                                   Illinois Official Reports

                                           Appellate Court



                             People v. Warrington, 2014 IL App (3d) 110772



Appellate Court               THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                       AARON WARRINGTON, Defendant-Appellant.



District & No.                Third District
                              Docket No. 3-11-0772



Filed                         April 2, 2014



Held                          Defendant’s conviction for threatening a public official, a police
(Note: This syllabus          officer, was reversed and the cause was remanded for a new trial
constitutes no part of the    where the trial court erred by giving inconsistent instructions on the
opinion of the court but      offense of threatening a public official, and neither the issues
has been prepared by the      instruction nor the definition instruction included as an element of the
Reporter of Decisions         offense the requirement, pursuant to subsection 12-9(a-5) of the
for the convenience of        Criminal Code effective at the time of defendant’s arrest, that the State
the reader.)                  prove defendant communicated a unique threat to a police officer.




Decision Under                Appeal from the Circuit Court of Warren County, No. 11-CF-57; the
Review                        Hon. Greg McClintock, Judge, presiding.




Judgment                      Reversed and remanded.
     Counsel on               Bryon Kohut (argued), of State Appellate Defender’s Office, of
     Appeal                   Ottawa, for appellant.

                              Albert G. Algren, State’s Attorney, of Monmouth (Thomas D. Arado
                              (argued), of State’s Attorneys Appellate Prosecutor’s Office, of
                              counsel), for the People.




     Panel                    JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                              Justices McDade and O’Brien concurred in the judgment and opinion.




                                               OPINION

¶1         On April 23, 2011, defendant Aaron Warrington was arrested for the felony offense of
       threatening a public official, a police officer, and resisting arrest, a misdemeanor charge. The
       State charged defendant, by information, with threatening a public official, a Class 3 felony,
       but did not include the specific statutory language regarding the victim being a police officer.
       Eventually, the State filed a third misdemeanor count of fleeing and eluding a police officer.
¶2         The court held a jury trial on all charges. During the jury instructions conference, neither
       the court nor the parties recognized the People’s tendered instructions did not include an
       element of the felony offense requiring the State to prove defendant communicated a “unique
       threat” to a police officer as a public official. Defendant argues that although the instruction
       issue was not properly preserved for review, plain error requires reversal of his felony
       conviction. Additionally, defendant contends the State presented insufficient evidence to prove
       him guilty of threatening a public official who is a police officer. We reverse and remand for a
       new trial.

¶3                                          BACKGROUND
¶4         On April 25, 2011, the State filed a two-count information against defendant. Count I
       alleged, on or about April 23, 2011, defendant committed the offense of threatening a public
       official, pursuant to section 12-9(a)(1)(i), (a)(2) of the Criminal Code of 1961 (the Code), a
       Class 3 felony. 720 ILCS 5/12-9(a)(1)(i), (a)(2) (West 2010). The information alleged
       defendant “knowingly conveyed to Terry Hepner, a sworn law enforcement officer for the City
       of Monmouth, Illinois, a public official, an oral threat to commit bodily harm to Terry Hepner,
       as such threat was made in such a way to place Terry Hepner in reasonable apprehension of
       immediate or future bodily harm and said threat was conveyed because of Terry Hepner’s
       performance of a public duty.” Counts II and III alleged the misdemeanor offenses of resisting
       a peace officer fleeing or attempting to elude a police officer.
¶5         The jury trial commenced on August 10, 2011. The State’s first witness, Monmouth police
       officer Terry Hepner, testified he was stopped at a traffic light in a marked squad car, on April


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       23, 2011, when he heard loud music coming from defendant’s vehicle from over 75 feet away.
       Officer Hepner conducted a traffic stop on defendant’s vehicle because the loud music violated
       city ordinances. Once stopped, defendant told the officer it was a “bullshit stop.” Officer
       Hepner advised defendant he was going to receive a citation for an ordinance violation and
       began to walk back to his squad car, when defendant said, “See ya, Hep,” and sped off in his
       vehicle.
¶6         Officer Hepner caught up to defendant with his lights and siren activated. At that point,
       defendant did not stop, but turned southbound on an intersecting street. Officer Hepner
       followed defendant for several blocks until defendant turned into the long driveway of his
       girlfriend’s residence, parked back near the garage, and exited his vehicle. Officer Hepner
       approached defendant and told defendant to place his hands on the squad car. Defendant kept
       his arms at his side and did not comply.
¶7         Officer Hepner grabbed defendant’s left hand and secured it with a handcuff. When Officer
       Hepner tried to grab defendant’s right hand, defendant pulled away, requiring Hepner to pin
       defendant’s body against the squad car to restrain defendant’s right hand. Officer Hepner told
       defendant to stop resisting so the officer could get defendant’s right hand cuffed.
¶8         Defendant’s girlfriend, Tuesday Birditt, came outside and, according to the officer,
       defendant “spun himself around,” resulting in a “little struggle” which ensued for four to five
       minutes until Officer Hepner placed the right handcuff on defendant. Officer Hepner took
       defendant to the passenger side of the squad car, and defendant initially refused to sit in the
       squad, but he finally sat down. According to Hepner, defendant continued yelling the whole
       time and started spitting at the back window of the squad.
¶9         While en route to the police station, defendant asked Hepner whether the officer had
       children. Defendant told Hepner he knew where the officer lived, and he would have beaten
       Hepner’s “ass” if Hepner had not been a police officer. Once they arrived at the jail, Officer
       Hepner said defendant told him he was going to “head butt” the officer while walking near the
       officer. Officer Hepner said he believed defendant’s threats were actual threats against him.
¶ 10       The jury then viewed a DVD copy of the recording from the camera in Officer Hepner’s
       squad car during defendant’s arrest. Officer Hepner said the video portion of the incident did
       not record properly, showing only a white background; however, the audio recorded properly
       during the arrest and the sound was an accurate representation of the words exchanged
       between defendant and Officer Hepner.
¶ 11       Next, Anthony St. Clair testified, in the State’s case in chief, that he was a college intern
       riding along with Officer Hepner on April 23, 2011. St. Clair’s account of the incident was
       similar to Hepner’s testimony.
¶ 12       Tuesday Birditt, defendant’s girlfriend for nine years, testified she saw the officer
       approach defendant, who had his hands behind his back. Birditt testified, after the officer
       placed a handcuff on one of defendant’s wrists, she saw the officer push defendant up against
       the vehicle. She stated she did not see defendant pull his other hand away from the officer.
       Birditt said she kept yelling at the officer to try to find out what was going on, and it was
       possible that she also yelled at defendant at that time. Birditt said defendant was yelling,
       hollering, and cursing after the officer pushed him against the vehicle, but she did not hear him
       make any threats. She said she did not think defendant was resisting until the officer pushed
       him against the vehicle.


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¶ 13       Defendant testified, on the day of the traffic stop, a vehicle that was stopped behind him at
       the traffic light was playing loud music. After Officer Hepner stopped his vehicle, defendant
       denied playing his music too loudly and tried to explain why his music was not too loud when
       the officer returned to his squad car. According to defendant, he overheard Officer Hepner use
       profanity while at his squad car, and defendant became fearful and drove away from the scene
       because he had prior run-ins with this officer. Defendant testified he was afraid Officer Hepner
       might “possibly plant contraband in my vehicle.”
¶ 14       Defendant thought Officer Hepner treated him unfairly because defendant used to date one
       of Hepner’s ex-girlfriends approximately 10 years prior. Defendant testified Officer Hepner
       also did not like him because, approximately six years ago, defendant had photos of Officer
       Hepner that reflected badly on Officer Hepner, and defendant gave the photos to the press.
       Defendant mentioned those photos to Officer Hepner, at the traffic stop on April 23, 2011, and
       defendant asked the officer if he was going to keep harassing defendant because of those
       photos.
¶ 15       After defendant drove away from the initial traffic stop, he said he observed Officer
       Hepner’s squad catch up to his vehicle and turn on his flashing lights, but defendant did not
       stop immediately, traveling a couple more blocks to Birditt’s residence on 6th Street. When he
       parked the car in the driveway, defendant said he yelled for Birditt to come outside. Defendant
       said he complied with Officer Hepner’s directive for defendant to put his hands behind his
       back. According to defendant, Officer Hepner placed one handcuff on defendant’s left wrist
       and then “slam[med] my head into the quarter panel.” Defendant agreed that a struggle
       occurred for “somewhere between three and six minutes.” Defendant stated Officer Hepner
       finally let him up and placed the second cuff on his right hand. Two other Monmouth police
       officers, Corsaro and Benson, arrived at the scene at this point.
¶ 16       Defendant testified Officer Hepner repeatedly told him to get into his squad car but
       defendant attempted to talk to Officer Corsaro and did not get in the squad. Officer Hepner
       then forced defendant into the squad car. Defendant observed the officers searching the vehicle
       he had been driving and he observed Birditt run up to the vehicle telling the officers it was her
       car and they should not tow it. Defendant said this further upset him.
¶ 17       Defendant denied telling Officer Hepner he was going to “beat his ass,” but admitted
       saying he would beat his ass when the officer retired. Defendant said it was Easter weekend
       and he would not be able to be with his own child on Easter if he was arrested, which was why
       he asked Hepner if he had any children. Defendant told Officer Hepner he was “going to put
       [his] business out there,” meaning he had a lot of “dirt” on the officer, but he did not attempt to
       “head butt” Officer Hepner. While in the lobby of the jail, defendant said he was “discussing
       the photos” again when Officer Hepner turned him over to the booking officers.
¶ 18       On cross-examination, defendant stated he knew Officer Hepner lived near his own house
       and knew Officer Hepner had children. Defendant said he did not threaten to harm Officer
       Hepner’s children during this incident. Defendant admitted to telling Officer Hepner he knew
       where he lived at the time he asked him about Officer Hepner’s children. Defendant said he
       and Officer Hepner were “talking smack” back and forth to each other.




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¶ 19       During the jury instruction conference, the State tendered People’s Instructions Nos. 1
       through 23. 1 Defendant’s attorney objected to a single instruction, People’s Instruction
       No. 12, the issues instruction for the felony offense. The transcript of the jury instructions
       conference reflects the following discussion of People’s Instructions Nos. 10, 11 and 12,
       pertaining to the charge of threatening a public official:
                    “THE COURT: I.P.I. 11.49, People’s instruction 10, modified 11.49; no objection,
               is that correct?
                    [DEFENSE COUNSEL]: I think that’s accurate.
                    THE COURT: People’s instruction 11 modeled on [I.P.I.] 11.49 A, no objection,
               correct?
                    [DEFENSE COUNSEL]: That is correct.
                    THE COURT: People’s instruction 12 modeled on [I.P.I.] 11.50 [the issues
               instruction], no objection, is that correct?
                    [DEFENSE COUNSEL]: If I may just have a moment, Judge. I’m sorry, Judge, I
               don’t have a copy of the I.P.I., but one thing I notice there is a variance between the
               instruction and the charge. The charge indicates is that the charge took place in that the
               officer [was] in apprehension of immediate and bodily harm. I notice that isn’t in the
               I.P.I. instruction tendered and am not familiar enough with that instruction to know if
               that is an omission.
                    [PROSECUTOR]: I had a question [on] that one myself. I think Mr. Algren was
               going to check this and would ask to do that again.
                    THE COURT: Well, we’ve had two days to go over these instructions.
                    [PROSECUTOR]: Give it then.
                    THE COURT: Well, are you tendering this instruction or not?
                    [PROSECUTOR]: Yes.
                    THE COURT: Mr. Siegel, are you tendering the instruction?
                    [DEFENSE COUNSEL]: Yes, to indicate that the officer was not in reasonable
               apprehension?
                    THE COURT: And your response?
                    [PROSECUTOR]: No.
                    THE COURT: I believe it should include the language of reasonable apprehension
               of immediate and future bodily harm in between inflict and bodily harm. With that
               change it will be given. If that change is made does that resolve your objection?
                    [DEFENSE COUNSEL]: Yes, sir.
                    THE COURT: Then the State will modify that.”
       After closing arguments, the jury returned guilty verdicts on all three counts.
¶ 20       The court ordered a presentence investigation report and held the sentencing hearing on
       September 26, 2011. For the Class 3 felony of threatening a public official charge (count I), the

           1
            The appellate record does not include the numbered jury instructions, but only the unnumbered
       instructions actually given to the jury; therefore, any specific references to the instruction numbers for
       each party, as well as the Illinois Pattern Jury Instruction (IPI) number associated with them, were
       discussed in the transcript of the jury instruction conference.

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       court sentenced defendant to 30 months of conditional discharge with conditions that
       defendant serve 120 days in jail, concurrent with counts II and III, to submit to a DNA analysis
       and pay the $200 fee “if not previously submitted,” and to pay “court costs only.”
¶ 21       The court also entered a judgment and conviction on the two misdemeanor charges of
       resisting a peace officer and fleeing or eluding a police officer, counts II and III. For the
       resisting a peace officer charge, the court entered a conviction and sentenced defendant to
       serve 120 days in jail, concurrent with counts I and III, and to pay “court costs only.” For the
       fleeing or eluding a police officer charge, the court entered a conviction and sentenced
       defendant to serve 30 days in jail, concurrent with the other counts, and to pay “court costs
       only.”
¶ 22       Defendant did not file a posttrial motion, but filed a timely notice of appeal regarding his
       felony conviction for threatening a public official.

¶ 23                                            ANALYSIS
¶ 24       On appeal, defendant challenges only his felony conviction for threatening a public official
       and does not raise any issues regarding his misdemeanor convictions. Defendant argues he is
       entitled to a new trial due to improper and conflicting jury instructions. Additionally,
       defendant contends the State did not prove him guilty beyond a reasonable doubt of the offense
       of threatening a public official. Finally, defendant claims he should be awarded one additional
       day of credit for time served in presentence custody and should receive $5 per day for
       presentence incarceration credited against his Child Advocacy Center Fund fee (CAC) of $30
       and his Violent Crime Victims Assistance Fund fee (VCV) of $20 should be reduced. 2
¶ 25       The State claims defendant forfeited review of the jury instructions issue and contends it
       proved defendant guilty, beyond a reasonable doubt, of the offense of threatening a public
       official as charged. The State concedes the credit issues, but denies defendant’s VCV fee
       should be reduced.

¶ 26                                     I. Jury Instruction Errors
¶ 27       We first address whether the trial court properly instructed the jury with respect to the
       charged felony offense. Specifically, the State’s information alleged defendant committed the
       more general felony offense of threatening a public official under section 12-9(a)(1)(i), (a)(2)
       of the Code (720 ILCS 5/12-9(a)(1)(i), (a)(2) (West 2010)), which is not specific to
       circumstances where a police officer, as a public official, is the target of a purported threat. The
       charged section of the statute provides:
                  “A person commits the offense of threatening a public official when:
                  (1) that person knowingly and willfully delivers or conveys, directly or indirectly,
              to a public official by any means a communication:
                      (i) containing a threat that would place the public official or a member of his or
                  her immediate family in reasonable apprehension of immediate or future bodily
                  harm, sexual assault, confinement, or restraint[.]” (Emphasis added.) 720 ILCS

          2
            The clerk’s fee sheet, in the record, shows costs were “[o]rdered on October 3, 2011,” and 13
       different fees were assessed by the clerk totaling $325, including the $30 CAC and $20 VCV fees at
       issue.

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                    5/12-9(a)(1)(i) (West 2010).
¶ 28       After the defense objected, the State modified People’s Instruction No. 12, the issues
       instruction for threatening a public official. The modified People’s Instruction No. 12,
       tendered to this jury, in relevant part, provided:
                    “To sustain the charge of threatening public officials, the State must prove the
                following propositions:
                    First Proposition: That the defendant knowingly and willfully delivered or
                conveyed, directly or indirectly, a threat to place Terry Hepner in reasonable
                apprehension of immediate or future bodily harm; and
                    Second Proposition: That Terry Hepner was a public official at the time of the
                threat; and
                    Third Proposition: That the threat was contained in an oral statement; and
                    Fourth Proposition: That the threat was conveyed because of the performance or
                nonperformance of some public duty; and
                    Fifth Proposition: That when the defendant conveyed the threat, he knew Terry
                Hepner was then a public official.” (Emphasis added.)
¶ 29       Without objection, the court gave the jury People’s Instruction No. 10 defining the offense
       of threatening a public official, without the reasonable apprehension language. It is clear from
       a simple comparison of the two jury instructions that People’s Instruction No. 10 and People’s
       Instruction No. 12 were inconsistent. For example, the issues instruction required the jury to
       consider whether the communicated threat by defendant caused the public official to form a
       reasonable apprehension of immediate or future bodily harm while the definition instruction
       did not include the requisite reasonable apprehension language. 3
¶ 30       It is undisputed that defense counsel did not challenge the conflicting instructions in a
       posttrial motion. Typically, a defendant forfeits review of a jury instruction error by failing to
       address the instruction issue in a posttrial motion. People v. Herron, 215 Ill. 2d 167, 175
       (2005). However, Illinois Supreme Court Rule 451(c) allows for review of jury instruction
       errors under a limited exception and provides: “[S]ubstantial defects are not waived by failure
       to make timely objections thereto if the interests of justice require.” Ill. S. Ct. R. 451(c) (eff.
       July 1, 2006). When conflicting instructions are given, one being a correct statement of law
       and the other an incorrect statement of law, our supreme court has held the error cannot be
       deemed harmless. People v. Pollock, 202 Ill. 2d 189, 212 (2002) (citing People v. Bush, 157 Ill.
       2d 248, 254 (1993)). “[T]he issue of whether the jury instructions accurately conveyed to the
       jury the applicable law is reviewed de novo.” People v. Parker, 223 Ill. 2d 494, 501 (2006).
¶ 31       Here, the court not only erred by giving the jury inconsistent jury instructions regarding the
       offense of threatening a public official, more importantly, neither the issues nor definition
       instruction included an element of the offense requiring the State to prove defendant
       communicated a unique threat to a police officer. Specifically, effective June 1, 2008,
       subsection 12-9(a-5) of the Code was added to the statute by Public Act 95-466 (Pub. Act
       95-466, § 5 (eff. June 1, 2008)) to address situations when the public official targeted by a

           3
            We note that the Illinois Pattern Jury Instructions, Criminal, No. 11.49 (4th ed. 2000) (hereinafter,
       IPI Criminal 4th) and IPI Criminal 4th No. 11.50, the definition and issues instructions, do not include
       “reasonable apprehension” language and, therefore, do not track with the statute.

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       threat was a police officer. Section 12-9(a-5) of the Code, effective at the time of defendant’s
       arrest, provided:
                “For purposes of a threat 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 2010).
       Although the State did not allege defendant violated section 12-9(a-5) of the Code, the recent
       decision of People v. Hale, 2012 IL App (4th) 100949, holds that the exclusion of the “unique
       threat” element in the jury instructions constituted plain error requiring a new trial. Id. ¶ 24.
       Thus, we reverse defendant’s felony conviction for threatening a public official and remand for
       a new trial with a properly instructed jury. 4
¶ 32       Defendant also raised issues regarding his credit for time served in presentence
       incarceration and monetary credits against fines for presentence incarceration. Since defendant
       only raises these issues on appeal related to the sentence imposed following his conviction for
       the offense of threatening a public official, which is now reversed, we will not address these
       issues in this opinion.

¶ 33                                   II. Sufficiency of the Evidence
¶ 34       Defendant also argues the State did not prove him guilty beyond a reasonable doubt of
       threatening a public official where the public official is a police officer. As stated above, in
       2008, subsection 12-9(a-5) of the Code was added to the statute by Public Act 95-466 (Pub.
       Act 95-466, § 5 (eff. June 1, 2008)) to address situations when the public official targeted by a
       threat was a police officer. Prior to that statute, police officers did not fall under the definition
       of a “public official” for purposes of that statute. It is a well-established fundamental rule of
       statutory construction that “where there exists a general statutory provision and a specific
       statutory provision, either in the same or in another act, both relating to the same subject, the
       specific provision controls and should be applied.” People v. Botruff, 212 Ill. 2d 166, 175
       (2004) (citing Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002)). Thus, in
       order for a defendant to be found guilty of threatening a public official when a threat is made to
       a sworn law enforcement officer as a public official, a “unique threat” is an essential element of
       the offense and “ ‘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.’ ” Hale, 2012 IL
       App (4th) 100949, ¶ 20 (quoting 720 ILCS 5/12-9(a-5) (West 2008)).
¶ 35       In reviewing the sufficiency of the evidence, viewing the evidence in a light most favorable
       to the prosecution, it is the duty of this court to determine whether any rational trier of fact
       could have found all of the essential elements of the crime beyond a reasonable doubt. People
       v. Williams, 193 Ill. 2d 306, 338 (2000). The reviewing court does not resolve conflicts in the
       evidence or the credibility of the witnesses. Id. In this case, looking at the totality of the
       evidence in a light most favorable to the State, and applying that evidence to all of the
       elements, including the “unique threat” element, we conclude there was sufficient evidence to
       support defendant’s conviction; therefore, there is no double jeopardy impediment to a new


           4
             We note the pattern criminal jury instructions for threatening a public official (IPI Criminal 4th
       Nos. 11.49, 11.49A, and 11.50) have not been updated since the enactment of Public Act 95-466, § 5
       (eff. June 1, 2008).

                                                      -8-
       trial.

¶ 36                                          CONCLUSION
¶ 37       For the foregoing reasons, we reverse defendant’s conviction for threatening a public
       official, vacate that judgment of the circuit court, and remand that count for a new trial.

¶ 38       Reversed and remanded.




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