Filed 11/23/10                       NO. 4-10-0203

                              IN THE APPELLATE COURT

                                      OF ILLINOIS

                                  FOURTH DISTRICT

In re: CHARLES K., a Person Found Subject to           )      Appeal from
Involuntary Admission,                                 )      Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS,                   )      Macon County
             Petitioner-Appellee,                      )      No. 10MH27
             v.                                        )
CHARLES K.,                                            )      Honorable
             Respondent-Appellant.                     )      Lisa Holder White,
                                                       )      Judge Presiding.


             JUSTICE APPLETON delivered the opinion of the court:

             In February 2010, a petition was filed for the emergency involuntary

admission of respondent, Charles K., alleging he was mentally ill, reasonably expected to

inflict serious physical harm upon himself or others, and unable to provide for his basic

physical needs. The trial court conducted a jury trial and, upon the jury's verdict finding

respondent was a person subject to involuntary admission, ordered respondent

hospitalized for no more than 90 days. On appeal, respondent claims the order must be

reversed because the jury was not instructed that the State was required to prove by clear

and convincing evidence that he was mentally ill. We affirm.

                                   I. BACKGROUND

             On February 4, 2010, Decatur police officer T. Tool filed a petition for

emergency involuntary admission as to respondent pursuant to section 3-601 of the Mental

Health and Developmental Disabilities Code (Code) (405 ILCS 5/3-601 (West 2008)). In

his factual basis, Tool stated respondent was found at the Holiday Inn in Decatur after
police were called because respondent was "barking at patrons who were entering and

exiting" the hotel. Tool spoke with respondent, "who was making no sense and stated 'they

are watching me.'" Tool asked respondent who was watching him and respondent "would

change the subject[,] again making no sense as he communicated."

             The petition alleged respondent was (1) mentally ill, (2) reasonably expected

to inflict serious physical harm upon himself or another in the near future, (3) unable to

provide for his basic physical needs so as to guard himself from serious harm without the

assistance of family or outside help, and (4) in need of immediate hospitalization for the

prevention of such harm. Two medical certificates were also filed indicating respondent

was subject to involuntary admission and in need of immediate hospitalization.

             Respondent elected to have his petition heard by a jury, and on February 16,

2010, the trial court conducted respondent's jury trial. Outside the presence of the jury,

the State introduced two exhibits. Exhibit No. 1 was a comprehensive examination and

social investigation report and treatment plan, which indicated that respondent had

"multiple past psychiatric hospitalizations for mental illness" and he was uncooperative

with treatment.    Exhibit No. 2 was a typed one-page document identifying the

"Appropriateness and Availability of Alternative Treatment Settings," "Proposed Treatment

Methods," and "Timetable for Achievement of Treatment Goals." According to this exhibit,

respondent's refusal to take his medication had "consistently been an issue for him and the

major reason for his hospitalizations." His refusal, coupled with his resulting aggressive

behavior, made placement at his home or in a nursing home "impractical." It was

recommended that respondent be hospitalized at Andrew McFarland Mental Health Center



                                           -2-
(McFarland) . The exhibit further indicated that medication was the "essential" treatment

for controlling respondent's symptoms, but he would also be urged to participate in other

means of treatment such as individual, group, occupational, and recreational therapies.

Finally, "[g]iven the severity and chronicity of [respondent]'s condition[,] as well as his

history of noncompliance, a minimum of three months--and probably much longer--of

inpatient treatment will probably be required in order to have any real impact on his

functioning." Our review of the record indicates that the jury was never presented with, or

even aware of, these exhibits.

              After the trial court admitted these exhibits into evidence, the court

summoned the jury, and the State presented the following testimony. Dr. Rohi Patil

testified he had worked as a psychiatrist at St. Mary's Hospital for 34 years. Based on his

examination of respondent, Dr. Patil diagnosed him with paranoid schizophrenia and

opined that respondent was experiencing "severe" psychotic episodes. Respondent was

"very psychotic," hostile, and angry. Dr. Patil described respondent's behavior and

statements as "bizarre." For example, Dr. Patil told respondent he did not understand what

respondent was saying, and respondent replied that only the Central Intelligence Agency

(CIA) could understand him. Dr. Patil said he had examined respondent every day since

his admission, and respondent remained paranoid and delusional and had refused his

medications. In Dr. Patil's opinion, respondent was unable to care for himself in his

current mental state.

              Dr. Patil testified that he had reviewed respondent's mental-health records

and discovered that respondent had suffered from paranoid schizophrenia for "a number



                                           -3-
of years." Respondent was most recently hospitalized for treatment for six months last year

at McFarland in Springfield. According to Dr. Patil, respondent's current prognosis with

treatment was good, but without treatment, it was "poor." Without treatment, there was

"a high likelihood" that respondent "may hurt somebody." Dr. Patil recommended that

respondent be treated at McFarland in order to "protect him and protect other people."

              On cross-examination, Dr. Patil described respondent as follows: "He's a very

sick gentleman, really sick. Needing the help. Has no insight into his problems."

              Shelly Perry, a registered nurse at St. Mary's, testified next for the State. She

described respondent as "threatening [and] aggressive." She described a recent incident

where she had knocked on respondent's door, announcing that she had his oral medication.

Respondent jumped out of bed, "was in [her] face in a very intimidating manner[,]" and

threatened her with violence if she did not leave. She left respondent's room, but he chased

after her to the nurses' station. Perry said respondent was frequently very agitated and

intimidating and has invaded her "personal space." On another occasion, four or five days

after the first incident, Perry said she had to request the services of hospital security due

to respondent's threatening, intimidating and impulsive behavior. He had approached the

nurses' station, asking to leave the unit. When his request was denied, he initially became

agitated, but his behavior escalated until he threatened to assault the staff. Security had

to physically restrain respondent until the staff could inject him with a sedative. Perry said

respondent has told her that he was "the Archbishop to the Pope" and a CIA agent.

              Perry also testified that respondent was not taking care of his personal

hygiene on his own. She said the staff had to order him to take a shower, brush his teeth,



                                             -4-
and comb his hair. Perry had observed respondent threaten other nurses and behave in

what Perry described as a sexually inappropriate manner with other staff members.

Respondent was in a housekeeper's "personal space, kind of looming over her" when he

asked her for her telephone number.          According to Perry, the housekeeper felt

uncomfortable. Perry redirected respondent without incident, informing him he was acting

inappropriately. Perry said on every shift she worked, she observed respondent "looming

over" people, entering into their personal space. He was not always redirected easily. In

those two or three instances where they were unable to redirect him, the staff would use the

gathering of "silent speed teams" or a "show of force," which indicated to respondent that

he was outnumbered.

              Laterrika Bradford, a front-desk employee at the Decatur Holiday Inn,

testified that respondent was a guest at the hotel on February 3, 2010. During Bradford's

3 p.m. to 11 p.m. shift, she saw respondent in the lobby. He approached her at the front

desk and said something to her, but Bradford did not understand what he was saying. She

shook her head and he walked away. She saw respondent approach a male guest who was

walking through the lobby. Respondent grabbed the man's arm. Bradford said the man

looked afraid, but walked away from respondent. Respondent approached Bradford at the

front desk multiple times. Each time he began approaching, Bradford picked up the

telephone and simulated a conversation. Bradford said respondent was scaring her. Each

time respondent saw Bradford on the telephone, he would approach someone else in the

lobby. Bradford estimated that respondent approached approximately 20 different people.

She also saw respondent talking to a wall, but she could not understand anything he said.



                                            -5-
One guest told Bradford that he did not feel comfortable at the hotel with respondent there.

Another guest told respondent to go to his room, but he ignored her, so she called the

police. When the police arrived, respondent refused to go to his room and was generally

uncooperative with their requests.

              Bradford said respondent did not make any aggressive gestures toward her

or the other guests, but she was still afraid of him due to his odd behavior. She admitted

that in terms of physical contact, respondent did nothing more than grab another person's

arm and try to initiate a conversation.

              Stephen J. Rathnow, a licensed clinical professional counselor, testified that

he worked at St. Mary's with the involuntarily admitted patients. Rathnow had difficulty

speaking with respondent because respondent would either refuse to talk to him or would

mutter, ramble, or speak unintelligibly. Rathnow had not seen respondent become

aggressive but had seen him talking and arguing with himself in the hallway. He would

frequently shake his finger at the wall, which Rathnow described as a response to internal

stimuli, such as auditory or visual hallucinations--symptoms that individuals with a

"serious mental illness" often experience. He said initially, respondent refused to shower,

but lately he had complied when directed.         However, respondent continued to be

noncompliant with his treatment. In Rathnow's opinion, if respondent did not remain

hospitalized, his prognosis was "[v]ery poor" and his condition would deteriorate, resulting

in activity that would put himself and others at "great risk."

              Robert K., respondent's brother, testified next for the State. Robert said

respondent has had mental-health issues for "quite a few years." After respondent's



                                            -6-
hospitalization at St. Mary's, Robert visited respondent's home and described it as follows:

              "A water hose was stuck in a washing machine in the

              basement. It flooded out his basement. His stove in the

              kitchen was burnt black. They had to take it out and put it in

              the back yard. It's a wonder he didn't burn the house down.

              His wiring, he's got the plates off the wall, and the wire's

              sticking out, and the receptacle is sticking out. There's water

              dripping from the *** first floor ceiling in the kitchen down in

              onto the floor and on the walls. Scum on the walls. He threw

              his clothes out in the street. He threw his clothes in the front

              yard. He threw his clothes on the roof.

                     ***

                     Electricity right now is shut off. They're trying to get it

              on so they can clean his walls and everything and get it

              straightened up for him."

Robert testified that respondent had been hospitalized at McFarland twice and once at a

facility in Elgin. He said when respondent took his medication, he was fine. When he

refused to take his medication, "he gets in trouble." Robert said respondent "needs help"

and needs to be hospitalized.

              Robert said he and his family tried to watch over respondent at home. Their

mother could see respondent's house from her house, and Robert's daughter and son-in-

law stopped by regularly to check on him. He said respondent's home was usually in



                                             -7-
disarray, but since his hospitalization, it had been condemned by the fire department.

Robert's children were working on the house to get it liveable again.

              At the conclusion of Robert's testimony, the State rested. The trial court

continued the trial until the next day. On February 17, 2010, the trial resumed with

respondent testifying on his own behalf. He said, before staying at the Holiday Inn in

Decatur for two days, he lived in his own home in Lincoln. He explained in detail, but in

rambling fashion, the electrical and plumbing problems at his home. When asked about

his stove, respondent explained that he had unplugged the "self-starter" and the pilot light

"melted," starting a fire. He said the blackness observed on the stove was the "fire

extinguishing material."

              Respondent said he met a "very good friend" and "business people" at the

Holiday Inn. He said he might have grabbed them by the arm to shake their hand in an

attempt to be "real friendly and courteous." The following exchange occurred:

                     "Q. So, everybody you talked to at the hotel, did you

              know them?

                     A. Pretty much or knew where they were from because

              I could tell by their language. I speak many languages. Also--

              (inaudible)--that's beside the point.

                     Q. Okay.

                     A. (Unintelligible utterance) (Unintelligible utterance)

                     Q. Now, with regards to you're being brought into the

              hospital, there was testimony with regards to interaction that



                                            -8-
             you had with the doctor.

                    A. Interaction with the doctor?

                    Q. Dr. Patil. You know?

                    A. Like you had just then? Interaction. What would

             you say, I should continue or leave? Such as a gesture I used.

                    Q. Okay.

                    A. Not warding him off or anything. Speaking good.

                    Q. Were you--uh--willing--did you willingly go to St.

             Mary's?

                    A. No, I did not. As a matter of fact, the officers were

             there, and someone had called an ambulance in the meanwhile.

             The officers were merely very, very ready, I feel, to just fuse the

             factor. They had my records, my license, all my material. I

             didn't read it. Debit card. Whole nine yards. They knew I was

             able to take care of myself. So, the--uh--attendants came.

             They started questioning me such as, 'Do you know red?' You

             know, the old saying, red fire engine, white, whatever they call

             it. Psychology tests. They'd ask me the same questions back

             and forth between the two. I said, [']well, they're watching me

             too closely. Can't answer.['] You know, I--I just don't answer."

Respondent continued with a rambling narrative of his ride in the ambulance to the

hospital. Respondent explained that, once he arrived at the hospital, the staff "demanded



                                            -9-
[he] take a shot. The shot they g[a]ve [him] was with one of these apparatus like--uh--

transfusions. You never give a shot like that. What it was, probably sodium. After [he]

c[a]me to, [he] blacked out." He explained that he had five "bypasses" in the past, but was

otherwise "very healthy." He denied chasing Perry from his room but admitted he had

followed her to the nurses' desk because he "was little upset and wanted to get some activity

anyhow for whatever reason."

              Respondent said he was able to care for his own basic needs. He said:

"[S]ome people do not realize this, but if you do not feel that mental health is curable, then

you should not be in the business of doctoring. You do not have direction or attempt to

cure adults. That's the way I feel, and that's the way I have to designate my feelings."

              On cross-examination, respondent said he had a mortgage loan on his home

from the United States Department of Agriculture in St. Louis or Jacksonville. His account

number was 52. He said the people he spoke with at the Holiday Inn were all "comfortable"

with him. He said: "The lady did not realize the language we were speaking or the actions

we were taking as being friendly." Counsel posed the following questions:

                     "Q. Okay. All right. Mr. K., what is your own business?

              You say–

                     A. Own business?

                     Q. What is it?

                     A. Uh--manufacturing consultant.

                     Q. All right.

                     A. And auto merchandising and merchandising.



                                            -10-
                     Q. All right. Now, you also said you have a lot of

              overseas contacts?

                     A. I did there, for instance. These people were from

              overseas mostly.

                     Q.   All right.   And that was when you worked at

              Caterpillar?

                     A. No, that was just the--uh--motel. I don't want to get

              into my business at Caterpillar. This is strictly not your

              concern at this time."

              Respondent presented no further evidence. After closing arguments, the

matter was submitted to the jury on instructions submitted by the State, without objection.

Respondent did not tender any proposed instructions. The jury subsequently returned a

verdict, finding respondent was a person subject to involuntary admission. The court

entered a written order on the jury's verdict, ordering respondent hospitalized in the

Department of Human Services for a period not to exceed 90 days. This appeal followed.

                                       II. ANALYSIS

                                        A. Mootness

              Initially, we note this case is moot. The trial court entered an order on

February 17, 2010, and limited the enforceability of the order to a period not to exceed 90

days. The 90-day duration has long passed. Thus, we must determine whether this court

is able to grant any meaningful relief to respondent if we addressed the merits of his claims.

See In re Robert F., 396 Ill. App. 3d 304, 310-11, 917 N.E.2d 1201, 1206 (2009). In other



                                             -11-
words, we must determine whether any exception to the mootness doctrine applies here.

In his brief, respondent asserts that all three established exceptions apply to justify our

consideration of an otherwise moot issue. In contrast, the State claims that no exception

applies.

              The supreme court's decision in In re Alfred H.H., 233 Ill. 2d 345, 364, 910

N.E.2d 74, 85 (2009), provides guidance by discussing the applicability of the three

established mootness exceptions to cases of involuntary admissions. Those exceptions are

(1) the collateral-consequences exception, (2) the public-interest exception, and (3) the

capable-of-repetition-yet-avoiding-review exception. Alfred H.H., 233 Ill. 2d at 355-63, 910

N.E.2d at 80-84. Whether a particular case falls within one of the exceptions must be

examined case by case. Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at 80. "This evaluation

must consider all the applicable exceptions in light of the relevant facts and legal claims

raised in the appeal." Alfred H.H., 233 Ill. 2d at 364, 910 N.E.2d at 85.

              First, the collateral-consequences exception does not apply. This exception

is applied in mental-health cases where the respondent could be plagued in the future by

the adjudication at issue. See Alfred H.H., 233 Ill. 2d at 361, 910 N.E.2d at 83. When the

respondent, like respondent here, has been previously committed, there are no obvious

collateral consequences that can be traced exclusively to the adjudication at issue. Alfred

H.H., 233 Ill. 2d at 363, 910 N.E.2d at 84 (the court could not identify any collateral

consequence that could stem solely from the adjudication at issue because the respondent

had previously been committed involuntarily multiple times and had been convicted of

murder). Any collateral consequence that would result from the trial court's involuntary-



                                           -12-
commitment order at issue in this appeal has already attached to respondent due to his

prior hospitalizations.

              However, the second and third exceptions do apply. The capable-of-

repetition-yet-avoiding-review exception applies when (1) the challenged action is of such

a duration that it may not be fully litigated prior to its cessation, and (2) there is a

reasonable expectation that "'the same complaining party would be subjected to the same

action again.'" Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82, quoting In re Barbara H.,

183 Ill. 2d 482, 491, 702 N.E.2d 555, 559 (1998). Although the limited duration of the 90-

day commitment order prevents the case from being fully litigated within the applicable

time frame, the issue presented in this appeal is capable of repetition in a subsequent

action. Because this is not a case merely challenging the sufficiency of the particular

evidence presented, it is possible that the issue of whether the jury was properly instructed

on the State's burden of proof could arise in a subsequent mental-health case brought

against respondent. Cf. Alfred H.H., 233 Ill. 2d at 360, 910 N.E.2d at 83 (there was no

"clear indication of how a resolution of [the sufficiency-of-the-evidence] issue," based on

the specific facts presented in that particular specific adjudication, could be of use to the

respondent in future litigation).

              The public-interest exception also applies for reasons similar to those

explained above. This exception "allows a court to consider an otherwise moot case when

(1) the question presented is of a public nature; (2) there is a need for an authoritative

determination for future guidance of public officers; and (3) there is a likelihood of future

recurrence of the question." Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at 80. First,



                                            -13-
whether a jury is properly instructed on the law, which would include an instruction on the

State's burden of proof at trial, is a question of a public nature. See In re Mary Ann P., 202

Ill. 2d 393, 402, 781 N.E.2d 237, 243 (2002) ("the procedures which must be followed and

the proofs that must be made before a court may authorize involuntary treatment to

recipients of mental health services are matters of a public nature and of substantial public

concern"). Second, there does not appear to be any authoritative determination within

Illinois case law specifically requiring the trial court to instruct the jury in the manner

suggested by respondent in this appeal. Third, it is possible that in the future respondent

himself, or another respondent, will be the subject of a petition for involuntary admission

and demand a trial by jury. In such an instance, the issue of what instructions should be

given may arise. The issue presented in this appeal is not fact driven like a challenge to the

sufficiency of the evidence. Instead, resolution of the issue could be helpful in similar cases

in the future. Thus, we find the question on appeal presents a matter of public importance

and is crucial to the conduct of fair proceedings in the future. See In re Stephenson, 67 Ill.

2d 544, 550, 367 N.E.2d 1273, 1274 (1977) (determining the State's burden of proof in

involuntary-admission proceedings would "contribute to the efficient operation of our

system of justice").

                                        B. Forfeiture

              Because we find this case falls within two recognized exceptions to the

mootness doctrine, we will address this appeal on the merits. As we have stated,

respondent argues here that the order directing him to be involuntarily committed for

treatment must be reversed because the jury was not instructed that the State had to prove



                                             -14-
by clear and convincing evidence that respondent suffered from a mental illness.

               We note that respondent raises this issue for the first time on appeal. His

counsel did not raise the issue in the trial court proceedings, nor did he propose an

instruction that he now argues should have been presented. Generally, an issue not

presented to or considered by the trial court cannot be raised for the first time on review.

In re Barnard, 247 Ill. App. 3d 234, 252, 616 N.E.2d 714, 727 (1993). Specifically, with

regard to a putative jury-instruction error, a respondent forfeits review if he did not object

to the instruction or offer an alternative instruction. People v. Mohr, 228 Ill. 2d 53, 64-65,

885 N.E.2d 1019, 1025 (2008).

               Respondent acknowledges his procedural default, but argues that, "in the

interests of justice," this court should review his claim due to the implication of the

substantial liberty interests involved. In other words, respondent urges our review under

a doctrine analogous to the plain-error doctrine. The plain-error doctrine set forth in

Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) applies to appeals in criminal cases, not

civil cases.

               In the past, this court has addressed issues raised for the first time on appeal.

See In re James, 191 Ill. App. 3d 352, 357, 547 N.E.2d 759, 762 (1989); In re Franklin, 186

Ill. App. 3d 245, 248, 541 N.E.2d 168, 170 (1989); In re Satterlee, 148 Ill. App. 3d 84, 86,

499 N.E.2d 101, 102-03 (1986); In re Whittenberg, 143 Ill. App. 3d 836, 838-39, 493 N.E.2d

662, 663 (1986). However, in each of those cases, this court was asked to search the record

for error upon allegations of a failure to strictly comply with statutory procedural

requirements. In this case, the contention of error does not relate to noncompliance with



                                              -15-
any relevant statutory provision. At issue is respondent's right to a fair trial and whether

the jury was properly instructed regarding the State's burden of proof. Given that the Code

affords a respondent the right to a jury trial, we find the issue presented here of sufficient

importance to justify our review despite respondent's forfeiture. See People v. Burson, 11

Ill. 2d 360, 370-71, 143 N.E.2d 239, 245 (1957), quoting 3 Am. Jur. §248, at 33 ("'The court

may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of

errors appearing upon the record which deprived the accused of substantial means of

enjoying a fair and impartial trial, although no exceptions were preserved or the question

is imperfectly presented'"). As in a plain-error analysis where a criminal defendant fails to

object in the trial court to the claimed error raised for the first time on appeal, we will

determine first whether any error occurred, and if so, whether respondent suffered

prejudice from the error. See People v. Davis, 233 Ill. 2d 244, 274, 909 N.E.2d 766, 782

(2009).

                                 1. Did Any Error Occur?

              In order to prove that respondent was a person subject to involuntary

commitment, the jury must have been presented with clear and convincing evidence that

(1) respondent was suffering from a mental illness, and (2) due to the mental illness, he

may injure himself or others, or is unable to care for himself. In re James, 199 Ill. App. 3d

316, 319, 556 N.E.2d 839, 841 (1990). "'Proof of mental illness alone is not sufficient to

support involuntary admission.'" In re Robin C., 385 Ill. App. 3d 523, 529, 898 N.E.2d 689,

694 (2008), quoting In re Nancy A., 344 Ill. App. 3d 540, 555, 801 N.E.2d 565, 580 (2003).

But, proof of mental illness is most certainly a prerequisite to a respondent's involuntary



                                            -16-
admission.

              The jury must be instructed on the applicable legal rules so as to guide the

deliberations toward a proper verdict. Mohr, 228 Ill. 2d at 65, 885 N.E.2d at 1025. In

addition to giving pattern jury instructions that apply to the particular case, the trial court

should, sua sponte, issue any other instruction that, in the court's discretion, is necessary

to instruct the jury on any element of the case or the State's burden of proof, for it is these

issues that are imperative to a fair trial. See People v. Turner, 128 Ill. 2d 540, 562-63, 539

N.E.2d 1196, 1205 (1989). "The task of a reviewing court is to determine whether the

instructions, considered together, fully and fairly announce the law applicable to the

theories of the State and the defense. [Citations.] The proper standard of review is whether

the trial court abused its discretion." Mohr, 228 Ill. 2d at 65-66, 885 N.E.2d at 1026. "A

trial court abuses its discretion if jury instructions are not clear enough to avoid misleading

the jury or if the jury instructions do not accurately state the law." In re Timothy H., 301

Ill. App. 3d 1008, 1015, 704 N.E.2d 943, 948 (1998).

              In accordance with the definitions of "mental illness" and "person subject to

involuntary admission" set forth in sections 1-129 and 1-119 of the Code (405 ILCS 5/1-129,

1-119 (West 2008)), respectively, the jury was instructed as follows:

                     "Mental illness means a mental or emotional disorder

              that substantially impairs a person's thought, perception of

              reality, emotional process, judgment, behavior, or ability to

              cope with the ordinary demands of life but does not include a

              developmental disability, dementia, or Alzheimer's disease



                                             -17-
absent psychosis, a substance[-]abuse disorder, or an

abnormality manifested only by repeated criminal or otherwise

antisocial conduct.

       The respondent will be subject to involuntary admission

if because of his mental illness, he is unable to provide for his

basic physical needs so as to guard himself from serious harm

without the assistance of family or outside help.

       The respondent will be subject to involuntary admission

if because of his mental illness, he is reasonably expected to

inflict serious physical harm upon himself or another in the

near future which may include threatening behavior or

conduct that places another individual in reasonable

expectation of being harmed.

       The State has the burden of proving by clear and

convincing evidence that the respondent, because of his mental

illness, is unable to provide for his basic physical needs so as to

guard himself from serious harm without the assistance of

family or outside help, or that the respondent, because of his

mental illness, is reasonably expected to inflict serious physical

harm upon himself or another in the near future which may

include threatening behavior or conduct that places another

individual in reasonable expectation of being harmed.



                               -18-
                    In order to find the respondent subject to involuntary

             admission, the State must prove either one or both of the

             following propositions:

                    First proposition: That the respondent, because of his

             mental illness, is unable to provide for his basic physical needs

             so as to guard himself from serious harm, without the

             assistance of family or outside help; or

                    Second proposition: That the respondent, because of

             his mental illness, is reasonably expected to inflict serious

             physical harm upon himself or another in the near future,

             which may include threatening behavior or conduct that places

             another individual in reasonable expectation of being harmed.

                    If you find from your consideration of all the evidence

             that either one or both of these propositions has been proved

             by clear and convincing evidence, you should find the

             respondent subject to involuntary admission.

                    If you find from your consideration of all the evidence

             that neither one of these propositions has been proved by clear

             and convincing evidence, you should find the respondent not

             subject to involuntary admission."

             Indeed, the instructions given to the jury did not explicitly convey that the

State had the burden of proving by clear and convincing evidence that respondent suffered



                                           -19-
from a mental illness. There exists no pattern jury instruction addressing the issue nor was

a nonpattern jury instruction tendered. Though it could be argued that such a proposition

was implicit in the instructions tendered, the jury could have, given the language of the

instructions, reasonably assumed that respondent's mental illness was a given, or an

element it need not resolve, and that it was only a matter of determining whether

respondent's mental illness would result in harm to himself or another, or in him not being

able to care for his basic needs without assistance. Because the instructions did not make

clear a necessary element of the issues involved, namely, the extent of the State's burden

of proof, we find it was error to not include an instruction explicitly conveying each and

every factor that the State was required to prove in order to support a finding that

respondent was a person subject to involuntary admission. See Timothy H., 301 Ill. App.

3d at 1016, 704 N.E.2d at 948 (to ensure a fair trial in an involuntary-treatment case, the

jury should be instructed on the elements ultimately authorizing the involuntary treatment

and the applicable burden of proof).

                     2. Was Respondent Prejudiced by the Error?

              However, our analysis cannot end with a determination of error given

respondent's failure to properly preserve the error for review. We must also determine

whether the error justifies reversal. "'An error in a jury instruction is harmless if it is

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

properly instructed.'" Mohr, 228 Ill. 2d at 69, 885 N.E.2d at 1028, quoting People v.

Pomykala, 203 Ill. 2d 198, 210, 784 N.E.2d 784, 791 (2003). We cannot say that the trial

court's failure to explicitly instruct the jury in the manner argued here by respondent



                                           -20-
denied him his due-process right to a fair trial.

              The evidence presented at trial clearly demonstrated that respondent suffered

from a mental illness. Dr. Patil testified that he diagnosed respondent with paranoid

schizophrenia. Supporting the doctor's diagnosis were the facts that Dr. Patil had (1) met

with respondent every day during his hospitalization, (2) observed and recounted

respondent's symptoms, which were consistent with the diagnosis, and (3) reviewed

respondent's medical records, which indicated that respondent had suffered from the

illness for "a number of years," including prior hospitalizations. A medical opinion as to

the existence of a mental illness is clear and convincing if the expert "indicates the basis of

his diagnosis by having directly observed a respondent on several occasions." In re Tuman,

268 Ill. App. 3d 106, 111, 644 N.E.2d 56, 59-60 (1994).

              Dr. Patil's expert testimony, coupled with (1) the testimony of the remaining

witnesses regarding respondent's behavior and (2) the lack of any evidence to the contrary,

was sufficient for the jury to find that respondent suffered from a mental disorder which

substantially impaired respondent's perception of reality, satisfying the definition of a

mental illness. We find that, given the weight of the evidence presented at trial that

respondent suffered from a mental illness, the fact that the jury was not specifically

instructed that the State was required to prove the existence of a mental illness by clear and

convincing evidence was harmless error. Given the record before us, we find the result of

the trial would not have been any different had the jury been properly instructed.

                                     III. CONCLUSION

              For the foregoing reasons, we affirm the trial court's judgment.



                                             -21-
Affirmed.

KNECHT and TURNER, JJ., concur.




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