                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hale, 2012 IL App (4th) 100949




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    TONI C. HALE, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0949


Filed                      March 29, 2012


Held                       In a prosecution for threatening a public official and aggravated battery
(Note: This syllabus       arising from defendant’s attacks on a county correction officer after she
constitutes no part of     was placed in a holding cell at a jail, the evidence was sufficient to
the opinion of the court   sustain her conviction for aggravated battery, notwithstanding her
but has been prepared      contention that the evidence failed to show the officer was insulted or
by the Reporter of         provoked by her conduct, since the jury could infer the officer was
Decisions for the          insulted and provoked when defendant bit him on the arm, but her
convenience of the         conviction for threatening a public official was reversed and the cause
reader.)
                           was remanded for a new trial where the jury was not instructed on the
                           element that her threat had to “contain specific facts indicative of a
                           unique threat to the person, family or property of the officer and not a
                           generalized threat of harm.”


Decision Under             Appeal from the Circuit Court of Adams County, No. 09-CF-392; the
Review                     Hon. Michael R. Roseberry, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded for further
                           proceedings.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Janieen R. Tarrance, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Jonathan H. Barnard, State’s Attorney, of Quincy (Patrick Delfino,
                           Robert J. Biderman, and Anastacia R. Brooks, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE TURNER delivered the judgment of the court,
                           with opinion.
                           Justices Pope and Knecht concurred in the judgment and opinion.


                                             OPINION

¶1           In October 2009, a jury found defendant, Toni C. Hale, guilty of single counts of
        threatening a public official and aggravated battery. In December 2009, the trial court
        sentenced her to five years for threatening a public official and seven years for aggravated
        battery.
¶2           On appeal, defendant argues (1) the trial court erred in giving certain jury instructions,
        (2) the State failed to prove her guilty beyond a reasonable doubt, and (3) her sentences were
        excessive. We affirm in part, reverse in part, and remand for further proceedings.

¶3                                        I. BACKGROUND
¶4          In July 2009, the State charged defendant by information with four counts of aggravated
        battery (counts I, II, III, and V) (720 ILCS 5/12-4(b)(18) (West 2008)) and one count of
        threatening a public official (count IV) (720 ILCS 5/12-9 (West 2008)). Count IV alleged
        defendant committed the offense of threatening a public official in that she knowingly and
        willfully conveyed directly to correctional officer Brian Doellman, a public official, a
        communication containing a threat that would place Doellman or a member of his immediate
        family in reasonable apprehension of immediate or future bodily harm by stating “she knew
        where we lived and slept and she would kill us when she got out and that she would have our
        blood on her hands.” Count V alleged defendant committed the offense of aggravated battery
        in that she, in committing a battery, knowingly made contact of an insulting or provoking
        nature with Doellman in that she bit and spit on him, knowing him to be a peace officer
        engaged in the execution of his official duties. Defendant pleaded not guilty.
¶5          In October 2009, defendant’s jury trial commenced. The State proceeded to trial on
        counts IV and V. Brian Doellman testified he worked as a correctional officer with the
        Adams County sheriff’s department. On July 11, 2009, Doellman was on duty when an
        “aggravated” and “angry” defendant was brought into the jail. Doellman helped other officers
        put defendant in a holding cage. Once inside, defendant’s demeanor “got worse” and she
        pounded on the door and yelled threats. Defendant then took off her tank top and tied it

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       around her neck and the top of the cage. Fearing she might be trying to hang herself,
       Doellman and other officers entered the cage. Defendant swung at Officer Kevin Taute.
       Doellman and other officers grabbed defendant’s arms and put her in a restraint chair.
       Defendant then bit Doellman on his arm. Doellman testified it “startled” him, “like it was
       going to hurt,” and he pulled his arm away. Thereafter, defendant started spitting, and
       officers placed a spit mask on her. After defendant was restrained, she “continued making
       threats” and stated “she was going to kill us and that she knew where we lived and that she
       would have our blood on her hands.” Doellman stated he took the threat seriously.
¶6         Quincy police officer Kevin Taute testified defendant was yelling profanities at the
       officers when they placed her in the holding cell. While placing defendant in the restraint
       chair, “she made a movement with her mouth to attempt to bite [Officer Doellman’s] arm.”
       She also stated “that when she gets out she’s going to kill him and she knew where they
       lived.”
¶7         Penny Mast, a corrections officer with the Adams County sheriff’s department, testified
       she saw defendant bend down “like she was going to bite Officer Doellman.” While she was
       restrained in the chair, defendant stated “she was going to kill us” and “she was going to have
       our blood on her hands.” Defendant also said she knew where the officers lived.
¶8         April Stovall, an employee at the Adams County jail, testified she heard Officer
       Doellman say that defendant bit him. Defendant also made threats against him, stating she
       was “going to beat his ass” and “cut his throat.”
¶9         Correctional officer Timothy O’Dear testified that on July 13, 2009, defendant was
       informed of the charges by another officer. Upon hearing the charges, she became agitated
       and said “she was going to cut their throats and play in their warm blood and that she did not
       threaten them. She promised them.”
¶ 10       Correctional officer Brian Boden testified defendant became very upset upon hearing the
       nature of the charges and stated she “did not touch those motherfuckers.” She stated she
       “threatened them” and told them she “would cut their throats and play in their warm blood.”
¶ 11       Defendant did not testify. Following closing arguments, the jury found defendant guilty
       on counts IV and V. The State then moved to dismiss counts I, II, and III.
¶ 12       In December 2009, the trial court sentenced defendant to five years on count V and seven
       years on count IV. The court ordered the sentences to run concurrently with each other.
       Thereafter, defendant appealed.
¶ 13       In January 2010, defendant filed a motion for a new trial and a motion to reduce sentence.
       In April 2010, this court remanded the cause for a ruling on defendant’s motions. People v.
       Hale, No. 4-09-0968 (Apr. 16, 2010) (unpublished order under Supreme Court Rule 23). In
       October 2010, appointed counsel filed a motion for a new trial, which the trial court denied
       in November 2010. This appeal followed.

¶ 14                                     II. ANALYSIS
¶ 15                                   A. Jury Instructions
¶ 16      Defendant argues the trial court erred in giving a jury instruction that allowed the jury to

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       convict her of threatening a public official without making a finding on all the necessary
       elements of the offense. We agree.
¶ 17       Initially, we note defendant recognizes her failure to properly preserve this issue for
       review. Defense counsel did not object to the failure to provide the proper jury instruction,
       although the alleged error was raised in a posttrial motion. See People v. Hestand, 362 Ill.
       App. 3d 272, 279, 838 N.E.2d 318, 324 (2005) (a defendant must object at trial and raise the
       issue in a posttrial motion to preserve the issue for review). Defendant concedes the issue is
       forfeited but asks this court to review it under the plain-error doctrine.
¶ 18       The plain-error doctrine permits a reviewing court to consider unpreserved error under
       the following two scenarios:
           “(1) a clear or obvious error occurred and the evidence is so closely balanced that the
           error alone threatened to tip the scales of justice against the defendant, regardless of the
           seriousness of the error, or (2) a clear or obvious error occurred and that error is so
           serious that it affected the fairness of the defendant’s trial and challenged the integrity
           of the judicial process, regardless of the closeness of the evidence.” People v. Sargent,
           239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1058 (2010).
       Under both prongs of the plain-error analysis, the burden of persuasion remains with the
       defendant. People v. Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220, 1227 (2009). “ ‘In most
       cases, a court of appeals cannot correct the forfeited error unless the defendant shows that
       the error was prejudicial.’ ” People v. Thurow, 203 Ill. 2d 352, 363, 786 N.E.2d 1019, 1025
       (2003) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). As the first step in the
       analysis, we must determine whether any error occurred at all. People v. Thompson, 238 Ill.
       2d 598, 613, 939 N.E.2d 403, 413 (2010).
¶ 19       “The purpose of jury instructions is to provide the jury with the correct legal principles
       applicable to the evidence, so that the jury may reach a correct conclusion according to the
       law and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81, 902 N.E.2d 571, 589 (2008).
       Generally, the decision to give certain jury instructions rests with the trial court, and that
       decision will not be reversed on appeal absent an abuse of that discretion. People v. Lovejoy,
       235 Ill. 2d 97, 150, 919 N.E.2d 843, 872 (2009). However, “the 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, 861 N.E.2d 936, 939 (2006).
¶ 20       Section 12-9 of the Criminal Code of 1961 (Criminal Code) sets out the offense of
       threatening a public official. 720 ILCS 5/12-9 (West 2008).
           “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[.]” 720 ILCS 5/12-
                    9(a)(1)(i) (West 2008).
       A “public official” includes a “sworn law enforcement or peace officer.” 720 ILCS 5/12-


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       9(b)(1) (West 2008). When a threat is made 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 2008).
¶ 21        In this case, the State’s information alleged defendant knowingly and willfully conveyed
       to Officer Doellman, a public official, a communication containing a threat that would place
       Doellman or a member of his immediate family in reasonable apprehension of immediate or
       future bodily harm. See 720 ILCS 5/12-9(a)(1)(i) (West 2008). The jury was instructed, in
       part, as follows:
                “A person commits the offense of threatening public officials when she knowingly
            and wilfully delivers or conveys, directly or indirectly, to a public official, by any means,
            a communication containing a threat that places the public official in reasonable
            apprehension of immediate or future bodily harm and the threat was conveyed because
            of the performance or nonperformance of some public duty or the threat was conveyed
            because of the hostility of the person making the threat toward the status or position of
            the public official.
                The term ‘public official’ includes a sworn law enforcement or peace officer.”
       Here, Officer Doellman was an employee of the Adams County sheriff’s department. Thus,
       he was a law-enforcement officer and thereby a “public official.” Because of his position as
       a law-enforcement officer, the jury should have received instructions that “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 2008). Without
       it, the jury was not properly instructed on the applicable law.
¶ 22        The State concedes the jury was not properly instructed but argues the omission of an
       element of the offense was harmless beyond a reasonable doubt because the evidence as to
       that element was overwhelming. However, fundamental fairness requires that the jury be
       instructed on the elements of the offense charged. People v. Ogunsola, 87 Ill. 2d 216, 222,
       429 N.E.2d 861, 864 (1981). “It is of the essence of a fair trial that ‘the jury not be permitted
       to deliberate a defendant’s guilt or innocence of the crime charged without being told the
       essential characteristics of that crime.’ ” Ogunsola, 87 Ill. 2d at 222, 429 N.E.2d at 864
       (quoting People v. Lewis, 112 Ill. App. 2d 1, 11, 250 N.E.2d 812, 818 (1969)).
            “[A]n omitted jury instruction constitutes plain error only when the omission creates a
            serious risk that the jurors incorrectly convicted the defendant because they did not
            understand the applicable law, so as to severely threaten the fairness of the trial. This rule
            does not require that defendant prove beyond doubt that her trial was unfair because the
            omitted instruction misled the jury to convict her. It does require that she show that the
            error caused a severe threat to the fairness of her trial.” (Emphasis in original.) People
            v. Hopp, 209 Ill. 2d 1, 12, 805 N.E.2d 1190, 1197 (2004).
¶ 23        In this case, we find defendant has shown the error caused a severe threat to the fairness
       of her trial. The trial court gave the following instruction to the jury:
                “To sustain the charge of threatening a public official, the State must prove the
            following propositions:
                First Proposition: That the defendant knowingly and wilfully delivered or conveyed,

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           directly or indirectly, to Brian Doellman, by any means a communication containing a
           threat that places the public official in reasonable apprehension of immediate or future
           bodily harm; and
               Second Proposition: That Brian Doellman was a public official at the time of the
           threat; and
               Third Proposition: That the threat was conveyed because of the performance or
           nonperformance of some public duty or hostility of the person making the threat toward
           the status or position of the public official; and
               Fourth Proposition: That when the defendant conveyed the threat, she knew Brian
           Doellman was then a public official.
               If you find from your consideration of all the evidence that each one of these
           propositions has been proved beyond a reasonable doubt, you should find the defendant
           guilty.
               If you find from your consideration of all the evidence that any one of these
           propositions has not been proved beyond a reasonable doubt, you should find the
           defendant not guilty.”
       This instruction is in similar form to the one set forth in Illinois Pattern Jury Instructions,
       Criminal, No. 11.50 (4th ed. 2000). One of the elements outlined above in the offense of
       threatening a public official deals with the communication of a “threat.” But the criminal
       statute, as it applied in this case, required more than just a “threat.” When a threat is
       conveyed to a sworn law-enforcement officer, section 12-9(a-5) of the Criminal Code states
       “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.” (Emphases added.) 720 IlCS
       5/12-9(a-5) (West 2008). Subsection (a-5) was added to the statute by Public Act 95-466 and
       became effective on June 1, 2008 (Pub. Act 95-466, § 5 (eff. June 1, 2008) (2007 Ill. Laws
       6734, 6735)).
¶ 24       When a sworn law-enforcement officer is involved, it is clear that whether a defendant
       made a threat containing specific facts indicative of a unique threat to an officer is an element
       of the offense. The State should include this element in the charging document, and the jury
       should be instructed on the element. Based on the instruction given in this case, the jury was
       deprived of the guidance needed to decide whether defendant’s threat contained specific facts
       indicative of a unique threat to Officer Doellman. It is possible the jury concluded defendant
       made a generalized threat to Doellman, but the statute requires more before she could be
       found guilty beyond a reasonable doubt. A clear and obvious error occurred here, and it was
       one that affected the fairness of defendant’s trial.
¶ 25       In this case, defendant satisfied her burden of proving the plain-error exception to the
       general forfeiture rule. The inadequate jury instruction was a clear and obvious error, and the
       error undermined the fairness of her trial and challenged the integrity of the judicial process.
       Accordingly, we reverse defendant’s conviction for threatening a public official. We remand
       for a new trial before a properly instructed jury. See People v. Stromblad, 74 Ill. 2d 35, 41,
       383 N.E.2d 969, 972 (1978).
¶ 26       Although we are reversing defendant’s conviction, we find the evidence was sufficient

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       to prove defendant guilty beyond a reasonable doubt of threatening a public official. Thus,
       no double-jeopardy violation will occur in the event of a new trial. In re R.A.B., 197 Ill. 2d
       358, 369, 757 N.E.2d 887, 894 (2001). Our ruling does not constitute a determination of
       defendant’s guilt that would be binding on retrial. People v. Naylor, 229 Ill. 2d 584, 611, 893
       N.E.2d 653, 670 (2008).

¶ 27                                B. Sufficiency of the Evidence
¶ 28       Defendant argues the State failed to prove her guilty beyond a reasonable doubt of the
       offenses of threatening a public official and aggravated battery. Because we are remanding
       for a new trial on the offense of threatening a public official, we will focus our attention in
       this section on whether the State’s evidence was sufficient to find defendant guilty of
       aggravated battery. On that issue, defendant claims the evidence failed to show Officer
       Doellman was insulted or provoked by her. We disagree.
¶ 29       “ ‘When reviewing a challenge to the sufficiency of the evidence in a criminal case, the
       relevant inquiry is whether, when viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of the crime
       beyond a reasonable doubt.’ ” People v. Ngo, 388 Ill. App. 3d 1048, 1052, 904 N.E.2d 98,
       102 (2008) (quoting People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331
       (2006)). The trier of fact has the responsibility to determine the credibility of witnesses and
       the weight given to their testimony, to resolve conflicts in the evidence, and to draw
       reasonable inferences from that evidence. People v. Jackson, 232 Ill. 2d 246, 281, 903
       N.E.2d 388, 406 (2009). “[A] reviewing court will not reverse a criminal conviction unless
       the evidence is so unreasonable, improbable[,] or unsatisfactory as to create a reasonable
       doubt of the defendant’s guilt.” People v. Rowell, 229 Ill. 2d 82, 98, 890 N.E.2d 487, 496-97
       (2008).
¶ 30       The State charged defendant with aggravated battery of a peace officer. 720 ILCS 5/12-
       4(b)(18) (West 2008). The elements of this offense are found in the descriptions of both
       battery and aggravated battery. “A person commits battery if he intentionally or knowingly
       without legal justification and by any means *** (2) makes physical contact of an insulting
       or provoking nature with an individual.” 720 ILCS 5/12-3(a) (West 2008). If a person
       commits a battery against an individual whom he knows to be an officer of the state or a unit
       of local government engaged in the performance of his authorized duties, it constitutes an
       aggravated battery. 720 ILCS 5/12-4(b)(18) (West 2008).
¶ 31       In this case, Officer Doellman, along with other officers, was in the process of restraining
       an agitated defendant in a chair. While Doellman was holding her left shoulder onto the
       chair, defendant turned her head, “put her teeth on [Doellman’s] arm,” and bit him. Doellman
       testified it “startled” him, “like it was going to hurt,” and he pulled his arm away. This court
       has noted “[t]he victim does not have to testify he or she was provoked; the trier of fact can
       make that inference from the victim’s reaction at the time.” People v. Wrencher, 2011 IL
       App (4th) 080619, ¶ 55, 959 N.E.2d 693, 703. Here, the jury could infer Doellman perceived
       defendant’s placing her teeth on his forearm was a dangerous or possibly injurious act, as
       shown by pulling his arm away, and one that was insulting and provoking. Viewing the


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       evidence in the light most favorable to the prosecution, we find the jury could reasonably
       have found defendant guilty of aggravated battery beyond a reasonable doubt.

¶ 32                                         C. Sentencing
¶ 33        Defendant argues her sentences must be vacated because the maximum sentences were
       excessive and were imposed under the mistaken belief they were not maximum sentences.
       Confining our analysis solely to the aggravated-battery conviction, we disagree.
¶ 34        The Illinois Constitution mandates “[a]ll penalties shall be determined both according
       to the seriousness of the offense and with the objective of restoring the offender to useful
       citizenship.” Ill. Const. 1970, art. I, § 11. “ ‘In determining an appropriate sentence, a
       defendant’s history, character, and rehabilitative potential, along with the seriousness of the
       offense, the need to protect society, and the need for deterrence and punishment, must be
       equally weighed.’ ” Hestand, 362 Ill. App. 3d at 281, 838 N.E.2d at 326 (quoting People v.
       Hernandez, 319 Ill. App. 3d 520, 529, 745 N.E.2d 673, 681 (2001)).
¶ 35        A trial court has broad discretion in imposing a sentence. People v. Chester, 409 Ill. App.
       3d 442, 450, 949 N.E.2d 1111, 1118 (2011). “A reviewing court gives great deference to the
       trial court’s sentencing decision because the trial judge, having observed the defendant and
       the proceedings, has a far better opportunity to consider these factors than the reviewing
       court, which must rely on the cold record.” People v. Evangelista, 393 Ill. App. 3d 395, 398,
       912 N.E.2d 1242, 1245 (2009). Thus, the court’s decision as to the appropriate sentence will
       not be overturned on appeal “unless the trial court abused its discretion and the sentence was
       manifestly disproportionate to the nature of the case.” People v. Thrasher, 383 Ill. App. 3d
       363, 371, 890 N.E.2d 715, 722 (2008).
¶ 36        In the case sub judice, a jury found defendant guilty of aggravated battery, a Class 2
       felony (720 ILCS 5/12-4(e)(2) (West 2008)). A defendant convicted of a Class 2 felony is
       subject to a sentencing range of three to seven years in prison. 730 ILCS 5/5-8-1(a)(5) (West
       2008). As the trial court’s seven-year sentence for aggravated battery was within the relevant
       sentencing range, we will not disturb the sentence absent an abuse of discretion.
¶ 37        In considering factors in mitigation, the trial court found defendant’s conduct did not
       cause or threaten serious physical harm and assumed imprisonment would entail excessive
       hardship on her dependents. However, as to factors in aggravation, the court found defendant
       had failed at probation and a “strong sentence” was necessary to deter others from
       committing the same crime. We find no abuse of discretion in the court’s sentence.
¶ 38        Defendant argues the trial court erred when, at the hearing on the posttrial motion, it
       stated it “did not enter a sentence for the maximum.” However, at the sentencing hearing, the
       prosecutor had argued for the “maximum sentence” of 17 years in prison based on a 7-year
       sentence on the Class 2 felony and a consecutive 10-year extended-term sentence on the
       Class 3 felony of threatening a public official. The court disagreed with the prosecutor and
       noted a 10-year extended-term sentence was not permitted on the Class 3 felony. Moreover,
       the court ordered the sentences to run concurrently with each other rather than consecutively.
       Thus, the court did not impose the “maximum” sentence it could have and as the State
       requested. We find no error in the sentence imposed by the court on defendant’s aggravated-

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       battery conviction.

¶ 39                                   III. CONCLUSION
¶ 40       For the reasons stated, we affirm in part, reverse in part, and remand for further
       proceedings. As part of our judgment, we award the State its $50 statutory assessment against
       defendant as costs of this appeal.

¶ 41      Affirmed in part and reversed in part; cause remanded for further proceedings.




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