                                     2016 IL App (1st) 133656


                                                                            FIRST DIVISION
                                                                            February 16, 2016



No. 1-13-3656

THE PEOPLE OF THE STATE OF ILLINOIS,                  )      Appeal from the
                                                      )      Circuit Court of
       Plaintiff-Appellee,                            )      Cook County.
                                                      )
v.                                                    )      No. 12 CR 1029
                                                      )
JOHN JENKINS,                                         )      Honorable
                                                      )      William J. Kunkle,
       Defendant-Appellant.                           )      Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Cunningham and Connors concurred in the judgment and opinion.


                                             OPINION

¶1     Defendant, John Jenkins, appeals from his conviction after a jury trial of the felony of

resisting or obstructing a police officer.   On appeal, defendant contends his conviction must be

reversed and the cause remanded for a new trial where (1) an element of the offense of the felony

was never submitted to the jury for a determination beyond a reasonable doubt; (2) the

underlying information failed to plead specific facts and the State was allowed to make

corrective amendments in the middle of trial; (3) the trial court erred in refusing defense

counsel's tendered instructions on the lesser-included offense of reckless conduct; and (4) the

trial court failed to properly ensure that the jury would abide by the four principles set forth in

Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).     For the following reasons, we reverse

defendant's conviction and remand for a new trial.
No. 1-13-3656


¶2                                        JURISDICTION

¶3     The trial court sentenced defendant on September 20, 2013.        Defendant filed a motion to

reconsider which was denied on October 30, 2013.        He filed his notice of appeal on November

4, 2013.   Accordingly, this court has jurisdiction pursuant to Article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Oct. 1,

2010) and Rule 606 (eff. Mar. 20, 2009), governing appeals from a final judgment of conviction

in a criminal case entered below.

¶4                                       BACKGROUND

¶5     Defendant was charged by information with one count of aggravated battery of a police

officer and one count of resisting or obstructing a police officer, in connection with his arrest on

December 13, 2011.      Count I alleged that defendant committed aggravated battery in that he

"knowingly caused bodily harm to Police Officer Scott Carter star 7429, to wit: kicked Police

Officer Carter star 7429 about the face, and [defendant] knew the individual battered to be a

peace officer, while [the officer] was performing his official duties."       Count II alleged that

defendant committed the felony offense of resisting or obstructing a peace officer in that he

"knowingly resisted or obstructed the performance of Police Officer Scott Carter star 7429, one

known to defendant to be a peace officer of any authorized act within his official capacity and

was the proximate cause of an injury to said peace officer." The following are the facts relevant

to the determination of this appeal.

¶6     At trial, Officer Scott Carter testified that he and his partner, Officer Jayson Torres, were

patrolling the streets on December 13, 2011, when they encountered a woman who approached

their Chicago police squad car. They had a conversation with the woman and then she entered

the rear passenger side of the squad car.    After making a U-turn they proceeded to the nearby

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intersection of 103rd Street and Wentworth Avenue where they saw defendant standing alone on

the southeast corner.   The squad car pulled up next to him and the officers exited the vehicle

while the woman remained in the rear passenger seat.

¶7     The officers conducted a field interview with defendant after which they placed him

under arrest.   At some point the woman exited the squad car and Officer Torres went to her to

get more information.      Meanwhile, Officer Carter approached defendant to take him into

custody.   He noticed that defendant seemed upset.         As he tried to place defendant's hands

behind his back in order to handcuff him, defendant "stiffened his body and he began flailing his

arms." Officer Carter stated that defendant also was "dead weight in his stance meaning I

would have to do all the work." Officer Carter asked defendant to "stop resisting" but he did

not comply.

¶8     Since he was unable to place him into custody, Officer Carter "utilized opened and closed

hand strikes" which he described as "open palm smacks or fists to the body in order to gain

control of a subject that's not complying." Officer Carter testified that he struck defendant "four

or five" times but "[i]t had no effect on him."       He then "utilized [his] asp stick and gave

[defendant] a few strikes to his leg and his thighs" after which Officer Carter was able to place

handcuffs on defendant.    He described his asp stick as "a metal baton."     Officer Carter testified

that he struggled to place defendant in the squad car.    Officer Torres returned and attempted to

help, but Officer Carter felt he had control of the situation and told Officer Torres to return to the

woman who was about 30 feet away.

¶9     When Officer Carter tried to get defendant into the squad car, defendant "deadened his

weight" so that the officer could not get him into the car.    Eventually, Officer Carter "was able

to push [defendant] and struggle to get him inside the car." Defendant went into the car on his

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side and then turned onto his back with his feet "hanging out of the vehicle." Defendant would

not put his legs inside the car and "[h]e was kicking at [Officer Carter]." Officer Carter told

defendant to put his feet in the car but he did not comply. He stated that defendant kicked at

him, and one kick made contact with the right side of his face, underneath his eye and to the right

of his nose.     Officer Carter believed that defendant might have also kicked his hand because he

"had a hand injury.      But at the time I wasn't sure if he had bit me or he kicked me because I was

bleeding.      But he was kicking erratically.   So I wasn't sure if his foot had did it [or] his hand or

his tooth or whatever."      As he was kicking, defendant said, " 'F*** you, bitch.       I'm not going

to jail.    I'm not going anywhere."

¶ 10       To get defendant under control, Officer Carter continued "using closed hand, opened

hand strikes" on defendant's chest, arms, and face.       He then got into the car with defendant and

"used my OC spray" which is a form of pepper spray.            Officer Carter testified that he utilized

the strikes and the spray after defendant had kicked him.        After using the spray, defendant said

he was sorry and "I give up." Other officers arrived to assist and defendant was eventually

transported from the scene by another unit.

¶ 11       Officer Carter testified that he suffered injuries as a result of defendant's conduct,

specifically "a mark on [his] face" that "kind of darkened up." He "had a small headache later

on that evening" and there was bleeding on his right ring finger.       When asked whether he knew

"for sure" how his finger was injured, Officer Carter responded, "No, I don't." He was treated

by paramedics at the scene who wiped his finger and dressed it.              They also wiped Officer

Carter's face with an alcohol pad and told him to get his head checked because "head injuries are

serious." He stated that he felt pain on his face, his head was hurting and his hand was bleeding



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No. 1-13-3656


and numb, but "it wasn't the most serious to me." Officer Carter did not seek further medical

attention.

¶ 12     Officer Carter testified that as a Chicago police officer, he received training on the use of

force.   He stated that the training instructed officers to utilize "de-escalation of force" in these

types of situations.    He described the method as "[w]hen an offender or somebody you are

trying to gain control of, if he escalates force, you escalate force.   When they de-escalate, you

de-escalate force." Officer Carter was also trained about the effects of the OC spray, which

burns the eyes, can cause temporary blindness, and makes breathing difficult.

¶ 13     On cross-examination, Officer Carter acknowledged that in his arrest report and general

offense case report, he did not indicate that he OC sprayed defendant after being kicked.        The

reports also indicate only that Officer Carter was injured on his right hand.         Officer Carter

stated that he did not go to the hospital right away because he had to process defendant and when

the paramedic asked what his pain level was on a scale of one to ten, he said it was "one."

¶ 14     Officer Torres testified that he was working with Officer Carter on December 13, 2011,

near 103rd Street and Wentworth Avenue, when a woman flagged them down.               After speaking

with the woman, she got into the squad car and they made a U-turn.        When they saw defendant

they stopped and had a conversation with him.        Officer Torres then opened the rear passenger

door and he and the woman walked about 30 feet away where he obtained more information

from her.

¶ 15     Officer Torres returned to the squad car where he observed both Officer Carter and

defendant outside of the vehicle, and Officer Carter attempting to put defendant into the vehicle.

Officer Torres asked defendant to get inside the car and when he attempted to move him,

defendant "deadened his body." Officer Torres then retrieved documents from the trunk of the

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No. 1-13-3656


squad car and returned to the woman for a final conversation.         When he returned to the squad

car for the second time, he observed defendant laying on his back in the backseat and Officer

Carter "had pretty much stepped out of the patrol car kind of holding his face." He noticed that

Officer Carter was putting something back into his belt and overheard him tell dispatch that he

deployed his pepper spray.      Officer Torres stated that when he went to the squad car the first

time, the pepper spray had not yet been deployed.

¶ 16      On cross-examination, Officer Torres stated that he did not see the "spent" can of pepper

spray nor did he inventory the can.    He stated that he did not see Officer Carter being treated in

the ambulance.      He testified that when he tried to get defendant into the squad car, he did not

notice injuries to defendant's face.    He testified that he did not see defendant fighting with

Officer Carter nor did he hear Officer Carter call out for assistance while he was getting

information from the woman.

¶ 17      The State admitted photographs of defendant and Officer Carter taken after their struggle

and then rested.    Defendant moved to dismiss count II, arguing that it was fatally defective for

failing to specify the act defendant committed in resisting and the act Officer Carter was

performing while facing defendant's resistance.       The trial court noted that the motion should

have been filed prior to trial in order not to "sandbag" the State.   Over defendant's objection, the

trial court allowed the State to amend the count.      The State amended the language to include

that defendant flailed his arms and kicked Officer Carter to prevent the officer from handcuffing

him and/or from placing defendant into the squad car, authorized acts within Officer Carter's

authority.    Defendant also moved for a directed verdict as to count I, which the trial court

denied.



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¶ 18      The defense called paramedic Gerald Root to testify.      Root testified that he and his

partner, Jeffrey Thrun, treated Officer Carter on December 13, 2011, at approximately 5:25 p.m.

Thrun treated the officer while Root filled out documents.         Root stated that Officer Carter

complained of a laceration to his right ring finger and he received basic wound care for that

injury.    Officer Carter told them he was not sure how he received the laceration but that he may

have been bitten.     He did not want to go to the hospital and signed a refusal form.        Officer

Carter told Root that he was not experiencing any pain.         Root stated that he did not recall

Officer Carter complaining about being kicked in the face, but acknowledged that the officer

could have had a conversation with Thrun about the incident outside of his presence.

¶ 19      Defendant testified in his defense.   He stated that he was 58 years old.     On December

13, 2011, he was socializing with four or five guys near 103rd Street and Wentworth Avenue.

A police officer in a car approached and informed him that he was under arrest.            Defendant

knew he was speaking to a police officer.         After speaking about 10 minutes, defendant was

handcuffed and led to the officer's car.        After the officer opened the door, defendant "was

turned around, hit in the face and maced and thrown up in the car."            Defendant "start[ed]

hollering and screaming" and he fell backwards into the car.             He testified that he was

completely in the car when he was sprayed "and beated repeatedly in the face.         And [defendant]

started kicking and screaming." Defendant did not intentionally kick the officer, but his face

was "burning" and "hurting" and he could "see nothing."       The officer told defendant to "get out

of the car.    You kicked me." He "scoot[ed]" out of the car and was hit again.            Defendant

stated that he "passed out and woke up in the back of 111th police station."

¶ 20      Defendant was taken for treatment at Roseland Hospital.       When shown photographs

taken of him after the encounter, defendant identified his injuries as a bump on his temple, and

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No. 1-13-3656


cuts on the side of his head, chin, and lip.     Defendant denied he had been drinking at the time.

In rebuttal, the State called Officer James Delisle who testified that he transported defendant to

the police station after the incident and defendant was alert and awake during the transport.

¶ 21   At the jury instructions conference, the State tendered two instructions on resisting or

obstructing a police officer and the defense made no objections.        People's Instruction No. 11

stated as follows:

              "A person commits the offense of resisting or obstructing a peace officer when he

       knowingly resists or obstructs the performance of any authorized act within the official

       capacity of one known to him to be a peace officer."

People's Instruction No. 12 stated as follows:

              "To sustain the charge of resisting or obstructing a peace officer, the State must

       prove the following propositions:

       First Proposition: That Police Officer Scott Carter #7429 was a peace officer; and

       Second Proposition: That the defendant knew Police Officer Scott Carter #7429 was a

       peace officer; and

       Third Proposition: That the defendant knowingly resisted or obstructed the performance

       by Police Officer Scott Carter #7429 of an authorized act within his official capacity."

¶ 22   Defense counsel sought to tender an instruction on the offense of reckless conduct, but

the trial court refused the instruction reasoning that reckless conduct was inconsistent with the

defense's theory that defendant unintentionally or reflexively kicked the officer after being

sprayed.   After closing arguments and deliberations, the jury found defendant not guilty of

aggravated battery of a police officer and guilty for resisting or obstructing a police officer.



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¶ 23   Defense counsel filed a motion for a new trial, alleging that (1) the court erred in denying

defendant's motion to dismiss count II and allowing the State to amend the count in the middle of

trial; (2) the court erred in failing to instruct the jury on the offense of reckless conduct; and (3)

the State failed to prove defendant guilty beyond a reasonable doubt of the felony of resisting or

obstructing where the tendered instruction did not ask the jury to find that defendant proximately

caused Officer Carter's injuries.   The trial court heard argument on the motion at the sentencing

hearing and denied the motion.      After hearing arguments in aggravation and mitigation, the trial

court sentenced defendant to a probation term of two years, with a credit of 648 days for time

served in county jail and on electronic home monitoring.         Defense counsel filed a motion to

reconsider sentence which the trial court denied.     Defendant filed this timely appeal.

¶ 24                                        ANALYSIS

¶ 25   On appeal, defendant contends that his conviction for the felony of resisting or

obstructing an officer must be reversed and remanded for a new trial because the issue of

whether defendant proximately caused the officer's injury, the element that elevates the offense

from a misdemeanor to a felony, was never submitted to the jury.       Defendant acknowledges that

he did not object to the jury instructions given, thus forfeiting review of the issue.      See People

v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for review, defendant must object at

trial and include the issue in a posttrial motion).    However, under the plain error doctrine this

court may consider unpreserved error if "(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.

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Piatkowski, 225 Ill. 2d 551, 565 (2007).      We must first determine, however, whether error

occurred at all. People v. Herron, 215 Ill. 2d 167, 184 (2005).

¶ 26      Defendant challenges the instructions on resisting or obstructing a police officer given

to the jury.   "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 (2008).      In a criminal case,

the trial court must instruct the jury on the elements of the offense, the burden of proof, and the

presumption of innocence.    People v. Pierce, 226 Ill. 2d 470, 475 (2007).

¶ 27   Here, defendant was charged with felony resisting or obstructing the performance of

Officer Scott pursuant to section 31-1(a-7) of the Criminal Code of 1961 (Code) (720 ILCS

5/31-1(a-7) (West 2010)).    To convict a defendant under section 31-1(a-7), the State must prove

beyond a reasonable doubt that defendant knowingly resisted or obstructed an officer in the

performance of an authorized act and his violation proximately caused an injury to the officer.

720 ILCS 5/31-1(a), (a-7) (West 2010). Proof of the proximate cause of injury element elevates

the conviction from a Class A misdemeanor to a Class 4 felony.      Id.   Although defendant was

charged and ultimately convicted of the felony, the instructions given to the jury did not include

the proximate cause of injury element. The failure to instruct the jury on an element of the

offense was error. People v. Fonder, 2013 IL App (3d) 120178, ¶ 22; Neder v. United States,

527 U.S. 1, 8 (1999) (error occurred where jury instruction omitted an element of the offense).

¶ 28   We next determine whether the plain error exception to the waiver rule applies.

Defendant argues that review is proper under the second prong because the error was grave and

affected the fair determination of his case, citing Fonder.   However, the United States Supreme

Court found that where a jury instruction omits an element of the offense, the error "does not

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No. 1-13-3656


necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining

guilt or innocence" and the issue may be subject to harmless error analysis.           (Emphasis in the

original.) Neder, 527 U.S. at 9.       See also People v. Davis, 233 Ill. 2d 244, 273 (2009)       (our

supreme court agreed with Neder's determination).           Therefore, we will address whether to

review this issue as plain error under the first prong.

¶ 29      Under this prong, defendant must show that the evidence was so closely balanced that the

error alone threatened to tip the scales of justice against him regardless of the seriousness of the

error.    Piatkowski, 225 Ill. 2d at 565.   According to section 31-1(a-7) of the Code, a person is

guilty of the Class 4 felony of resisting or obstructing a peace officer if his "violation was the

proximate cause of an injury to a peace officer."     720 ILCS 5/31-1(a)(7) (West 2010).

¶ 30      Officer Carter testified that defendant resisted being taken into custody.    He struggled to

put handcuffs on defendant and "utilized opened and closed hand strikes *** in order to gain

control of" defendant.     He then used his asp stick, striking defendant a few times on his leg and

his thighs after which Officer Carter was able to place handcuffs on defendant.           After placing

defendant in handcuffs, Officer Carter attempted to get defendant into the squad car.

Eventually, he "was able to push [defendant] and struggle to get him inside the car."        Defendant

went into the car on his side and then turned onto his back with his feet "hanging out of the

vehicle."     Officer Carter told defendant to put his feet in the car but he did not comply.

Instead, defendant kicked at him, and one kick made contact with the right side of his face.

Officer Carter believed that defendant might have also kicked his hand because he "had a hand

injury.     To get defendant under control, Officer Carter continued "using closed hand, opened

hand strikes" on defendant's chest, arms, and face.       He then got into the car with defendant and



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No. 1-13-3656


used pepper spray.     After using the spray, defendant apologized and gave up.        Officer Carter

testified that he utilized the strikes and the spray after defendant had kicked him.

¶ 31     Officer Torres testified he observed that initially defendant resisted getting into the squad

car.    When Officer Torres attempted to move him, defendant "deadened his body." After

retrieving documents from the trunk, Officer Torres returned to the woman for a final

conversation.    When he returned to the squad car a second time, he observed defendant laying

on his back in the backseat and Officer Carter "kind of holding his face." He noticed that

Officer Carter was putting something back into his belt and overheard him tell dispatch that he

deployed his pepper spray.       Officer Torres, however, did not see defendant fighting with

Officer Carter nor did he hear Officer Carter call out for assistance while he was getting

information from the woman.

¶ 32     In his testimony, defendant stated that he was handcuffed and led to the officer's car but

he disagreed that he was resisting the arrest.    He testified that after the officer opened the door

to the squad car, defendant "was turned around, hit in the face and maced and thrown up in the

car."    He testified that he was completely in the car when he was sprayed "and beated

repeatedly in the face."    He was kicking and screaming because his face was "burning" and

"hurting" and he could "see nothing." The officer told defendant to "get out of the car.         You

kicked me."

¶ 33     The conflicting testimony at trial shows that in determining whether defendant's kick to

Officer Carter's face or hand resulted from his resisting arrest, the factfinder must make a

judgment of credibility in favor of either defendant or Officer Carter.    Officer Torres did not see

defendant fighting with Officer Carter.      No other witnesses testified to the incident.     Where

judgment depends solely on the credibility of witnesses at trial, the evidence is closely balanced.

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People v. Steidl, 177 Ill. 2d 239, 256 (1997); People v. Johnson, 2012 IL App (1st) 091730, ¶ 48.

Since defendant has proved that an error occurred and the evidence is closely balanced, prejudice

is presumed and reversal of defendant's conviction is required.       Johnson, 2012 IL App (1st)

091730, ¶¶ 48, 51 (finding that in this situation " '[t]he error is actually prejudicial, not

presumptively prejudicial' " (quoting Herron, 215 Ill. 2d at 193)).

¶ 34   Due to our disposition of this appeal, we need not consider defendant's remaining

contentions.

¶ 35                                      CONCLUSION

¶ 36   For the foregoing reasons, the judgment of the circuit court is reversed and the cause

remanded for further proceedings.

¶ 37   Reversed and remanded.




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