
                                                     )
     JOSHUA E. MESSENGER,                            )
                                                     )       Honorable John L. Hauptman,
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justice O'Brien concurred with the judgment and opinion.
            Justice Carter specially concurred, with opinion.

                                                OPINION


¶1          A Whiteside County jury convicted defendant, Joshua Messenger, of aggravated battery

     (720 ILCS 5/12-3.05(c) (West 2012)). The trial court later sentenced him to 10 years in prison.

     Defendant does not dispute that the State’s evidence was sufficient to prove beyond a reasonable

     doubt that he committed a battery. The sole overarching issue before us is whether defendant

     was properly convicted of aggravated battery on the theory that the area inside the Whiteside

     County jail—where defendant committed the battery at issue—was “public property” within the

     meaning of section 12-3.05(c) of the Criminal Code of 2012. Id.
¶2             Defendant appeals, arguing that: (1) the State failed to prove him guilty of aggravated

     battery; (2) the trial court erred by taking judicial notice that a cell block in a county jail is public

     property; and (3) the trial court erred when it instructed the jury. We affirm the trial court’s

     ruling.

¶3                                               BACKGROUND

¶4             In January 2013, the State charged defendant with aggravated battery. The State alleged

     that defendant’s battery of another inmate, while they were both incarcerated at the Whiteside

     County jail, constituted aggravated battery because the jail is “public property” as contemplated

     by section 12-3.05(c) of the Criminal Code. Id. At trial, defendant argued: (1) the victim

     consented to the contact and therefore the battery was not insulting or provoking; and (2) the jail

     is inaccessible to the public and thus, not “public property” under the aggravated battery statute.

¶5             Before trial, the State filed a motion, requesting the trial court take judicial notice that the

     Whiteside County jail is public property. During trial, but outside the presence of the jury, the

     State presented evidence that Whiteside County owns the entire jail complex. Defendant

     objected, stating that judicial notice of this fact directed the jury to a “factual finding.” The court

     disagreed with defendant’s position and granted the State’s motion. In so doing, the trial court

     noted, “the plain and ordinary meaning of public property is property owned by the

     government.” At trial, the court informed the jury that it “can take judicial notice of certain facts

     that are, cannot be in legitimate dispute. I have taken judicial notice of the following fact, that

     the Whiteside County Jail is public property.”

¶6             Following the presentation of evidence, which included video footage of the defendant

     battering the victim inside a jail, a jury instructions conference was held. The State proposed a

     jury instruction stating:



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                      “The entire county jail is public property. The definition of public

                      property does not require that the property be an area open or

                      accessible to the public.”

       Defendant renewed his objection that the jail was not public property for purposes of the

       aggravated battery statute. The trial court disagreed, allowing the instruction and subsequently

       informing the jury that judicially-noticed facts are not necessarily conclusive. Following closing

       arguments, the jury convicted defendant of aggravated battery. Id. The trial court later

       sentenced him to 10 years in prison.

¶7            This appeal followed.

¶8                                                 ANALYSIS

¶9                                    I. Defendant’s Failure of Proof Claim

¶ 10          Defendant argues the trial court failed to prove him guilty of aggravated battery.

       Specifically, defendant asserts that a cellblock in a county jail, which is generally inaccessible to

       the public, is not “public property” under the statute. Defendant contends the trial court relied on

       an outlier case (People v. Hill) when deciding to take judicial notice that the Whiteside County

       jail is public property. People v. Hill, 409 Ill. App. 3d 451, 454 (2011). In support of this

       argument, defendant further asserts that being open and accessible to the public is the pivotal

       factor in defining public property. Thus, concluding that any other criteria used to define public

       property is based on a rationale inherently at odds with the Illinois courts’ long-held belief that

       the purpose of the aggravated battery statute is to protect the community.

¶ 11                                       A. The Standard of Review

¶ 12          When reviewing a question of statutory interpretation, we apply a de novo standard of

       review. In re Jerome S., 2012 IL App (4th) 100862, ¶ 9.



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¶ 13                          B. Public Property under the Aggravated Battery Statute

¶ 14             Under Illinois’s aggravated battery statute, the offense of battery can be aggravated based

       on the location of the incident:

                        “A person commits aggravated battery when, in committing a

                        battery, other than by the discharge of a firearm, he or she is or the

                        person battered is on or about a public way, public property, a

                        public place of accommodation or amusement, a sports venue, or a

                        domestic violence shelter.” 720 ILCS 5/12-3.05(c) (West 2012).

       The term “public property” and the others that appear with it are not defined by the statute.

¶ 15             The primary goal of statutory interpretation is to determine and effectuate the intent of

       the legislature. People v. Amigon, 239 Ill. 2d 71, 84 (2010). “The most reliable means of

       accomplishing that goal is to apply the plain and ordinary meaning of the statutory language.”

       Id. at 84-85. “Where the language is plain and unambiguous we must apply the statute without

       resort to further aids of statutory construction.” People v. Collins, 214 Ill. 2d 206, 214 (2005).

¶ 16             The defendant in this case battered a fellow inmate while they were in a common area for

       inmates. At the prosecution’s request, the trial court deemed the county jail “public property”

       via judicial notice. Defense counsel objected, arguing that areas must be accessible to the public

       in order to be deemed public property. The trial court agreed with the State and took judicial

       notice.

¶ 17             We find that under section 12-3.05(c) of the Criminal Code, the place where a battery

       occurred can be a “public place of accommodation” or “public property.” The categories listed

       in the statute are not necessarily mutually exclusive. “The word ‘or’ is a disjunctive

       conjunction.” Central Mortgage Co. v. Kamarauli, 2012 IL App (1st) 112353, ¶ 18. Use of the



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       word “or” in the statutory language indicates a list of alternatives, each of which requires

       separate treatment. In re E.B., 231 Ill. 2d 459, 468 (2008).

¶ 18          Defendant relies on People v. Kamp, 131 Ill. App. 3d 989 (1985), and People v. Ward, 95

       Ill. App. 3d 283 (1981), in arguing otherwise. These cases do not persuade us. Initially, we note

       that Kamp is distinguishable from the case at bar on its face. The defendant’s argument in Kamp

       is that the State failed to prove him guilty of aggravated battery when it only proved the incident

       occurred in an area accessible to the public, a park. Kamp, 131 Ill. App. 3d at 993. The

       defendant in this case is arguing the reverse: the State failed to prove him guilty of aggravated

       battery when it only proved the incident occurred in an area owned by the government, a jail.

¶ 19          The Kamp court found public accessibility sufficient to support a charge of felony murder

       where the underlying felony—an aggravated battery—occurred in a public park. Id. The Kamp

       court’s finding that a park is public property without evidence at trial of government ownership

       does not exclude courts from finding that an area is public property based solely on proof that it

       is government owned. The State in Kamp established at trial that the park where the defendant

       battered the victim was accessible to the public, proving the defendant guilty of aggravated

       battery. The trial and appellate courts did not find it necessary for the State to further prove the

       park was government owned in order to sustain the defendant’s conviction. Kamp does not

       address the issue of whether the State can prove property is public in nature by establishing that

       it is government owned.

¶ 20          Defense counsel in this case claims that government ownership is irrelevant in

       determining whether property is “public” under the aggravated battery statute. This is based

       upon a misreading of applicable case law. In support of his argument, defendant focuses on the




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       Ward court’s use of the term irrelevant. Ward, 95 Ill. App. 3d at 287-88. The Kamp court

       further highlighted the Ward court’s use of the term:

                      “Whether the property was actually publicly owned and, therefore,

                      public property rather than a privately owned public place of

                      accommodation is irrelevant; what is significant is that the alleged

                      offense occurred in an area accessible to the public.” (Emphasis

                      added.) (Internal quotation marks omitted.) Kamp, 131 Ill. App.

                      3d at 993 (quoting Ward, 95 Ill. App. 3d at 287-88).

¶ 21          The Ward court defined “public property” as government owned and then went on to

       declare that ownership was an extraneous matter to their case. This commentary was not a

       universal declaration. The State in Ward had initially argued the battery, which occurred in a

       hotel parking lot, had occurred “ ‘about public property.’ ” Ward, 95 Ill. App. 3d at 286. The

       trial court later declared the battery had actually occurred “ ‘about a public place of

       accommodation’ ” and the indictment was subsequently amended. Id. at 286-87. To the extent

       the Kamp and Ward courts characterize ownership as irrelevant, these discussions were in the

       context that public property, for purposes of the statute, need not necessarily be publicly owned.

¶ 22          Public property need not necessarily be accessible to the general public in order to be

       defined as such. “Nothing indicates the General Assembly meant for the plain and ordinary

       meaning of ‘public property’ to be anything other than government-owned property. Moreover,

       the county jail is property used for the public purpose of housing inmates.” Hill, 409 Ill. App. 3d

       at 455. Likewise, one temporarily detained in a county jail is still a citizen and member of the

       community. We cannot believe that the General Assembly meant to discourage attacks on

       people in the courthouse, but not in the jail.



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¶ 23          Here, as in Hill, the county jail where the incident occurred was owned by the

       government and therefore considered public property. The State presented evidence that

       defendant battered someone in a jail owned by a government entity. Therefore, as a matter of

       statutory interpretation, the battery clearly falls within the aggravated battery statute.

¶ 24                             II. Judicial Notice of an Element of the Offense

¶ 25          Next, defendant argues the court erroneously took judicial notice of an essential element

       of aggravated battery. Specifically, defendant contends that the State was unjustly relieved of its

       burden of proving he battered the victim on public property when the trial court took judicial

       notice that the Whiteside County jail is public property. Again, we disagree.

¶ 26                                        A. The Standard of Review

¶ 27          As an evidentiary matter, judicial notice is reviewed for abuse of discretion. In re A.B.,

       308 Ill. App. 3d 227, 234 (1999); In re J.G., 298 Ill. App. 3d 617, 627 (1998). “We review the

       trial court’s ruling on an evidentiary matter, including judicial notice, by applying an abuse of

       discretion standard.” In re S.M., 2015 IL App (3d) 140687, ¶ 13.

¶ 28                                             B. Judicial Notice

¶ 29          Under Rule 201 of the Illinois Rules of Evidence, a trial court must take judicial notice of

       an adjudicative fact when a party requests it to do so and provides the necessary supporting

       information. Ill. R. Evid. 201(d) (eff. Jan. 1, 2011). The extension of the judicial notice doctrine

       to include “facts which, while not generally known, are readily verifiable from sources of

       indisputable accuracy is an important aid in the efficient disposition of litigation, and its use,

       where appropriate, is to be commended.” People v. Davis, 65 Ill. 2d 157, 165 (1976).

       Furthermore, “[a] court may take judicial notice of a fact even if it constitutes an element of the

       offense.” Hill, 409 Ill. App. 3d at 456 (citing People v. White, 311 Ill. App. 3d 374, 380 (2000)).



                                                          7
¶ 30          The due process clause of the fifth amendment and the notice and jury trial guarantees of

       the sixth amendment require “any fact (other than prior conviction) that increases the maximum

       penalty for a crime [to] be charged in an indictment, submitted to a jury, and proven beyond a

       reasonable doubt.” Jones v. United States, 526 U.S. 227, 243, n.6 (1999). By way of the

       fourteenth amendment, the same is true for cases involving state statutes. Apprendi v. New

       Jersey, 530 U.S. 466, 476 (2000). In criminal cases, judicially-noticed facts are in the province

       of the jury, preserving a criminal defendant’s right to a jury trial. U.S. Const., amend. VI; Ill.

       Const. 1970, art. I, § § 8, 13; People v. Love, 2013 IL App (3d) 120113, ¶ 26. Taking judicial

       notice of an element of an offense does not contradict Apprendi and its progeny. Compliance

       with Rule 201(g) (Ill. R. Evid. 201(g) (eff. Jan. 1, 2011)) ensures that judicial notice in criminal

       cases is merely another form of proof for the jury to accept or reject. United States v. Chapel, 41

       F.3d 1338, 1342-43 (9th Cir. 1994).

¶ 31          The trial court in this case was asked to take judicial notice of a fact and provided with

       the necessary supporting information. The record is clear on the following facts. Outside the

       presence of the jury, Whiteside County jail correctional officer Corporal John Willhite testified

       that Whiteside County owns the entire jail complex, including the area where defendant

       committed the battery. Defense counsel further solicited from Corporal Willhite that the area

       where defendant committed the battery was not open or accessible to the public. The trial court

       informed the parties that it would take judicial notice that the Whiteside County jail is public

       property. Defendant objected on the grounds that government ownership does not equate to

       public property. The trial court later informed the jury that it had taken judicial notice that the

       Whiteside County jail is public property and that judicially-noticed facts are not conclusive facts.

       In other words, the jury was free to disregard the judicially-noticed fact.



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¶ 32            On appeal, defendant argues the status of a county jail as public property under the

       aggravated battery statute is subject to legitimate dispute. Defendant alleges there is a split

       among the appellate courts as to the definition of public property in this context. As previously

       discussed, we disagree. This court has found no decision that characterizes a county jail as

       anything other than public property. We see no reason to rule that a county jail is not public

       property under the aggravated battery statute or that it is, per se, an issue subject to reasonable

       dispute.

¶ 33            We note that defendant also implies on appeal that taking judicial notice of an element of

       an offense is erroneous. The Illinois courts, however, have regularly sanctioned the use of

       judicial notice to establish an element of the offense. Davis, 65 Ill. 2d at 165; People v. Scott,

       278 Ill. App. 3d 468, 475 (1996); White, 311 Ill. App. 3d at 380; Hill, 409 Ill. App. 3d at 456.

       We reiterate the Davis court’s expansion of judicial notice for this purpose, as discussed in

       White:

                       “The quoted principle in Davis that ‘the extension of the doctrine

                       of judicial notice to include facts *** readily verifiable from

                       sources of indisputable accuracy is an important aid in the efficient

                       disposition of litigation’ [citation] applies with equal force

                       regardless of the standard of proof required. Neither the Davis nor

                       Scott court conditioned their sanction of the use of judicial notice

                       upon the level of proof required.” White, 311 Ill. App. 3d at 380.

¶ 34                                            III. Jury Instruction

¶ 35            Last, defendant argues the trial court’s jury instruction that the Whiteside County jail is

       public property was improper. Defendant asserts the trial court’s reliance on Hill renders the



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       instruction an inaccurate statement of the law. Having disposed of this issue previously, we will

       not address it further.

¶ 36           Defendant also points out, however, that the instruction failed to inform the jury this was

       a judicially-noticed fact, which it was not required to accept as conclusive. Defendant argues

       this created an unconstitutional mandatory conclusive presumption. Without citing Apprendi,

       defendant argues the instruction did not allow the jury to decide the battery occurred on public

       property, denying the defendant his due process rights. Apprendi v. New Jersey, 530 U.S. 466

       (2000). In response, the State counters that the trial court remedied any problem with the

       constitutionality of the jury instruction by orally admonishing the jury that it need not accept

       judicially-noticed facts as conclusive. We find the instruction erroneous, but an error that was

       ultimately harmless.

¶ 37                                       A. The Standard of Review

¶ 38           “Generally, an issue concerning the propriety of a jury instruction is reviewed under an

       abuse of discretion standard; however, review is de novo when the issue is whether the

       applicable law was correctly conveyed in the jury instruction.” People v. Franklin, 2012 IL App

       (3d) 100618, ¶ 21 (citing People v. Turman, 2011 IL App (1st) 091019, ¶ 18).

¶ 39                                          B. The Jury Instruction

¶ 40           During a jury instructions conference in this case, the State proposed a non-Illinois

       Pattern Jury Instruction which was later provided to the jury. The instruction stated as follows:

                       “The entire county jail is public property. The definition of public

                       property does not require that the property be an area open or

                       accessible to the public.”

       The court gave the instruction over defendant’s objection.



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¶ 41           The trial court converted a judicially-noticed fact into an instruction and submitted it to

       the jury without including the Illinois Rules of Evidence Rule 201(g) caveat language; ceasing to

       remind the jury that they need not accept that fact as conclusive. The jury instruction removed

       an element of the offense from the hands of the jury. This was a clear violation of Apprendi.

       And under Illinois law, all mandatory presumptions are per se unconstitutional. People v.

       Pomykala, 203 Ill. 2d 198, 203-04 (2003). The erroneous instruction in this case, however, is not

       akin to an unconstitutional directed verdict.

¶ 42           Apprendi clearly states that, except for the fact of a prior conviction, “any fact that

       increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to

       a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490

       (2000); People v. Swift, 202 Ill. 2d 378, 392 (2002). The Supreme Court applies harmless-error

       analysis to cases involving improper instructions on a single element of an offense. See, e.g.,

       Carella v. California, 491 U.S. 263, 266 (1989) (per curiam) (applied to a mandatory conclusive

       presumption); Pope v. Illinois, 481 U.S. 497, 502-03 (1987) (applied to a misstated element of

       the offense). Illinois courts apply harmless-error review when a defendant has timely objected to

       an Apprendi error and plain error when the issue was forfeited. See People v. Thurow, 203 Ill.

       2d 352, 363 (2003); People v. Crespo, 203 Ill. 2d 335, 347 (2001); People v. Kaczmarek, 207 Ill.

       2d 288, 302 (2003); People v. Nitz, 219 Ill. 2d 400, 414 (2006). Accordingly, we apply harmless

       error in this case since the defendant objected to the instruction at trial.

¶ 43           Thurow and its progeny have established that an appellate court reviewing an Apprendi

       error must examine the evidence and determine what a rational jury would have found. Thurow,

       203 Ill. 2d at 368-69. In contrast to structural errors, “instructional errors are deemed harmless if

       it is demonstrated that the result of the trial would not have been different had the jury been



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       properly instructed.” People v. Washington, 2012 IL 110283, ¶ 60 (citing Pomykala, 203 Ill. 2d

       at 210).

¶ 44           In spite of the constitutional violation that stems from the jury instruction at issue in this

       case, the defendant is not entitled to a retrial. The Illinois supreme court has ruled that an

       Apprendi violation is not automatic grounds for reversal. Kaczmarek, 207 Ill. 2d 288; Thurow,

       203 Ill. 2d at 371-72; Nitz, 219 Ill. 2d 400; People v. Rivera, 227 Ill. 2d 1 (2007). The

       instruction at issue is contradictory, in so far as it conflicts with the trial court’s earlier oral

       instruction to the jury that it need not necessarily conclude the jail was public property, but in the

       next breath asserts in writing that a jail is public property. This, too, is problematic but not

       necessarily grounds for reversal. United States v. Dobek, 789 F.3d 698, 701-02 (7th Cir. 2015).

       When no reasonable jury would acquit the defendant, even without the use of a confusing

       instruction, a retrial is a waste of judicial resources. Id.; see also United States v. Macias, 786

       F.3d 1060, 1063 (7th Cir. 2015). Such is the case here.

¶ 45           The evidence was overwhelmingly against the defendant in this case. There is no

       reasonable argument that the evidence was closely balanced. At trial, the jury watched video

       footage of the defendant unexpectedly attacking the victim from behind and repeatedly battering

       him. All the while, they were patently inside a jail. All witnesses at trial testified that the

       incident took place at the Whiteside County jail.

¶ 46           To believe the erroneous instruction resulted in a structural error—and is therefore now

       reversible—one would have to assume the jury convicted the defendant without concluding the

       battery took place in a jail. The elements of aggravated battery are undisputable in this case. For

       the reasons previously stated, no reasonable jury would find that the battery did not occur on

       public property. Accordingly, no reasonable jury could acquit the defendant at a retrial, even if



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       the instruction at issue were omitted.

¶ 47          When a defendant cannot bring forth facts contesting the element in question, as is the

       case here, answering the question of whether or not the jury verdict would have been the same

       without the error does not fundamentally undermine the purpose of the jury trial guarantee.

       Neder v. United States, 527 U.S. 1, 19 (1999). It is beyond a reasonable doubt that the defendant

       was found guilty by a rational jury. Thus, the trial court’s conviction stands.

¶ 48                                              CONCLUSION

¶ 49          For the foregoing reasons, the judgment of the circuit court of Whiteside County is

       affirmed.

¶ 50          Affirmed.

¶ 51          JUSTICE CARTER, specially concurring:

¶ 52          I concur with the above opinion with the addition of the following comments. The

       criminal Illinois Pattern Jury Instructions provide a general instruction in regard to judicial

       notice, which should be given when appropriate. As to the specific fact judicially noticed, the

       Illinois Rules of Evidence allow discretion in the trial court as to the method of informing the

       jury that a fact has been judicially noticed.

¶ 53          Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that wherever the

       criminal Illinois Pattern Jury Instructions contains an applicable instruction and it is deemed

       appropriate in a criminal case it "shall be used." Paragraph (9) of the Illinois Pattern Jury

       Instructions Criminal, No. 1.01 (4th ed. Supp. 2015) (hereinafter, IPI Criminal 4th (Supp. 2015))

       provides:

                      "The evidence which you should consider consists only of the

                      testimony of the witnesses [and (the exhibits) (and) (stipulations)


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                      (and) (judicially noticed facts)] which the court has received. [You

                      may, but are not required to, accept as conclusive any fact

                      judicially noticed.]" IPI Criminal 4th No. 1.01 (Supp. 2015).

¶ 54          The committee note to IPI Criminal 4th No. 1.01 (Supp. 2015) indicates:

                      "The Committee has added 'stipulations' and 'judicially noticed

                      facts' in paragraph [9] as types of evidence a jury should consider

                      during the course of its deliberations. In Illinois Rule of Evidence

                      201(g), the Illinois Supreme Court     stated, 'In a criminal case, the

                      court shall inform the jury that it may, but is not   required      to,

                      accept as conclusive any fact judicially noticed'.       The second

                      sentence in Paragraph [9] has been added so that this Instruction

                      complies with Rule 201(g)." IPI Criminal 4th No. 1.01 Committee

                      Note (Supp. 2015).

¶ 55          Illinois Rule of Evidence 201(g) is entitled "Informing the Jury" and provides:

                      "In a civil action or proceeding, the court shall inform the jury to

                      accept as conclusive any fact judicially noticed. In a criminal case,

                      the court shall inform the jury that it may, but is not required to,

                      accept as conclusive any fact judicially       noticed." Ill. R. Evid.

                      201(g) (eff. Jan. 1, 2011).

¶ 56          Illinois Rule of Evidence 201(g) is identical to Federal Rule of Evidence 201(g) before its

       amendment effective December 1, 2011 (Fed. R. Evid. 201(g) (prior to amendments of

       December 1, 2011)), "except for the modification of the title and the substitution of 'inform' for

       'instruct' in both sentences, thus permitting more informal direction from the court to the jury."


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       Gino L. DiVito, The Illinois Rules of Evidence: A Color-Coded Guide, Author's Commentary on

       Ill. R. Evid. 201(g), at 31 (January 12, 2015). Illinois Rule of Evidence 201(g) modified the

       earlier version of Federal Rule of Evidence 201(g) to substitute the word "inform" for "instruct"

       in both sentences and changed the title from "Instructing the Jury" to "Informing the Jury." Ill.

       R. Evid. 201(g) (eff. Jan. 1, 2011). These variances allow the trial court discretion to either

       formally instruct or give an informal direction regarding judicially noticed facts and the

       mandated caveat—that the jury may, but is not required to, accept a judicially noticed fact as

       conclusive. Graham's Handbook of Illinois Evidence indicates that, if a matter would fall within

       the province of the jury, the court must ensure that the jury is aware that the fact has been

       judicially noticed, which may be accomplished: (1) as a direct result of the jury hearing counsel's

       request for judicial notice and the court's concurrence; (2) the judge advising the jury specifically

       at the time that the particular fact has been judicially noticed; or (3) by the court including an

       instruction to the jury that a particular fact has been judicially noticed at the time of formal jury

       instructions. Michael H. Graham, Graham's Handbook of Illinois Evidence § 201.4, at 85 (10th

       ed. 2010).

¶ 57          Thus, a trial court has discretion to include the judicially noticed fact in the jury

       instructions or inform the jury of a judicially noticed fact with an informal direction, with the

       appropriate method depending on the circumstances. For example, where a judicially noticed

       fact pertains to an element of a charged offense in a criminal case, then the State might request

       that the judicially noticed fact be included in a formal jury instruction. On the other hand, all

       parties may be satisfied with an informal direction to the jury in regard to a judicially noticed

       fact in other circumstances.




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