                                   2013 IL App (1st) 093547-B

                                                                             FOURTH DIVISION
                                                                             November 14, 2013

Nos. 1-09-3547, 1-09-3549 (cons.)

THE PEOPLE ex rel.                                              )    Appeal from the
THE CITY OF CHICAGO,                                            )    Circuit Court of
                                                                )    Cook County
               Petitioner-Appellee,                             )
                                                                )    03 MC1-19280102
       v.                                                       )    03 MC1-19280103
                                                                )
LE MIRAGE, INC., a/k/a La Mirage All Nite Studio, Ltd.,         )    Honorable
DWAIN JOHNSON KYLES, and CALVIN HOLLINS,                        )    Daniel T. Gillespie,
JR.,                                                            )    Judge Presiding.
                                                                )
               Respondents-Appellants.                          )


       JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
       Presiding Justice Howse and Justice Lavin concurred in the judgment and opinion.

                                            OPINION

¶1     Respondents Dwain J. Kyles and Calvin Hollins, Jr., owned and operated a first-floor

restaurant (Epitome) and second-floor nightclub (Epitome 2 or E2) at 2347 South Michigan

Avenue in Chicago, Illinois. On July 19, 2002, the circuit court ordered respondents to vacate

the second floor because of building code violations. They continued to operate E2 until

February 17, 2003, when 21 people were crushed to death in a panic after security guards sprayed

pepper spray in an attempt to subdue a fight. Following a jury trial, respondents were convicted

of indirect criminal contempt and sentenced to two years' imprisonment based on their violation

of the circuit court's order. They now raise evidentiary, jury instruction, and sentencing

challenges. We affirm their convictions, but, because the trial court improperly relied on the

nightclub tragedy in aggravation, we vacate respondents' sentences and remand for a new
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sentencing hearing.

                                        ¶ 2 BACKGROUND

¶3      This case comes to us on remand from the Illinois Supreme Court. See People ex rel.

City of Chicago v. Le Mirage, Inc., 2013 IL 113482. The supreme court reversed the holding by

another panel of this court that respondents were not proven guilty beyond a reasonable

doubt—an issue not raised before our court on appeal—and remanded with instructions for us to

consider the issues raised by respondents. Id. ¶ 78.

                                    ¶ 4 Building Code Violation

¶5      On April 29, 2002, a City of Chicago (City) building inspector discovered that E2's

mezzanine VIP rooms1 were constructed improperly and without a permit. On June 18, 2002, the

City filed a building code enforcement action against Lesly Motors, Inc., respondents' landlord.

Le Mirage, Inc., the company through which respondents owned and operated E2, was

voluntarily impleaded.

¶6      Four court dates followed. On July 19, 2002, the parties initially agreed "not to occupy

the second floor V.I.P. rooms." When the court asked if there were any other issues, the City

presented building inspector Marguerite Shahi, who testified regarding her July 16, 2002,

inspection of 2347 South Michigan Avenue:

                 "Q. [City] Other than the items that we already addressed, is there anything else

        that's dangerous and hazardous that you would like to address to the Court?




        1
            The parties use "mezzanine," "skyboxes," and "VIP area" interchangeably. We do the
same.

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             A. [Shahi] One is the substandard partitions that were used to build the V.I.P.

       rooms that are supported by the boisterous [sic] roof. Everything I've learned is that there

       should be absolutely no weight on structural members especially suspended from a

       boisterous [sic] roof ceiling. So, the whole second floor would be dangerous and

       hazardous, since it was built without plans and permits to begin with. And also, there's

       suspended weight from the boisterous [sic] roof.

                Q. And an Order today to not occupy that second floor would abate your

       concerns?

                A. Yes.

                Q. Are there any other violations besides the second floor that you are concerned

       about?

                A. No. The second floor is the major one."

Following Shahi's testimony, the court announced, "Your agreement is no occupancy of the

second floor. You have to keep it vacant." The court also issued a written order stating,

"Mandatory order not to occupy 2nd floor."

¶7     On the following court date, August 9, 2002, the City noted that a hearing "as to the

conditions on the second floor" had been scheduled, but requested a continuance. The court

granted a continuance and issued an order stating, "Mandatory order not to occupy 2nd floor of

subject premises."

¶8     On September 6, 2002, the City said its motion "that the second floor and the mezzanine

not be occupied" had previously been granted. The court issued an order stating, "All previous



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orders remain in full force and effect."

¶9     On October 25, 2002, the City noted the court had issued an "order not to occupy the

mezzanine and the second floor VIP rooms." When the court asked if there were any dangerous

and hazardous conditions, the City responded, "They would be abated, if the Court does continue

the previous orders not to occupy the mezzanine, the second floor, and the VIP rooms." Kyles,

present in court that day, agreed. The court announced, "All prior orders to stand," and issued an

order stating, "All prior orders to remain in full force and effect." The matter was continued until

March 7, 2003.

                                 ¶ 10 Indirect Criminal Contempt

¶ 11   The E2 tragedy occurred in the early hours of February 17, 2003. The following day, the

City filed a petition for adjudication of indirect criminal contempt against Kyles and Le Mirage,

Inc. The City later amended the petition, adding Hollins and omitting Le Mirage. After a

mistrial, another panel of this court rejected respondents' double jeopardy arguments, but ordered

that a different judge preside over the retrial. See People ex rel. City of Chicago v. Hollins, 368

Ill. App. 3d 934 (2006). The instant appeal concerns the results of that retrial.

                                       ¶ 12 Motion in Limine

¶ 13   Respondents listed a half-sheet and a letter from their attorney among exhibits they

intended to introduce at trial. The half-sheet stated, "BA [by agreement] Mirage will not occupy

2nd floor VIP rooms." In pertinent part, attorney Bradley Prendergast's letter to attorney Thomas

Royce stated, "The judge entered an Order that the second floor mezzanine not be used, the VIP

room, until there is a hearing." The City moved in limine to exclude this evidence, arguing that,



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because the order itself was controlling, the half-sheet and letter were irrelevant and would only

confuse the jury. Hollins argued that the exhibits would show that the building court's order was

ambiguous; Kyles argued they would show that he did not willfully violate the order, because he

misunderstood its scope. Following a hearing, the trial court granted the City's motion, finding

that the order alone was controlling, and that the half-sheet and letter could not be introduced to

show respondents' lack of willfulness.

                                           ¶ 14 Jury Trial

¶ 15   Building inspector Marguerite Shahi testified that, based on her July 16, 2002 inspection,

she believed E2's VIP skyboxes were "dangerous and hazardous" and built without a permit. On

July 19, 2002, she asked the building court to close the entire second floor, not just the VIP

rooms. Shahi said that she was concerned that the weight of a "live load" could cause the trusses

to become unstable, and the skyboxes, which extended 15 feet over the dance floor, could

collapse onto the second floor. The City introduced the July 19, 2002 transcripts and order.

¶ 16   Shahi further testified that, when she returned to E2 on August 8, 2002, none of the

violations had been corrected. On August 9, 2002, the court entered an order stating, "Mandatory

order not to occupy second floor of subject premise." She visited E2 again on September 5,

2002, but did not gain entry. The following day, she again went to court, and the trial judge

stated that all previous orders were to remain in full force and effect. She visited E2 a final time

on October 23, 2002, where she met Hollins, who identified himself as the building's owner and

said that he "wanted to know what he had to do to comply in order to lift the order to use the

second floor." Shahi showed him a crack in one of the trusses and told him that they could



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collapse from supporting too much weight. She advised him to obtain plans and permits for

repairing the trusses and the skybox VIP rooms. None of the violations had been corrected, nor

had permits been obtained, by October 23, 2002. On October 25, 2002, the court entered another

order stating that all previous orders would remain in effect.

¶ 17   City building inspector Julio Montilla testified that he accompanied Shahi to E2 on

September 5 and October 23, 2002. According to Montilla, the skyboxes were suspended from

fractured roof trusses and were not original to the building. Montilla identified several

photographs he took of the damaged trusses.

¶ 18   Attorney Demetrius Kare represented the City in the underlying building code action. He

testified that the City intended for the entire second floor, not just the VIP rooms, to be closed.

Accordingly, on July 19, 2002, the circuit court ordered respondents not to occupy the second

floor. That day, respondents' attorney, Bradley Prendergast, did not wait to receive a copy of the

court's order. The court entered a similar order on August 9, 2002. Kyles was present in court on

October 25, 2002, when Kare again asked that no one occupy the second floor or the mezzanine.

Kare denied that he and respondents ever entered into an agreed order.

¶ 19   Lesly Benodin testified that he leased 2347 South Michigan Avenue through his

company, Lesly Motors, Inc., to respondents, but had no role in operating E2. He identified a 10-

year lease, in which respondents agreed to be responsible for all repairs and additions. The

mezzanine was built prior to respondents' lease, but respondents added the skyboxes. When

Benodin received notice of building code violations at 2347 South Michigan Avenue, he hired

attorney Ed Morris, who told him that the entire second floor must be closed. Benodin, in turn,



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told Hollins that the entire second floor must be closed.

¶ 20   Detective John Lucki testified that he and Detective Ed McMahon interviewed Hollins on

February 17, 2003, in the presence of Hollins' attorney, Thomas Royce. Hollins said that he was

E2's operations manager and had an office in E2's second-floor loft. Hollins also told him that he

and Kyles had a joint bank account and had obtained a $150,000 loan to finance E2 operating

costs. Finally, Hollins told him that, since August 2002, a company called Envy had hosted

engagements on Fridays and Sundays and hosted a ladies' night on February 16, 2003. Detective

Lucki also spoke with Kyles, who stated that he was an attorney and E2's owner and confirmed

that he and Hollins had a joint bank account. Kyles further stated that Envy hosted ladies' nights

at E2 on Sundays, including February 16, 2003, but he had little knowledge of the event.

According to Kyles, Envy normally provided entertainment and security for these events.

¶ 21   Stan Bochnowski testified that he served as vice president of commercial loans at

Lakeside Bank in 2000. That year, Hollins, individually and on behalf of Le Mirage, Inc.,

mortgaged a Darien, Illinois, property for $150,000 to cover E2's operating costs. Hollins

repeatedly told Bochnowski that he was E2's owner and general manager.

¶ 22   Seven witnesses for the City testified that E2's main floor and mezzanine were occupied

post-July 19, 2002. Sherman Bramlett testified that he provided E2's security through a private

contractor every Sunday from October through December of 2002. During that time, hundreds of

clubgoers occupied E2, and people routinely entered the VIP rooms. The VIP area was never

blocked by ropes, signs, or security guards. On one occasion, a man fell through the floor of the

VIP area, his feet dangling above the floor below.



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¶ 23 Kionna Henry and Lashanda Hudson testified that they visited E2 seven and three times,

respectively, post-July 19, 2002. On weekends, the club would fill to nearly 800 people. They

never visited the VIP skyboxes, but observed people in that area. No ropes, signs, or security

guards barred access to the VIP area. On February 16, 2003, the crowd swelled to over 1,000,

including approximately 50 or 60 people in the VIP rooms.

¶ 24   Chiquita Henry testified that she attended E2 approximately 10 to 15 times post-July 19,

2002. She visited the VIP area several times and observed others in that area. Nothing indicated

that the VIP rooms were closed. On February 16, 2003, approximately 1,000 people were in the

club, including 100 to 150 in the VIP room.

¶ 25   Shanethia Allen testified that she and her friends were admitted into E2's VIP rooms on

February 16, 2003. No signs or security guards barred access to the VIP area. Approximately 15

or 20 people were in the VIP area. Over 1,000 people filled the club that night.

¶ 26   Asonjin Gamble testified that she went to E2 over 50 times after July 19, 2002, and

occasionally visited the mezzanine VIP rooms, where the club operated an additional bar. There

was no indication that the VIP rooms were closed. The club was crowded on February 16, 2003.

Gamble went to the VIP rooms that night. Again, nothing indicated that the VIP rooms were

closed, and over 30 people were in the VIP area that night.

¶ 27   Off-duty police officer Samuel Smith testified that he and three others visited E2 on

February 14, 2003, and occupied a VIP skybox. There were 15 or 20 people in the skyboxes. No

security guard or sign barred access to the VIP area.

¶ 28   Attorney Bradley Prendergast testified for the defense that he represented respondents on



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July 19, 2002, because Thomas Royce, with whom he shared an office, was unavailable.

According to Prendergast, prior to the hearing, he, the City, and Lesly Motors' attorney developed

an agreed order barring access only to the VIP rooms. No one mentioned closing the entire club.

He admitted, however, that he did not obtain a copy of the court's written order that day.

Although Shahi testified that the "whole second floor" should be vacated, and the judge said,

"Your agreement is no occupancy of the second floor," Prendergast believed that "second floor"

referred to the mezzanine VIP rooms. When he returned to his office, he dictated a letter to

Royce indicating that the court had barred access to the VIP rooms. The court's order was faxed

to the office he shared with Royce on July 23, 2002.

¶ 29   Attorney Thomas Royce testified that he represented respondents in the underlying

building code enforcement action. Because he was unavailable for the July 19, 2002, court date,

Prendergast went in his stead and left a letter on Royce's desk describing the proceedings. Royce

received a copy of the court order on approximately July 24th or 25th and noticed that it was

inconsistent with Prendergast's letter. He then looked at the July 19, 2002 half-sheet and found

that it was consistent with the letter, but inconsistent with the order. The letter and half-sheet

both referenced the VIP rooms, while the order referenced the second floor. Sometime between

July 19, and August 9, 2002, he told Kyles about this inconsistency, but advised him to vacate

only the VIP section. On his visit to E2, Royce observed a sign barring access to the VIP rooms.

Royce appeared in court on August 9, 2002, but never brought the inconsistency to the court's

attention. The judge signed another order that day prohibiting occupancy of E2's second floor.

Royce testified that the first time he heard that the club should be closed was in February of



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2003. He acknowledged that occupying VIP rooms would be a violation of the court's order.

¶ 30   Kyles testified that he is a lawyer and E2's owner-operator. According to Kyles, when Le

Mirage built the VIP skyboxes in 2000 or 2001, its contractors and architects said that permits

were unnecessary, because the changes were cosmetic and the mezzanine was stable, having

previously been used for engine part storage. When, in July of 2002, he learned of E2's building

code violations, Kyles voluntarily impleaded himself. He contacted Royce to represent him on

July 19, 2002, but Prendergast appeared in Royce's stead. After the hearing, Royce instructed

Kyles to vacate the mezzanine VIP area. Royce informed him that the court's order and half-

sheet were inconsistent, but Kyles never asked to see either. At an E2 staff meeting, Kyles told

his employees that the mezzanine VIP rooms were unavailable. Kyles admitted that he possessed

no documents memorializing this order to his staff.

¶ 31   Kyles attended the building code enforcement proceedings on October 25, 2002,

believing that E2 had reached an agreement with the City, but the City still insisted that he file

plans and permits. Although he agreed on that date that previous orders should stand, Kyles

believed that the previous orders barred only occupancy of the mezzanine VIP area. Neither the

City, nor Royce, nor Benodin informed Kyles that the club was supposed to be closed.

¶ 32   Between July 19, 2002, and February 16, 2003, Kyles continued to operate E2.

According to Kyles, he was unaware that he was violating a court order and believed that the

order barred only access to the mezzanine VIP rooms. In 2002, Marco Flores from Envy began

leasing E2 to host events on Fridays and Sundays, including a ladies' night. Flores hired a

company called Team 1 Security to provide E2 security. Kyles attempted to bar mezzanine



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access with a sign and a rope, but that was insufficient. Eventually, Team 1 Security stationed a

guard to prevent access to the VIP area. He never heard that someone fell through the skybox

floor.

¶ 33     Kyles stated that he and Hollins never tried to conceal their business partnership, but was

impeached on this point: the City confronted Kyles with an affidavit pertaining to a 2002 liquor

license action, in which Kyles swore that Hollins was merely a consultant. Kyles admitted that

he did so because Hollins was "legally ineligible" to manage E2.

¶ 34     Kyles further testified that he never asked his managers whether they leased the

mezzanine VIP area in their contracts. When confronted with a contract signed by Janielle

Taylor leasing E2's VIP area post-July 19, 2002, Kyles claimed that he did not recognize the

contract and that Taylor was an independent contractor who lacked authority to accept contracts.

He was impeached by a memorandum in which he described her as a promotion and events

manager who negotiated agreements for the club.

¶ 35     According to Kyles, it was not until February 17, 2003, that he learned that E2 was

supposed to be closed. Kyles never obtained a permit for the skyboxes.

                                     ¶ 36 Verdict and Sentence

¶ 37     During the jury instruction conference, the City requested Illinois Pattern Jury

Instructions, Criminal, No. 5.11 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 5.11), which

concerns acts an individual commits on behalf of a corporation. Kyles and Hollins objected,

arguing that Le Mirage was no longer a respondent and that neither individual had tried to hide

behind a corporation. The trial court instructed the jury pursuant to IPI Criminal 4th No. 5.11



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over respondents' objections.

¶ 38   Approximately 30 minutes into deliberations, the jury sent a note asking for a definition

of the term "willfully." The court instructed the jury that it had "received all the instructions and

evidence the Court has admitted. Please continue to deliberate." The jury found respondents

guilty of indirect criminal contempt.

¶ 39   Prior to sentencing, respondents argued that the trial court should bar any evidence of the

February 17, 2003 tragedy, because the contempt charges concerned violation of a building court

order unrelated to the tragedy, and because they had already been acquitted of manslaughter

charges stemming from the tragedy. The City maintained that punishment should be measured

by the gravity of the contemptuous conduct and the power to punish contempt is not limited by

statute. The trial court denied respondents' motions, but asked the City to "streamline" the

evidence regarding the tragedy. The court further noted that evidence of the tragedy was

excluded during the guilt phase because "the facts of that night would be so prejudicial that it

would outweigh the probative factor," but that "those facts are entitled to be presented at

sentencing."

¶ 40   The City argued in aggravation, "We are here six years later, 21 people dead. And the

reason those 21 people are dead is because these two men willfully violated four court orders that

had been put in place to protect the public." After discussing the building code violation, the

City concluded, "The bottom line is that because of their willful and wanton violations of these

court orders we have 21 people dead. As such, Judge we ask you and we believe that justice

cries out for it, both of these men should receive substantial periods of incarceration."



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¶ 41 Kyles argued in mitigation that the City argued that "they are concerned about how 21

black people lost their lives in February of 2003 in a tragic accident which by the way the Illinois

Appellate Court already has told you had nothing to do with the building code violations." Kyles

continued, "to want to see them behind bars for a tragic accident is improper and not supported

by anything in the case law ***. ***And no case has been cited that indicates that building code

violations result and may [sic] spending time in jail. It doesn't exist."

¶ 42   After respondents presented several mitigation witnesses, the City again argued, "Judge,

you know, I respect all the people that stood up today and, you know, I respect everything they

said. I just want to remind your Honor that there are 21 people who couldn't stand up today.

They were a terrible loss to the community. *** [B]ut for what [respondents] did, those 21

people would be alive today *** if they had stepped up and if they had closed the place which

they chose not to do. *** They need to be told and they need to be sent a message about those 21

people who would still be alive here today."

¶ 43   The trial court sentenced respondents to two years' imprisonment. The court did not

explicitly refer to the E2 tragedy during its pronouncement, but noted that probation would be

improper given the "serious nature of this matter."

                                         ¶ 44 Instant Appeal

¶ 45   Respondents timely appealed, and their appeals were consolidated. On November 16,

2011, this court reversed the trial court's judgment, finding that the City failed to prove them

guilty beyond a reasonable doubt. See People ex rel. City of Chicago v. Le Mirage, Inc., 2011 IL

App (1st) 093547, ¶ 67. The Illinois Supreme Court granted leave to appeal and found that



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respondents had not challenged the sufficiency of the evidence and, even if they had, the

evidence was sufficient to support their convictions. The court reversed this court's judgment

and remanded with instructions to consider the issues raised by respondents. See People v. Le

Mirage, Inc., 2013 IL 113482, ¶ 78. The supreme court also held that the building court's order

"not to occupy 2nd floor" referred to the second floor of the building located at 2347 South

Michigan Avenue, not the mezzanine VIP area located within E2. Id. ¶ 67.

                                         ¶ 46 ANALYSIS

¶ 47   Respondents raise evidentiary, jury instruction, and sentencing issues on appeal. We

affirm their convictions, but, because the trial court improperly considered the E2 tragedy in

aggravation, we vacate respondents' sentences and remand for a new sentencing hearing.

                                          ¶ 48 I. Evidence

¶ 49   Respondents argue that the trial court erred in excluding evidence that would have

clarified the building court's ambiguous order and demonstrated that they did not willfully violate

that order. Hollins also argues that the trial court erred in admitting other-crimes or bad-

character evidence. We disagree.

                              ¶ 50 A. Half-Sheet and Attorney Letter

¶ 51   The City moved in limine to bar introduction of the building court's half-sheet entry and

Prendergast's letter to Royce, arguing that the order was controlling. The trial court barred

admission of this evidence, but allowed testimony regarding both the half-sheet and the letter.

Respondents argue on appeal that the trial court erred in granting the State's motion.

Specifically, they contend the half-sheet and letter would have clarified the building court's



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ambiguous order. Alternatively, they claim this evidence should have been admitted to show that

they did not willfully violate the order. The City responds that the order was controlling and the

half-sheet and letter would have only confused the jury.

¶ 52   The admissibility of evidence is within a trial court's sound discretion. People v. Illgen,

145 Ill. 2d 353, 364 (1991). A trial court's decision regarding the admission of evidence will not

be overturned absent an abuse of discretion. Id.

¶ 53   Indirect criminal contempt requires (1) the existence of a clear court order, and (2) the

willful violation of that order. People v. Totten, 118 Ill. 2d 124, 138 (1987). As to the first

prong, would-be contemnors must receive fair and precise notice of what an order prohibits.

O'Leary v. Allphin, 64 Ill. 2d 500, 513-14 (1976). Courts must not punish the violation of "a

command that defies comprehension." International Longshoremen's Ass'n, Local 1291 v.

Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76 (1967); see also People v. Wilcox, 5 Ill. 2d

222, 228 (1955) ("[T]he mandate of the court must be clear before disobedience can subject a

person to punishment.").

¶ 54   Respondents first argue that the order was ambiguous and the half-sheet and letter should

have been admitted to clarify its meaning. They base their argument on the parol evidence rule.

See CFC Investment, L.L.C. v. McLean, 387 Ill. App. 3d 520, 528-29 (2008) (describing the

rule). Under that rule, where a writing is unambiguous on its face, it must be interpreted without

reliance on parol evidence. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999).

If, however, the writing is susceptible to multiple meanings, parol evidence may be admissible to

resolve the ambiguity. Id. at 462-63. Illinois applies the "four corners rule," in which courts look



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to the language of the writing alone to determine whether it is ambiguous. Lease Management

Equipment Corp. v. DFO Partnership, 392 Ill. App. 3d 678, 685 (2009).

¶ 55   We are not convinced that the trial court abused its discretion in refusing to admit the

letter and half-sheet to clarify the building court's order. Even if we were, our supreme court has

unanimously held that the order was unambiguous:

       "[T]he building court's orders were 'so specific and clear as to be susceptible of only one

       interpretation.' The '2nd floor' of the 'subject premises'—the building at '2347 S.

       Michigan Ave [citation].'—was not to be occupied. The '2nd floor' of the 'subject

       premises' means the '2nd floor' of the building; it does not mean the mezzanine level of

       the nightclub, as respondents argue. Therefore, the building court's order in this case was

       sufficiently certain, clear, and concise to support a finding of contempt." Le Mirage, Inc.,

       2013 IL 113482, ¶ 67.

For similar reasons, we find that the order was facially unambiguous for purposes of the parol

evidence rule. We therefore reject respondents' contention that the letter and half-sheet were

admissible to resolve the order's ambiguity.

¶ 56   Turning to the second element of indirect criminal contempt, respondents argue that, even

if the order was unambiguous, the letter and half-sheet were relevant to show that they did not

willfully violate the building court's order. Our supreme court described this issue succinctly: "If,

despite the clarity of the orders, respondents had a good-faith basis to believe that the orders did

not prohibit operating the nightclub on the second floor of the building, then the jury could have

concluded that their disobedience of the orders was not willful." Le Mirage, Inc., 2013 IL



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113482, ¶ 73.

¶ 57   Respondents are not similarly situated for purposes of this question. There is no evidence

that Hollins either saw the letter or half-sheet or communicated with his attorneys or Kyles about

this evidence. See Le Mirage, Inc., 2013 IL 113482, ¶ 70. There is therefore no reason to

believe that the letter or half-sheet affected his mental state. Indeed, the only evidence at trial

regarding Hollins' mental state showed that he knew the second floor must be vacated. Benodin

testified that he told Hollins that the second floor must be closed, and Shahi testified that Hollins

asked her what he must do to reopen the second floor. Thus, Hollins' argument that the letter and

half-sheet should have been admitted to show that he did not willfully violate the order is

unconvincing.

¶ 58   Kyles, however, presented evidence that, relying on Royce's advice, he believed the order

barred only occupancy of the mezzanine VIP area. Notably, there is no evidence that Kyles

actually saw the letter or half-sheet. Because Kyles did not see these documents, this evidence

would not have had a direct bearing on whether he willfully violated the building court's order.

To the extent that this evidence indirectly affected his mental state via his attorneys, he was

allowed to fully explore that theory at trial. Royce testified that, relying on the letter and half-

sheet, he told Kyles that there was an inconsistency between the order, the half-sheet, and

Prendergast's letter, but advised him to vacate only the VIP section. Given this, we cannot say

that the trial court abused its discretion in refusing to admit the letter and half-sheet. See People

v. Morgan, 197 Ill. 2d 404, 455 (2001) (a trial court abuses its discretion only where its decision

is " 'arbitrary, fanciful, or unreasonable' or where no reasonable man would take the trial court's



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view" (quoting People v. Illgen, 145 Ill. 2d 353, 364 (1991)). Because the trial court properly

excluded the letter and half-sheet as irrelevant to the order's ambiguity and respondents' mental

states, we need not address respondents' contention that the letter and half-sheet did not

constitute hearsay.2

¶ 59   Even if we believed that the trial court erred in barring admission of the letter and half-

sheet, any error would be harmless. Evidentiary errors are harmless if the record affirmatively

shows that the errors were not prejudicial. People v. Carlson, 92 Ill. 2d 440, 449 (1982).

Although the letter and half-sheet were not admitted, respondents were still allowed to elicit

testimony regarding this evidence and its effect upon their mental states. The jury therefore

heard respondents' theories that the order was ambiguous and that their violation of the order was

not willful. Ultimately, there was ample evidence that respondents willfully violated the order.

Even accepting respondents' contention that they believed the order only prohibited occupancy of

the mezzanine VIP area, seven witnesses for the City testified that both E2's main floor and

mezzanine were regularly occupied post-July 19, 2002. Respondents therefore willfully violated

the order even as they perceived it. There is no reasonable probability that the jury in this case

would have acquitted had the letter and half-sheet been admitted at trial.

                         ¶ 60 B. Other-Crimes or Bad-Character Evidence



       2
         Kyles briefly argues that the trial court erred in quashing a subpoena for Judge Lynch,
who presided over the building court proceedings, and who could have testified regarding the
order's meaning. He abandons this argument in his reply brief. Regardless, the order was not
ambiguous, and judges do not normally testify regarding their thinking upon issuing orders. See
Thomas v. Page, 361 Ill. App. 3d 484, 488 (2005) (judges may not testify regarding their mental
processes in reaching a decision). We are therefore unpersuaded by Kyles' argument.

                                                 18
Nos. 1-09-3547, 1-09-3549 cons.
¶ 61   Kyles testified at trial that he and Hollins never tried to conceal their business

relationship. The City impeached Kyles with an affidavit pertaining to a 2002 liquor license

action, in which he swore that Hollins was merely a consultant. Kyles admitted that he did so

because Hollins was "legally ineligible" to manage E2. Hollins now argues that the City

improperly elicited other-crimes or bad-character evidence, where Kyles testified that Hollins

was "legally ineligible" to own or operate a business with a liquor license, and the City

compounded the harm by referencing his ineligibility in closing argument. The City responds

that Hollins forfeited this claim, the phrase "legally ineligible" is innocuous, and any harm was

mitigated by a limiting instruction.

¶ 62   We turn first to the City's forfeiture claim, the sole basis of which is that Hollins failed to

object to each question concerning his legal ineligibility. To preserve an error for appellate

review, a criminal defendant must object at trial and include the issue in a posttrial motion.

People v. Enoch, 122 Ill. 2d 176, 186 (1988). The issue raised on appeal need not be identical to

the objection raised at trial. People v. Lovejoy, 235 Ill. 2d 97, 148 (2009). Rather, a claim is

preserved so long as the trial court had an opportunity to address the essential claim. Id.

¶ 63   In this case, the City impeached Kyles with an affidavit he submitted to the City of

Chicago:

               "Q. [City] And in that affidavit you say to her that since remodeling and reopening

       as Epitome, Calvin Hollins has been retained by the corporation as a consultant for the

       restaurant services and operation. Mr. Hollins receives a check for $750 per week for his

       services.


                                                 19
Nos. 1-09-3547, 1-09-3549 cons.
               That's what you told her, right? ***

               A. [Kyles] That's correct.

               Q. And the reason you did this is because you knew that Mr. Hollins was legally

       ineligible to be a manager in your bar. You knew that, didn't you?

               A. Yes."

Following this colloquy, a sidebar was conducted, during which Hollins' attorney stated, "There

is a motion in limine in this case and they're butting right up against it." The City responded, "I

always warned them the magic day could come up if he got up here and told me lies. I am not

going to mention one word about manslaughter. I'm just going to say legally ineligible. That's

my words. Wasn't that cute, Judge?"

¶ 64   We believe Hollins preserved this issue for appellate review. The trial court had an

opportunity to address Hollins' claim that discussion of his ineligibility was unfairly prejudicial.

He was not required to object to every variation on this question. We therefore reject the City's

forfeiture argument.

¶ 65   Turning to the merits, Hollins' argument that the City improperly introduced other-crimes

evidence is misplaced. The City never mentioned his manslaughter conviction, nor does the

phrase "legally ineligible" necessarily suggest a criminal record or other bad acts. Thus, People

v. Harris, 224 Ill. App. 3d 649 (1992), which Hollins cites, is distinguishable, as the prosecution

there introduced the defendant's prior criminal convictions.

¶ 66   Here, the City, at worst, presented evidence of Hollins' bad character in that he was

"legally ineligible" to manage a bar. Character evidence is generally inadmissible when a


                                                 20
Nos. 1-09-3547, 1-09-3549 cons.
defendant's character is not at issue. People v. Lucas, 151 Ill. 2d 461, 483 (1992). Evidence of a

defendant's bad character is inadmissible until the defendant presents evidence of his good

character. Id. at 484.

¶ 67    We agree with the City that the phrase "legally ineligible" is innocuous. The phrase was

introduced during the City's impeachment of Kyles regarding his claim that he never tried to hide

his business relationship with Hollins. There is no reason to think that the jury, as Hollins

suggests, believed that he "had some horrid unmentioned skeleton in his closet." The City never

explored or even hinted why Hollins was ineligible to manage a bar.

¶ 68    Regardless, any damage would have been cured by the trial court's limiting instruction,

which directly addressed this issue:

        "You heard evidence regarding an affidavit by Respondent Kyles and statements

        contained in that affidavit. Evidence regarding that affidavit and statements

        contained in that affidavit are limited and they may not be considered by you

        against Respondent Hollins."

Accordingly, we reject Hollins' claim that the City improperly presented other-crimes or bad-

character evidence.

                                       ¶ 69 II. Jury Instructions

¶ 70    Respondents argue that the trial court erred in instructing the jury regarding

accountability for acts performed on behalf of a corporation pursuant to Illinois Pattern Jury

Instructions, Criminal, No. 5.11 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 5.11). They

also contend that the trial court erred in failing to instruct the jury on the legal definition of the


                                                   21
Nos. 1-09-3547, 1-09-3549 cons.
term willfully pursuant to IPI Criminal 4th No. 5.01B, after the jury asked the court to define that

term. Although the trial court erred in the second instance, we hold that the error was harmless.

¶ 71   The purpose of instructions is to inform the jury of the correct legal rules and guide it in

reaching a verdict. People v. Lovejoy, 235 Ill. 2d 97, 150 (2009). Instructions are proper if there

is some evidence in the record to justify them. People v. Mohr, 228 Ill. 2d 53, 65 (2008). Even

very slight evidence of a theory will justify giving an instruction. People v. Hari, 218 Ill. 2d 275,

296 (2006). Instructions not supported by either the evidence or the law should not be given. Id.

¶ 72   Whether an instruction should be given is a matter within the trial court's discretion.

Mohr, 228 Ill. 2d at 65. A trial court's decision regarding jury instructions should not be

disturbed absent an abuse of discretion. In re Timothy H., 301 Ill. App. 3d 1008, 1015 (1998). A

trial court abuses its discretion when the instructions may mislead the jury or fail to accurately

state the law. Id.

                                 ¶ 73 A. IPI Criminal 4th No. 5.11

¶ 74   During the jury instruction conference, the City requested IPI Criminal 4th No. 5.11,

which concerns acts an individual commits on a corporation's behalf. Kyles and Hollins

objected, arguing that Le Mirage was no longer a respondent, and that neither individual had

tried to hide behind their corporation. The trial court gave the instruction over respondents'

objections.

¶ 75   Respondents argue on appeal that the trial court erred in instructing the jury pursuant to

IPI Criminal 4th No. 5.11, because the City offered no evidence that respondents acted on Le

Mirage's behalf and, although the City named Le Mirage as a respondent in its original petition, it


                                                 22
Nos. 1-09-3547, 1-09-3549 cons.
later amended the petition to omit Le Mirage. According to respondents, the instruction could

have confused the jury. The City argues that Kyles forfeited review of this issue by failing to

expressly object to the instruction. The City further argues that respondents were Le Mirage's

sole shareholders and acted on their corporation's behalf.

¶ 76   Kyles did not forfeit this issue. Kyles' attorney repeatedly argued during the jury

instruction conference that IPI Criminal 4th No. 5.11 was inapplicable, insisting that "no one ***

has tried to hide behind a corporate shield, Judge." He further contended that the jury would be

confused because even "[t]he lawyers don't understand this instruction." Kyles also included this

argument in his posttrial motion. Even if he had not, substantial defects in jury instructions may

be noticed despite failure to make a timely objection. People v. Thurman, 104 Ill. 2d 326, 329

(1984). We therefore turn to the merits.

¶ 77   Because corporations are "persons" for purposes of criminal liability, a corporation may

be held accountable for its agents' crimes and vice versa. 720 ILCS 5/2-15, 5-4, 5-5 (West 2002).

Specifically, section 5-5 of the Criminal Code of 1961 provides in pertinent part that a person "is

legally accountable for conduct which is an element of an offense and which, in the name or in

behalf of a corporation, he performs or causes to be performed, to the same extent as if the

conduct were performed in his own name or behalf." 720 ILCS 5/5-5 (West 2002). This

provision means that " 'an individual acting for a corporation is fully responsible for his own

criminal acts and is punishable accordingly.' " People v. Parvin, 125 Ill. 2d 519, 528 (1988)

(quoting Ill. Ann Stat., ch. 38, ¶ 5-5, Committee Comments, at 320 (Smith-Hurd 1972)); see also

People v. Runner, 266 Ill. App. 3d 441, 445 (1994) (corporate agents may be held criminally


                                                23
Nos. 1-09-3547, 1-09-3549 cons.
liable for acts they commit on the corporation's behalf); People v. Floom, 52 Ill. App. 3d 971,

977 (1977) (same).

¶ 78      IPI Criminal 4th No. 5.11, which is based on section 5-5, states that "[a] person is legally

responsible for conduct which he performs or causes to be performed in the name of or on behalf

of a corporation to the same extent as though the conduct were performed in his own name or

behalf." Respondents base their argument on the Committee Note to IPI Criminal 4th No. 5.11,

which states, "Give when an individual is jointly charged with his corporate employer or is

charged individually for conduct committed on behalf of his corporate employer." (Emphasis

added.)

¶ 79      Kyles alone argues that instructing the jury pursuant to IPI Criminal 4th No. 5.11 was

improper, because he, Hollins, and Le Mirage were not jointly charged. Kyles is correct in one

regard: Le Mirage was omitted from the City's third amended petition. But he ignores the word

"or" in the Committee Note. Id. Charging a corporation and its agents jointly is only one ground

for instructing a jury under IPI Criminal 4th No. 5.11.

¶ 80      Even setting this aside, Kyles' theory that he cannot be held accountable for acts he

performed on Le Mirage's behalf unless Le Mirage is charged is untenable. The City's decision

not to prosecute Le Mirage is inconsequential. A person may be held accountable for the acts of

another regardless of whether the other person has been prosecuted. 720 ILCS 5/5-3 (West

2002); see People v. Schmitt, 131 Ill. 2d 128, 139 (1989) (Illinois does not distinguish between

principals and accessories, and the indictment or conviction of one accomplice is not a

prerequisite to the indictment or conviction of another). In particular, prosecution of a


                                                   24
Nos. 1-09-3547, 1-09-3549 cons.
corporation is not a condition precedent to prosecution of the corporation's agent. See Ill. Ann.

Stat., ch. 38, ¶ 5-5, Committee Comments, at 294 (Smith-Hurd 1989) (agent's prosecution,

conviction, and sentence are not dependent on the corporation's); see also 1 John F. Decker &

Christopher Kopacz, Illinois Criminal Law § 3.12, at 3-59 (5th ed. 2012) ("The fact that the

corporation itself is not or cannot be prosecuted is immaterial, for prosecution of the principal

(the corporation) is no longer a condition precedent to prosecution of the accomplice (the

corporate agent) in Illinois.").

¶ 81    Kyles further argues that IPI Criminal 4th No. 5.11 improperly allowed the jury to hold

him accountable for acts performed by third parties, including Envy Productions, while he knew

nothing of the building code violations. In other words, Kyles maintains that IPI Criminal 4th

No. 5.11 allowed the jury to find him guilty without proof of either an actus reus or a mens rea.

Kyles misreads IPI Criminal 4th No. 5.11. Neither the instruction on its face nor the law

underlying the instruction supports this conclusion. The instruction itself states that a person is

accountable for conduct "which he performs or causes to be performed in the name or on behalf

of a corporation." (Emphasis added.) IPI Criminal 4th No. 5.11. Kyles would therefore not be

liable for others' acts of which he was unaware. See 2 Wayne R. LaFave, Substantive Criminal

Law §13.5, nn. 113-15 (2012) (accomplice liability cannot rest on one's status as a corporate

officer alone, but like any accountability offense requires proof that crimes were committed at

one's direction or with one's permission). The instruction merely prevents corporate agents from

hiding behind the excuse that they were merely acting "in the name of or on behalf of a

corporation." IPI Criminal 4th No. 5.11; see also Parvin, 125 Ill. 2d at 528 (section 5-5(a)


                                                 25
Nos. 1-09-3547, 1-09-3549 cons.
ensures that " 'an individual acting for a corporation is fully responsible for his own criminal acts

and is punishable accordingly' "(quoting Ill. Ann. Stat., ch. 38, ¶ 5-5, Committee Comments, at

294 (Smith-Hurd 1989))). As in all accountability cases, the trier of fact was still required to find

an actus reus—the promotion or facilitation of an illegal act. See People v. Peterson, 273 Ill.

App. 3d 412, 419-20 (1995) (accountability requires proof that an accomplice in some way aided,

encouraged, or incited a crime).

¶ 82   Similarly, nothing in instruction IPI Criminal 4th No. 5.11 negated the mens rea

requirement. IPI Criminal 4th No. 5.11 does not describe a separate offense, but rather provides

an alternate theory for proving respondents guilty of contempt. See People v. Ceja, 204 Ill. 2d

332, 361 (2003) (accountability is not a separate offense, but an alternate theory). The jury here

was still instructed that, to convict respondents, it must find that they willfully violated a valid

court order. Nothing in IPI Criminal 4th No. 5.11 undermined that instruction. Thus, as in all

accountability cases, the trier of fact was still required to find a mens rea. See People v. Perez,

189 Ill. 2d 254, 267-68 (2000) (accomplice liability requires a mental state). Kyles' contention

that IPI Criminal 4th No. 5.11 "allowed a conviction that was not based on a knowing and willful

act by Kyles" is therefore unfounded.

¶ 83   Turning to the Committee Note's second half, both respondents argue that the City

presented no evidence that they acted "in the name of or on behalf of a corporation" and, thus, IPI

Criminal 4th No. 5.11 was improper. Respondents' argument is unconvincing. They did not own

and operate E2 as individuals, but rather through Le Mirage, a corporation. The City presented

evidence that Le Mirage faced financial difficulties in 2002, and Hollins had to mortgage his


                                                  26
Nos. 1-09-3547, 1-09-3549 cons.
home to finance E2's operations. The City painted Le Mirage as a financially troubled

corporation that continued to operate E2 despite a circuit court order barring the club's

occupancy.

¶ 84    Given this evidence, it was not error for the trial court to instruct the jury that respondents

may be held accountable if they acted "in the name of or on behalf" of Le Mirage, just as if they

had acted in their own names or on behalf of themselves as individuals. Very slight evidence of

a theory will justify giving an instruction. Hari, 218 Ill. 2d at 296. Here, more than slight

evidence showed that respondents owned and operated E2 through a corporation and were acting

on the corporation's behalf when they violated the building court's order. We therefore cannot

say that the trial court abused its discretion.

¶ 85    Even if the trial court had erred in instructing the jury pursuant to IPI Criminal 4th No.

5.11, we would find that such error was harmless. Error in giving a jury instruction is harmless

where the result at trial would not have been different had the jury been properly instructed.

People v. Pomykala, 203 Ill. 2d 198, 210 (2003). In particular, error in giving an accountability

instruction is harmless where there is sufficient evidence to prove that the defendant actually

committed the offense. People v. Zirko, 2012 IL App (1st) 092158, ¶ 39; People v. Scott, 271 Ill.

App. 3d 307, 314 (1994); People v. Byrd, 206 Ill. App. 3d 996, 1007 (1990). Here, there was

sufficient evidence that respondents actually committed the offense. Thus, any error in

instructing the jury regarding accountability was harmless.

                                 ¶ 86 B. IPI Criminal 4th No. 5.01B

¶ 87    Respondents next contend that the trial court erred in failing to instruct the jury regarding


                                                  27
Nos. 1-09-3547, 1-09-3549 cons.
the definition of willfully. During the jury instruction conference, the City requested IPI Criminal

4th No. 5.01B, which defines the terms knowingly and willfully, but withdrew that instruction.

The following day, Hollins requested a nonpattern jury instruction defining willfully based on

Black's Law Dictionary. The trial court initially stated, "We were talking about willful violation

throughout. I think it would be helpful to tell them what's willful." The City, however, argued

that willfulness is within the jury's common understanding and, just as reasonable doubt should

not be defined, neither should the term willfully. Kyles wavered, first stating "we can go with no

instruction," then, "Just so the record is clear, I'm for Black's. But can I go without it," then, after

the possibility of IPI Criminal 4th No. 5.01B was raised once again, "We don't want that. We'll

go with nothing." The court ruled, "We will go with nothing."

¶ 88    Approximately 30 minutes into its deliberations, the jury asked the trial court for a

definition of the term willfully. The jury note is not included in the record on appeal. The court

described the note on record, however, and explained that it had instructed the jury that it had

"received all the instructions and evidence the Court has admitted. Please continue to

deliberate." Hollins noted his objection: "Just for the record, we had asked that the instruction

we tendered regarding willful be tendered to the jury at that time." Kyles did not voice an

objection.

¶ 89    The State first argues that respondents forfeited this issue. Kyles included this issue in

his posttrial motion. ("The Court erred by failing to include an instruction on willfulness." "The

jurors should have been given guidance on the key element of the crime, particularly when they

indicated they were confused and requested guidance.") As did Hollins. ("That the Court erred in


                                                  28
Nos. 1-09-3547, 1-09-3549 cons.
not defining the term "willful." "That the Court erred in denying the request from Respondent

that the instruction regarding "willful" be tendered to the trier of fact during deliberations.")

¶ 90    But neither respondent requested an IPI Criminal 4th No. 5.01B instruction during the

jury instruction conference or when the jury sent its note. Hollins requested a nonpattern jury

instruction based on Black's Law Dictionary, but failed to argue that IPI Criminal 4th No. 5.01B

inaccurately stated the law. See People v. Hudson, 222 Ill. 2d 392, 399-400 (2006) (IPI Criminal

should be used, unless it does not accurately state the law (citing Ill. S. Ct. R. 451(a) (eff. July 1,

1997)). As Hollins admits on appeal, the instruction he proffered—"Willful conduct is conduct

which is voluntary and intentional, but not necessarily malicious"—improperly raised the City's

burden, requiring intentional, rather than willful or knowing conduct. Compare 720 ILCS 5/4-5

(West 2002) (equating willful with knowing, rather than intentional). When the jury asked the

trial court to define willfully, Hollins renewed his request for a nonpattern jury instruction.

Similarly, Kyles did not request a IPI Criminal 4th No. 5.01B instruction. Indeed, when IPI

Criminal 4th No. 5.01B was discussed, his attorney stated, "We don't want that. We'll go with

nothing." At times, he joined in Hollins' request for a nonpattern jury instruction, but when the

jury sent its note, he did not voice an objection. Respondents therefore did not preserve this

issue. Nonetheless, they ask us to apply the plain-error doctrine. We must first determine

whether error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); People v. Herron, 215

Ill. 2d 167, 179 (2005) (citing Ill. S. Ct. R. 451(c) (eff. July 1, 1997)).

¶ 91    A trial court must instruct a jury that has posed an explicit question or asked for

clarification on a point of law. People v. Childs, 159 Ill. 2d 217, 228-29 (1994). This is true


                                                   29
Nos. 1-09-3547, 1-09-3549 cons.
even where the jury was properly instructed prior to deliberation. Id. A trial court may refuse to

answer a jury's question if the instructions already given are readily understandable and

sufficiently explain the law, further instruction would not be useful or may mislead the jury, the

jury's inquiry involves a question of fact, the jury's question is ambiguous, or answering the

question would require expressing an opinion that would likely direct the verdict. People v.

Reid, 136 Ill. 2d 27, 39-40 (1990).

¶ 92   Indirect criminal contempt requires proof beyond a reasonable doubt of (1) the existence

of a court order, and (2) the willful violation of that order. People v. Totten, 118 Ill. 2d 124, 138

(1987). Accordingly, the trial court instructed the jury that "A person commits the offense of

indirect criminal contempt when he willfully violates a valid court order." The court further

instructed the jury regarding the elements of indirect criminal contempt, including "that

respondent willfully violated said order." But the court did not instruct the jury pursuant to IPI

Criminal 4th No. 5.01B. That instruction provides the following:

               "[1] A person [(knows) (acts knowingly with regard to) (acts with knowledge of)]

       the nature or attendant circumstances of his conduct when he is consciously aware that

       his conduct is of such nature or that such circumstances exist. Knowledge of a material

       fact includes awareness of the substantial probability that such fact exists.

       [2] A person [(knows) (acts knowingly with regard to) (acts with knowledge of)] the

       result of his conduct when he is consciously aware that such result is practically certain to

       be caused by his conduct.

       [3] [Conduct performed knowingly or with knowledge is performed willfully.]" IPI


                                                 30
Nos. 1-09-3547, 1-09-3549 cons.
        Criminal 4th No. 5.01B.

IPI Criminal 4th No. 5.01B is based on section 4-5 of the Illinois Criminal Code, which defines

knowingly and states, "Conduct performed knowingly or with knowledge is performed wilfully,

within the meaning of a statute using the term 'willfully', unless the statute clearly requires

another meaning." 720 ILCS 5/4-5 (West 2010).

¶ 93    The parties present two related questions: (1) whether willfully has a plain and ordinary

meaning within the jurors' common understanding; and (2) whether the trial court was required to

instruct the jurors pursuant to IPI Criminal 4th No. 5.01B after they asked for a definition of

willfully.

¶ 94    The City argues that an instruction was unnecessary, because the meaning of " 'willful' is

within the jury's common understanding" and "is not confusing, ambiguous, or subject to

different interpretations." See People v. Sanchez, 388 Ill. App. 3d 467, 477-78 (2009) (courts

need not define words with a commonly understood meaning). Several Illinois decisions have

found that knowing—an arguably similar term—has a plain and ordinary meaning within the

jury's common knowledge, and no instruction need be given absent the jury's request for a

definition or expression of confusion. See People v. Perry, 2011 IL App (1st) 081228, ¶ 60;

People v. Sanders, 368 Ill. App. 3d 533, 536-38 (2006); People v. Sandy, 188 Ill. App. 3d 833,

841-42 (1989); People v. Masini, 65 Ill. App. 3d 1011, 1015 (1978); People v. Montgomery, 18

Ill. App. 3d 828, 833-34 (1974).

¶ 95    The same cannot be said of willful. The term's legal meaning is notoriously difficult to

pin down. See United States v. Wheeler, 540 F.3d 683, 689 (7th Cir. 2008) (willful may mean


                                                  31
Nos. 1-09-3547, 1-09-3549 cons.
intentional or knowing depending on the context); Bryan v. United States, 524 U.S. 184, 191

(1998) ("willfully" is "a word of many meanings whose construction is often dependent on the

context in which it appears" (internal quotation marks omitted)); Spies v. United States, 317 U.S.

492, 497-98 (1943) (willful may require voluntary or purposeful conduct in some contexts, but an

evil motive in others); State v. Hanson, 2012 WI 4, ¶ 21, 338 Wis. 2d 243, 808 N.W.2d 390

("willful is susceptible of different meanings in different contexts" (internal quotation marks

omitted)); State v. Sinner, 779 S.W.2d 690, 692-93 (Mo. Ct. App. 1989) ("the term 'willful' has

plagued our courts," at times meaning "intentional," at times meaning "intentionally" or

"knowingly"); People v. Clay, 167 Ill. App. 3d 628, 635 (1988) (equating willful with knowing,

but discussing federal law indicating that willful means an "evil motive" or "bad intent or

purpose").

¶ 96   The term's meaning in Illinois statutes is no exception. Prior to the Criminal Code of

1961, willful was used to describe both intentional and knowing conduct, and sometimes both.

Ill. Ann. Stat., ch. 38, ¶ 4-3, Committee Comments, at 199 (Smith-Hurd 1989). Passage of the

Criminal Code of 1961 helped matters only slightly, generally equating willfulness with

knowledge, but allowing for other meanings. See 720 ILCS 5/4-5 (West 2010) ("Conduct

performed knowingly or with knowledge is performed wilfully, within the meaning of a statute

using the term 'willfully', unless the statute clearly requires another meaning." (Emphasis

added.)); see also IPI Criminal 4th No. 5.01B, Committee Note ("When willfulness is an issue,

Section 4-6 [sic] requires the trial court to determine whether the statute using that word 'clearly

requires another meaning.' If so, the jury should be instructed accordingly."); 1 John F. Decker &


                                                 32
Nos. 1-09-3547, 1-09-3549 cons.
Christopher Kopacz, Illinois Criminal Law § 2.07[b], at 2-81 (5th ed. 2012) ("While clarity was

the hallmark of the legislative drafting effort reflected in virtually all of the mens rea definitions

contained in article 5/4 of the 1961 code," the definition of willful is a "notable exception.").

¶ 97   To the extent that Illinois now equates willfulness with knowledge, rather than intent, our

State is out-of-step with several jurisdictions, as well as with the term's common meaning. See,

e.g., State v. Garrard, 700 S.E.2d 269, 272 (S.C. Ct. App. 2010) (willful means "a voluntary and

intentional act"); Fugate v. Florida Election Comm'n, 924 So.2d 74, 75 (Fla. Dist. Ct. App.

2006) (per curiam) (a willful act is "voluntarily and intentionally performed with specific intent

and bad purpose to violate or disregard the requirements of the law"); State v. Parenteau, 569

A.2d 477, 479 (Vt. 1989) (willful "denotes intention" or "by design"); Decker and Kopcz, supra §

2.07[b], at 2-81 ("Notwithstanding the fact that a common sense, dictionary definition of 'willful'

carries purposive implications, it may reasonably be concluded that these implications are not

contemplated in the Illinois usage of the term."); Black's Law Dictionary 1593 (7th ed. 1999)

(defining willful as "[v]oluntary and intentional, but not necessarily malicious").

¶ 98   The City's argument that the meaning of " 'willful' is within the jury's common

understanding" and "is not confusing, ambiguous, or subject to different interpretations" is

therefore misplaced. With this in mind, we turn to the second question: whether the trial court

was required to instruct the jury pursuant to IPI Criminal 4th No. 5.01B after it asked for a

definition of willfully. While we have not addressed this precise issue, Illinois courts have

addressed a similar question regarding the term knowingly.

¶ 99   In People v. Brouder, 168 Ill. App. 3d 938, 946 (1988), the jury sent several notes to the


                                                  33
Nos. 1-09-3547, 1-09-3549 cons.
trial court indicating that it was confused about the meaning of knowing resistance for the

purposes of resisting arrest. The trial court twice responded that the jury had heard all of the

evidence and received its instructions and should continue to deliberate. Id. at 946-47. After the

jury continued to express its confusion, defense counsel tendered an instruction defining

knowingly as "consciously aware that such result is practically certain to be caused by his

conduct." (Internal quotation mark omitted.) Id. at 947. The trial court never ruled on this issue.

Id. On appeal, this court held that the trial court had committed reversible error in failing to

instruct the jury regarding the definition of knowingly. Id. at 947-48. Specifically, we noted that,

because the jury demonstrated confusion as to a question of law and "specifically requested the

trial court's assistance as to the meaning of 'knowing resistance,' " the trial court was required to

define the term. (Emphasis omitted.) Id. at 948.

¶ 100 After People v. Brouder, IPI Criminal 4th No. 5.01B was added to define knowingly. IPI

Criminal 4th No. 5.01B, Committee Note, at 142; see also People v. Lowry, 354 Ill. App. 3d 760,

765 (2004). Since IPI Criminal 4th No. 5.01B's addition in 1989, a general rule has emerged: If a

jury asks the court to define a mental state term, or manifests confusion or doubt regarding a

term's meaning, the court must instruct them accordingly. See Lowry, 354 Ill. App. 3d at 765-68

(trial court erred in failing to instruct the jury pursuant to IPI Criminal 4th No. 5.01B after jury

sent note stating, "knowingly [implies] that it wasn't an accident, or can it be accidental and

knowing."); People v. Comage, 303 Ill. App. 3d 269 (1999) (trial court erred in failing to instruct

the jury pursuant to IPI Criminal 4th No. 5.01B after jury sent note with the word knowingly

underlined, stating " 'Can we have further explanation on this paragraph?' "); but see People v.


                                                  34
Nos. 1-09-3547, 1-09-3549 cons.
Waldron, 219 Ill. App. 3d 1017, 1039-41 (1991) (failure to instruct jury was not error, despite

note asking court to define intent, because jury sent only one note and never expressed that it had

reached a "deadlock").

¶ 101 Where, however, a jury neither asks the court to define a mental state term nor manifests

confusion or doubt regarding a term's meaning, an instruction is unnecessary. See People v.

Averett, 381 Ill. App. 3d 1001, 1011-16 (2008) (trial court did not err in failing to define intent,

where jury's note did not ask for definition of term or show confusion about the term); People v.

Sanders, 368 Ill. App. 3d 533, 536-38 (2006) (same); People v. Simester, 287 Ill. App. 3d 420,

431 (1997) (same regarding knowledge and intent); People v. Sandy, 188 Ill. App. 3d 833, 841-

42 (1989) (same regarding knowingly); see also Lowry, 354 Ill. App. 3d at 768 ("this opinion

should not be interpreted as requiring the definition of 'knowingly' to be routinely given in every

case"); IPI Criminal 4th No. 5.01B, Committee Note, at 142 ("The Committee takes no position

as to whether this definition should be routinely given in the absence of a specific jury request.").

¶ 102 Here, the jury asked the court to define willfully, a term that, unlike knowingly, does not

have a plain and ordinary meaning. As shown above, when a jury expressly asks a trial court to

define a mental state term, the court must instruct them accordingly. See Lowry, 354 Ill. App. 3d

at 765-68; People v. Comage, 303 Ill. App. 3d at 273-75; Brouder, 168 Ill. App. 3d at 946-48.

Thus, the trial court in this case erred in refusing to instruct the jury pursuant to IPI Criminal 4th

No. 5.01B.

¶ 103 People v. Powell, 159 Ill. App. 3d 1005, 1013-14 (1987), on which the City relies, is

factually distinguishable. There, the jury asked the trial court whether intent and knowledge


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were equivalent. Defense counsel objected to a clarifying instruction, and the court told the jury,

" 'so far as the law is concerned, as far as your instructions are concerned, we do not have a

separate and distinct definition of intent nor [sic] knowingly.' " Id. at 1014. The appellate court

found that the trial court did not err, because the terms each had a plain and ordinary meaning

within a jury's common understanding, and the trial court's response merely allowed the jurors to

use their own understanding of the terms. Id. at 1013.

¶ 104 The jurors here, unlike those in Powell, directly asked the court to define a term, not

whether two terms are equivalent. More importantly, the Powell court could not have relied on a

pattern jury instruction to answer the jury's question because IPI Criminal 4th No. 5.01B did not

yet exist. Because the jury in this case directly requested a definition of willfully, and because the

trial court had the benefit of IPI Criminal 4th No. 5.01B, we hold that the trial court erred in

failing to instruct the jury.

¶ 105 We must now decide whether the trial court's error rose to the level of plain error. We

may review an unpreserved error where (1) a case is closely balanced, and a clear or obvious

error alone threatened to tip the scales of justice against the defendant; or (2) a clear or obvious

error was so serious that it affected the trial's fairness and challenged the integrity of the judicial

process. Piatkowski, 225 Ill. 2d at 565. Under both plain-error prongs, defendant has the burden

of persuasion. People v. Naylor, 229 Ill. 2d 584, 593 (2008). Where a defendant fails to

establish plain error, the result is procedural default. Id.

¶ 106 Respondents are not entitled to a new trial under the first plain-error prong. The question

is whether the evidence was so closely balanced that the jury may have reached its verdict based


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on the error, not the proper evidence, and wrongly convicted an innocent person. Herron, 215 Ill.

2d at 179. Put another way, was the evidence that respondents willfully occupied E2 closely

balanced? We hold that it was not.

¶ 107 There was ample evidence that respondents willfully violated a clear building court order.

Seven witnesses testified that E2 was occupied post-July 19, 2002, and Kyles himself testified

that he and Hollins continued to operate E2 between July 19, 2002, and February 16, 2003. Even

if we accepted respondents' claim that they believed the order barred occupancy of only the

mezzanine VIP area, the same seven witnesses testified that E2's mezzanine was regularly

occupied post-July 19, 2002. Respondents' claim that they were unaware that the VIP area was

being used taxes the imagination. The evidence, in short, was not closely balanced, such that the

failure to instruct the jury pursuant to IPI Criminal 4th No. 5.01B could have tipped the scales

against respondents.

¶ 108 Nor was the error here so serious that it affected the trial's fairness and challenged the

integrity of the judicial process. Piatkowski, 225 Ill. 2d at 565. In recent years, our supreme

court has clarified that plain error under the second prong is severely limited. See People v.

Thompson, 238 Ill. 2d 598, 613-15 (2010) (equating the second prong of plain error with the

federal structural error standard); People v. Glasper, 234 Ill. 2d 173, 199-200 (2009) (same).

Jury instructions regarding the elements of the offense are essential to a fair trial, and the failure

to instruct a jury in these areas constitutes grave error. People v. Reddick, 123 Ill. 2d 184, 198-99

(1988). But the trial court here instructed the jury regarding the elements of indirect criminal

contempt. The court erred only in refusing to define willfully. This error was not so serious that


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it affected the trial's fairness and challenged the integrity of the judicial process. A defendant's

right to have a term defined—even a term describing the requisite mental state—does not rise to

the same level of importance as instructing the jury on the elements of the offense. This is

especially true where instructing a jury pursuant to IPI Criminal 4th No. 5.01B (equating willfully

and knowingly) would have presented a lower threshold for the City than the common meaning

of the term (often equating willfully with purposefully, intentionally, or with an evil motive).

¶ 109 Alternatively, Hollins claims that his attorney was ineffective in failing to tender IPI

Criminal 4th No. 5.01B. The right to counsel guaranteed by the United States and Illinois

Constitutions includes the right to effective assistance of counsel. U.S. Const., amends. VI, XIV;

Ill. Const. 1970, art. I, § 8; Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on an

ineffective assistance of counsel claim, “[a] defendant must show that counsel's performance fell

below an objective standard of reasonableness and that there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been different.”

People v. Manning, 241 Ill. 2d 319, 326 (2011) (citing Strickland, 466 U.S. at 688). Under the

first Strickland prong, a defendant must show that his trial attorney's performance was deficient.

People v. Enis, 194 Ill. 2d 361, 376 (2000). Under the second, a defendant must show that

counsel's deficient performance undermined confidence in the trial's outcome. Id.

¶ 110 In Lowry, we held that defense counsel provided deficient representation where, faced

with a jury note requesting a definition of knowingly, he agreed that no instruction was necessary.

Lowry, 354 Ill. App. 3d at 767. We noted that counsel there showed that his inaction was not

strategic, but, rather, due to confusion regarding the jury's question. Id. We further held that


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counsel's deficient performance prejudiced defendant, because his mental state was a critical

issue at trial. Id. at 768.

¶ 111 This case is distinguishable from Lowry. Unlike knowing, willful is a slippery term with

several meanings. As the jury instruction conference illustrates, Hollins' attorney was aware of

IPI Criminal 4th 5.01B, but chose not to tender it. Defense counsel's choice of jury instructions

is normally a tactical decision within his or her discretion. People v. Mims, 403 Ill. App. 3d 884,

890 (2010); People v. Bobo, 375 Ill. App. 3d 966, 977 (2007). The instruction Hollins tendered

based on Black's Law Dictionary was considerably more favorable to the defense than IPI

Criminal 4th No. 5.01B. IPI Criminal 4th No. 5.01B equates willful and knowing, and therefore

sets a low threshold for the City. The instruction Hollins sought—"Willful conduct is conduct

which is voluntary and intentional, but not necessarily malicious"—would have set a higher

hurdle for the State to clear, as it equated willful and intentional.

¶ 112 Unlike in Lowry, counsel's refusal to tender IPI Criminal 4th No. 5.01B constituted

reasonable trial strategy. Because IPI Criminal 4th No. 5.01B's description of willfully is more

favorable to the prosecution than the common meaning of the term—or, for that matter, the

definition given in several other jurisdictions—it would be reasonable for defense counsel to

forgo instructing the jury pursuant to that instruction. Thus, defense counsel's failure to tender

IPI Criminal 4th No. 5.01B fell within the realm of reasonable trial strategy. See People v. Mims,

403 Ill. App. 3d 884, 890 (2010) (to prove counsel's ineffectiveness, defendant must overcome

the presumption that counsel's conduct was strategic).

¶ 113 Even if counsel's performance had been deficient, Hollins did not suffer prejudice as a


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Nos. 1-09-3547, 1-09-3549 cons.
result. See Manning, 241 Ill. 2d at 326 (under the second Strickland prong, defendant must show

that, but for counsel's errors, the result of the proceeding would have been different). As

explained above, instructing the jury pursuant to IPI Criminal 4th No. 5.01B would not have

affected the outcome at trial, because there was ample evidence that, regardless of which

meaning of the term the jury applied, respondents willfully violated the building court's order.

Accordingly, we reject Hollins' ineffectiveness claim.

                                       ¶ 114 III. Sentencing

¶ 115 Prior to sentencing, respondents moved to preclude the State from introducing evidence

of the E2 tragedy in aggravation. They argued that the tragedy was irrelevant because contempt

involves an offense to the dignity of the court. Kyles noted that the court had barred evidence of

the tragedy at trial and "[t]o change the rules and let that evidence come in at sentencing is

inappropriate." He added that this court had already ruled that the building code violation and

the tragic deaths were not connected. See People v. Kyles, slip op. No. 1-07-0284, at 8, 11-14

(July 24, 2008) (unpublished order under Supreme Court Rule 23). The City contended that

respondents "kept the place open because of greed" and should not be able to "escape the

consequences of what they did." The court agreed with the City and denied respondents'

motions. During sentencing, the City presented no witnesses in aggravation, but focused on the

E2 tragedy in argument. Respondents presented 10 witnesses in mitigation and rarely mentioned

the tragedy. The trial court sentenced respondents to two years' imprisonment.

¶ 116 Respondents argue on appeal that the trial court improperly considered the tragedy in

aggravation. The City admits that "the deaths and injuries at the club were not directly


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Nos. 1-09-3547, 1-09-3549 cons.
attributable to the building's defects," but argues that the tragedy was a proper consideration

because, but for respondents' violation of the order, E2 would have been closed and the tragedy

would not have occurred.

¶ 117 At the outset, we address Kyles' contention that this court resolved this issue in People v.

Kyles, slip op. No. 1-07-0284, at 8, 11-14 (July 24, 2008) (unpublished order under Supreme

Court Rule 23), and consideration of the E2 tragedy was therefore barred by the doctrine of

collateral estoppel. Collateral estoppel bars relitigation of an issue where (1) the court rendered a

final judgment in a prior case; (2) the opposing party in the instant case was a party in the prior

case or in privity with a party in the prior case; and (3) the issue decided in the prior case is

identical with the one presented in the instant case. People v. Tenner, 206 Ill. 2d 381, 396

(2002). The issues presented in People v. Kyles and this case are not identical. There, the

question was whether the trial court in Kyles' involuntary manslaughter case erroneously barred

evidence during the guilt-innocence phase that Kyles knew that the building court had ordered E2

to be closed. Kyles, slip op. at 8, 11-14. Here, the question is whether the trial court erred in

considering the E2 tragedy in aggravation during sentencing. Although there is overlap between

these cases, the issues are not identical, and the doctrine of collateral estoppel does not apply.

¶ 118 Turning to the merits, we believe that neither party accurately frames the issue. Kyles

argues that "the deaths at the nightclub were unrelated to the building code violation." Hollins

likewise contends, "A tragedy happened on February 17, 2003, but it has nothing to do with the

court order or the basis for the underlying finding of contempt of court." We disagree. The

building court ordered respondents to vacate the second floor of 2347 South Michigan Avenue.


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Had respondents complied, E2 would have been closed on the night of the tragedy. Thus, as the

City argues, "but for respondents' ignoring the orders, the deaths and injuries would not have

occurred."

¶ 119 Put another way, respondents' violation of the building court's order was a cause in fact of

the clubgoers' deaths and injuries. See People v. Johnson, 392 Ill. App. 3d 127, 131 (2009)

(" 'Cause in fact exists where there is a reasonable certainty that a defendant's acts caused the

injury or damage.' " (quoting Rice v. White, 374 Ill. App. 3d 870, 888 (2007)); see also 1 Wayne

R. LaFave, Substantive Criminal Law § 6.4(b), at 467 (2d ed. 2003) (conduct is the cause in fact

of a result if "the result would not have happened in the absence of the conduct; or, putting it

another way, that 'but for' the antecedent conduct the result would not have occurred."); Decker

and Kopacz, supra § 6.11[e], at 6-43 (" 'Cause in fact' exists where there is a legal certainty that a

defendant's conduct produced a result.").

¶ 120 Nor is the City's description of the issue wholly accurate. The City argues that

"Respondents' contempt of the orders most certainly caused the deaths and injuries—had

respondents not disobeyed them, no one would have been on the building's second floor, and no

one would have died or suffered injury." The City ignores that the type of harm—21 people

crushed to death in a panic after security guards sprayed pepper spray in an attempt to subdue a

fight—was not reasonably foreseeable given respondents' contumacious conduct. Respondents'

building code violations could have resulted in many different types of harm had the trusses

failed and the mezzanine collapsed. But the death and injury caused in this case were not related

to these structural flaws. The tragedy here was extraordinary and unforeseeable.


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¶ 121 In other words, respondents' violation of the building court's order was not the legal or

proximate cause3 of the clubgoers' deaths and injuries. People v. Hudson, 222 Ill. 2d 392, 401

(2006) ("Legal cause 'is essentially a question of foreseeability'; the relevant inquiry is 'whether

the injury is of a type that a reasonable person would see as a likely result of his or her conduct.' "

(quoting First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 258 (1999)); see also 1

Wayne R. LaFave, Substantive Criminal Law §6.4, at 464 (2d ed. 2003) ("even when cause in

fact is established, it must be determined that any variation between the result intended (with

intent crimes) or hazarded (with reckless or negligent crimes) and the result actually achieved is

not so extraordinary that it would be unfair to hold the defendant responsible for the actual

result."); Decker and Kopacz, supra § 6.11[e], at 6-43 (" 'Legal cause' is established if a result

was foreseeable to a reasonable person as a likely result, although the exact nature of the result or

the exact way in which it occurs need not be foreseeable.").

¶ 122 Another panel of this court reached a similar conclusion in Kyles' involuntary

manslaughter case:

               "The mezzanine and VIP boxes on the second floor did not fail under the weight

       of patrons in the nightclub. Rather, the stampede and tragic deaths resulted from the

       completely unrelated event of security guards using pepper spray to break up a fight on

       the dance floor.

       ***


       3
         Some decisions and treatises use proximate cause to denote the combination of cause in
fact and legal causation. Others use it synonymously with legal causation. We use it in the latter
sense.

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Nos. 1-09-3547, 1-09-3549 cons.
       [T]he element of proximate cause is *** lacking since the State's hypothetical truss

       failure did not cause the patrons to flee for the stairway on February 17, 2003."

       (Emphasis added.) People v. Kyles, slip op. No. 1-07-0284, at 8, 11-14 (July 24, 2008)

       (unpublished order under Supreme Court Rule 23).

Although, as discussed above, collateral estoppel does not apply, we again conclude that

respondents' violation of the building court's order was a cause in fact, but not the legal or

proximate cause, of the clubgoers' deaths and injuries. Death caused by panic, caused by release

of pepper spray, caused by security guards' attempts to break up a fight, is not the type of harm

that a reasonable person would see as a likely result of violating a court order regarding a

building's structural flaws.

¶ 123 Having cleared the brush, the question here becomes apparent: during sentencing, may a

trial court consider in aggravation deaths that were factually, but not proximately, caused by

respondents' indirect criminal contempt?

¶ 124 We begin with a review of the law regarding sentencing and contempt. Criminal

contempt is a crime in the normal sense and is punishable by fine or imprisonment. Bloom v.

Illinois, 391 U.S. 194, 201 (1968). The power of courts to punish for contempt is inherent and

can be neither created nor limited by statute. People v. Geiger, 2012 IL 113181, ¶ 24. Because it

is not subject to legislation, contempt has no sentencing classification or range. Id. Accordingly,

"[w]hen imposing a sentence for contempt, court should keep in mind that '[t]he contempt power

is an extraordinary one that should be used sparingly and with the utmost sensitivity.' " Id.

(quoting In re G.B., 88 Ill. 2d 36, 52 (1981) (Simon, J., dissenting)). When exercising this


                                                 44
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power, courts must avoid arbitrary or oppressive conclusions. People v. Simac, 161 Ill. 2d 297,

306 (1994). Criminal contempt, unlike civil contempt, is punitive in nature. People v. Warren,

173 Ill. 2d 348, 368 (1996). Sentences for criminal contempt are intended to vindicate the

dignity and authority of the court. Simac, 161 Ill. 2d at 305-06; People v. Colclasure, 48 Ill. App.

3d 988, 991 (1977); People v. Kennedy, 43 Ill. App. 2d 299, 302 (1963).

¶ 125 Because the offense of criminal contempt is not bound by sentencing ranges, appellate

courts have a " 'special responsibility for determining that the [contempt] power is not abused.' "

Geiger, 2012 IL 113181, ¶ 27 (quoting Green v. United States, 356 U.S. 165, 188 (1958)).

" 'Punishment of criminal contempt should reflect the "least possible power adequate to the end

proposed." [Citation.]' " Id. (quoting United States v. Bukowski, 435 F.2d 1094, 1110 (7th Cir.

1970)). In sentencing a criminal contemnor, a trial court may consider (1) the extent of the

willful and deliberate defiance of the court's order; (2) the seriousness of the consequences of the

contumacious behavior; (3) the public interest in terminating the defendant's defiance; and (4) the

importance of deterring future acts. Id., ¶ 28 (citing United States v. United Mine Workers of

America, 330 U.S. 258, 302-03 (1947)). Sentences imposed for criminal contempt are reviewed

for an abuse of discretion. Geiger, 2012 IL 113181, ¶ 27; In re B.J., 268 Ill. App. 3d 449, 452

(1994).

¶ 126 Illinois criminal law is filled with proximate cause decisions. Most fall into three areas:

(1) murder cases where medical negligence may have been an intervening cause (see, e.g., People

v. Domagala, 2013 IL 113688; People v. Mars, 2012 IL App (2d) 110695; People v. Caldwell,

295 Ill. App. 3d 172 (1998); People v. Gulliford, 86 Ill. App. 3d 237 (1980)); (2) driving under


                                                 45
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the influence cases where death or injury results (see, e.g., People v. Martin, 2011 IL 109102;

People v. Lavallier, 187 Ill. 2d 464 (1999); People v. Johnson, 392 Ill. App. 3d 127 (2009);

People v. Merrick, 2012 IL App (3d) 100551)); or (3) felony-murder cases (see, e.g., People v.

Dekens, 182 Ill. 2d 247 (1998); People v. Nash, 2012 IL App (1st) 093233; People v. Lowery,

178 Ill. 2d 462 (1997); People v. Martinez, 342 Ill. App. 3d 849 (2003)).

¶ 127 The parties have not presented, nor have we discovered, an Illinois contempt case that

concerns proximate cause. The general principles regarding proximate cause, however, are

clear. "Causal relation is the universal factor common to all legal liability." People v. Lowery,

178 Ill. 2d 462, 466 (1997). Proximate cause is "essentially a question of foreseeability."

(Internal quotation marks omitted.) Hudson, 222 Ill. 2d at 401. The question is whether harm is

a type that a reasonable person would see as a likely result of his or her conduct. Id.

¶ 128 Proximate cause is generally a prerequisite to criminal liability. See, e.g., People v.

Dekens, 182 Ill. 2d 247, 249 (1998) (liability only attaches in felony-murder cases if defendant's

conduct proximately caused death); People v. Cook, 2011 IL App (4th) 090875, ¶ 17 (legal

liability is generally limited to cases where the prosecution can demonstrate proximate cause).

Accordingly, Illinois courts have generally held that, where there is insufficient proof that a

criminal defendant proximately caused an injury, that harm may not be considered in aggravation

during sentencing.

¶ 129 In Maldonado, the prosecution presented evidence that the defendant had previously been

convicted of robbery and that the victim in that case had never fully recovered from a beating

sustained during the offense. People v. Maldonado, 80 Ill. App. 3d 1046, 1048 (1980). The


                                                 46
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appellate court found that "the brutal manner in which the robbery was carried out would have

some relevance to ascertaining the defendant's character and rehabilitative potential. However,

no causal connection has ever been established between the defendant's act of beating [the

victim] and the alleged facts that he never recovered, was subsequently unable to perform his

duties, and was accordingly discharged." Id. at 1051. The court held that this evidence was

improper and remanded for a new sentencing hearing. Id.

¶ 130 In People v. Lurks, 241 Ill. App. 3d 819, 820 (1993), the defendant sexually assaulted a

pregnant woman, who had been planning to marry her live-in boyfriend. During sentencing, the

trial court noted, " 'we heard that she didn't marry the young man and she doesn't live with his

family anymore and she doesn't have a baby anymore. Her life significantly changed.' " Id. at

823. This court found that "there is no evidence***connecting the rape to the victim's decision

to move out of [her boyfriend's] house and her failure to marry ***. The trial court could not

properly consider those facts in aggravation." Id. at 827.

¶ 131 Finally, in People v. Gant, 18 Ill. App. 3d 61, 64 (1974), the defendant and an accomplice

robbed a woman of her purse. One of the men dragged the woman by her hair; the other placed

his arm around her neck. Id. She died two days later, but neither of the men was charged in her

death, and no evidence was presented showing that the defendant caused her death. Id. Yet the

trial court stated, " 'this woman did die and although apparently there was not sufficient evidence

to charge them with the murder or involuntary manslaughter whatever the case may be, certainly

this event was a contributing factor to her death, traumatic shocks, and they have that to carry

with them and I am taking that into consideration *** in imposing sentence in this case.' " Id. at


                                                47
Nos. 1-09-3547, 1-09-3549 cons.
65. This court found that the trial court should not have considered her death in aggravation, as

that was neither charged nor proved:

        "The record in the present case reflects that the trial judge did allow his determination of

        the sentence to be affected by the death of the complaining witness for which he believed

        the defendants to be in some way responsible. But there was absolutely no evidence

        adduced at trial which would support such a belief. The defendant was 'clothed in a

        presumption of innocence' regarding the death of the complaining witness, and it was

        therefore prejudicial to him when the trial judge imposed a sentence based at least in part

        on his belief that the defendant was somehow responsible for her death [citation]." Id. at

        66-67.

The Gant court therefore reduced the defendant's sentence. Id.

¶ 132 In Gant, Lurks, and Maldonado, the prosecution failed to show that the defendants

proximately caused the harm presented. Here, we know respondents' violation of the building

court's order did not proximately cause the E2 tragedy. Even the City admits that "the deaths and

injuries at the club were not directly attributable to the building's defects." It would therefore be

inappropriate to hold respondents liable for the deaths and injuries that occurred on February 17,

2003.

¶ 133 To the extent that a chain of causation existed, the security guard's release of pepper spray

that night was a supervening cause that broke that chain. An intervening cause is " '[a]n event

that comes between the initial event in a sequence and the end result, thereby altering the natural

course of events that might have connected a wrongful act to an injury.' " People v. Herman, 347


                                                 48
Nos. 1-09-3547, 1-09-3549 cons.
Ill. App. 3d 525, 530-31 (2004) (quoting Black's Law Dictionary 212 (7th ed. 1999)). An

intervening cause completely unrelated to the defendant's acts—that is, a supervening

cause—will relieve the defendant of criminal liability. Domagala, 2013 IL 113688, ¶ 39. The

release of pepper spray to break up a fight was completely unrelated to respondents' violation of

the building court's order. It was a supervening act that relieved them of legal responsibility.

¶ 134 We note that the State's failure to convict respondents of involuntary manslaughter for the

E2 tragedy, by itself, would not bar consideration of the E2 deaths and injuries in aggravation.

" '[E]vidence of criminal conduct can be considered at sentencing even if the defendant

previously had been acquitted of that conduct.' " People v. Deleon, 227 Ill. 2d 322, 340 (2008)

(quoting People v. Jackson, 149 Ill. 2d 540, 549 (1992)). Acquittal does not demonstrate a

defendant's innocence. Jackson, 149 Ill. 2d at 549. It means only that the prosecution was

unable to prove the defendant guilty beyond a reasonable doubt. Id. Acquittal therefore does not

bar presentation of those facts at sentencing, where the burden of proof is lower. Id.; see also

People v. Rose, 384 Ill. App. 3d 937, 944 (2008) (the exclusionary rule does not apply to

sentencing, where evidentiary standards are less rigid).

¶ 135 The concern, rather, is that the evidence presented be relevant and reliable. People v.

Williams, 149 Ill. 2d 467, 490 (1992). The deaths and injuries at E2 on February 17, 2003, are

not relevant to establishing the seriousness of respondents' offense or determining their

rehabilitative potential. See People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (criminal penalties

must be determined " 'both according to the seriousness of the offense and with the objective of

restoring the offender to useful citizenship.' " (quoting Ill. Const. 1970, art. I, § 11)). As we have


                                                 49
Nos. 1-09-3547, 1-09-3549 cons.
established, there is no reliable evidence that respondents proximately caused the E2 tragedy.

Indeed, the parties agree—and another panel of this court has previously held—that respondents'

violation of the building court order did not proximately cause the E2 tragedy. We now hold that

the deaths and injuries in this case were factually, but not proximately, caused by respondents'

indirect criminal contempt and were not a proper aggravating factor.

¶ 136 We must next determine if the trial court considered this improper factor in aggravation

and, if so, what weight the court attributed to it. Absent an affirmative showing of error, we must

presume that the sentencing court knew and properly applied the law. People v. Smith, 176 Ill.

2d 217, 260 (1997). Where a sentencing court considers an improper factor, however, we must

reverse, unless we can determine from the record that the weight placed on the improper factor

was "so insignificant that it did not lead to a greater sentence." People v. Heider, 231 Ill. 2d 1,

21 (2008). Where a reviewing court is unable to determine what weight the trial court gave to an

improper sentencing factor, the cause must be remanded for resentencing. People v. Bourke, 96

Ill. 2d 327, 332 (1983).

¶ 137 Here, the trial court improperly considered the E2 tragedy in aggravation. First, the trial

court denied respondents' motions to bar evidence of the E2 tragedy during sentencing. Then, the

City focused on the tragedy during its argument in aggravation:

       "Judge, in the City's position this is a case that cries out for justice.

               We are here six years later, 21 people dead. And the reason those 21 people are

       dead is because these two men willfully violated four court orders that had been put in

       place to protect the public.


                                                  50
Nos. 1-09-3547, 1-09-3549 cons.
                To this day neither man has come to grips with the consequences of his action.

        Neither of the defendants has expressed one ounce of remorse. Despite a jury finding in

        this case that was based on overwhelming evidence neither one of these defendants if

        asked today will say that they did -- they will say that they did absolutely nothing."

The City later stated, "The truth of the matter is [Hollins] like Mr. Kyles has expressed no

remorse with respect *** to the 21 people being dead." The City continued, "The bottom line is

that because of their willful and wanton violations of these court orders we have 21 people dead.

As such, Judge, we ask you and we believe that justice cries out for it, both of these men should

receive substantial periods of incarceration."

¶ 138 The City's rebuttal argument also emphasized the E2 tragedy: "I respect all the [mitigation

witnesses] who stood up today and, you know, I respect everything they said. I just want to

remind your Honor that there are 21 people who couldn't stand up today." The City further

argued, "but for what they did, those 21 people would be alive today if they had stepped up ***

and if they had closed the place which they chose not to do." The City ended its rebuttal by

revisiting this issue:

                "Judge, once again, I am going to say to you when you hear all of this, they still

        don't believe that they did anything wrong. They need to be told and they need to be sent

        a message about those 21 people who would still be alive here today. And we ask that

        you do that."

Consonant with its denial of the motion in limine, the court made no further statement rejecting

the relevance of the City's arguments assessing blame for the 21 deaths on respondents' violation


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of the court orders. Respondents presented 10 mitigation witnesses. They rarely mentioned the

tragedy in closing argument. While in its brief pronouncement, the trial court did not expressly

mention the February 17, 2003, or the E2 tragedy, the judge stated, "I did seriously consider

probation, however, it is the conclusion of this court that probation would deprecate under all the

facts and circumstances of this case this serious nature of this matter." The trial court's denial of

respondents' motion, the State's focus on the E2 tragedy in argument, and the trial court's

reference to the "serious nature" of the offense all indicate that the court relied on the tragedy in

sentencing respondents.

¶ 139 The length of respondents' sentences also evidences the court's reliance on the E2 tragedy.

The length of a criminal defendant's sentence may be a factor in determining whether he received

a greater sentence based on an improper aggravating factor. See, e.g., People v. Johnson, 347 Ill.

App. 3d 570 (2004) (remanding for a new sentencing hearing where court considered improper

factor and defendant's sentence was only 10 years less than the minimum nonextended-term

sentence for residential burglary). Contempt poses a unique problem, as it is not subject to a

sentencing range. Geiger, 2012 IL 113181, ¶ 24. Even without such guidelines, however,

respondents' two-year sentences appear lengthy. Disregarding a court order is undoubtedly a

serious matter. That is especially true in this case, where respondents' conduct threatened serious

harm—had the mezzanine collapsed, it could have killed or injured hundreds of people. See

People v. Saldivar, 113 Ill. 2d 256, 265 (1986) (sentencing courts may consider in aggravation

that a defendant's conduct caused or threatened serious harm). Yet no physical harm proximately

resulted from respondents' contumacious conduct. Accordingly, respondents' sentences exceed


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what is necessary to vindicate the dignity and authority of the court. See Simac, 161 Ill. 2d at

305-06 (criminal contempt sentences are intended to vindicate the dignity and authority of the

court).

¶ 140 Respondents urge us to compare their sentences to those in Welch v. City of Evanston,

181 Ill. App. 3d 49 (1989), and City of Rockford v. Suski, 307 Ill. App. 3d 233 (1999). The

defendant in Welch was sentenced to pay fines and fees for indirect criminal contempt after he

violated a court order barring occupancy of his building's basement unit. Welch, 181 Ill. App. 3d

at 51, 53-54. The defendant in Suski was sentenced to 30 days' imprisonment for indirect

criminal contempt after he violated a court order vacating his multi-unit rental property. Suski,

307 Ill. App. 3d at 237-38, 241.

¶ 141 Although the sentences in Welch and Suski stand in stark contrast to the two-year

sentences imposed in this case, we must decline respondents' invitation to compare these cases.

Our supreme court rejected comparative sentencing in People v. Fern, 189 Ill. 2d 48, 55 (1999).

The Fern court found that comparative sentencing did not fit with Illinois' emphasis on

individualized sentencing or trial court's sentencing discretion: "The fact that a lesser sentence

was imposed in another case has no bearing on whether the sentence in the case at hand is

excessive on the facts of that case." (Emphasis in original.) Id. at 56. The sentences imposed in

Welch and Suski are therefore irrelevant. For similar reasons, we reject the City's comparison of

this case to People v. Levinson, 75 Ill. App. 3d 429 (1979), as well as Hollins' comparison of his

two-year sentence with the two-to-five-year sentencing range for involuntary manslaughter, of

which he was not convicted. See 720 ILCS 5/9-1(d)(1) (West 2002) (involuntary manslaughter


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is a Class 3 felony).

¶ 142 Regardless, there is sufficient evidence that the trial court improperly relied on the E2

tragedy in sentencing respondents. The record shows that (1) the court denied respondents'

motions to bar the improper evidence; (2) the State focused on this evidence in closing argument;

(3) the court noted the "serious nature of this matter"; and (4) respondents' two-year sentences

were lengthy, even considering the serious danger that the building's structural flaws posed. We

therefore hold that the trial court improperly relied on the E2 tragedy in aggravation and vacate

respondents' two-year sentences. Because the extent of the trial court's reliance on the tragedy is

unclear, we also remand this cause for resentencing. See Bourke, 96 Ill. 2d at 332 (where

reviewing court is unable to determine what weight the trial court gave to an improper

aggravating factor, the cause must be remanded for resentencing).

¶ 143 In doing so, we reiterate that contempt is unique among criminal offenses, and sentences

for criminal contempt are intended to vindicate the dignity and authority of the court. Simac, 161

Ill. 2d at 305-06; Colclasure, 48 Ill. App. 3d at 991; Kennedy, 43 Ill. App. 2d at 302. As a

reviewing court, we have a " 'special responsibility for determining that the [contempt] power is

not abused.' " Geiger, 2012 IL 113181, ¶ 27 (quoting Green v. United States, 356 U.S. 165, 188

(1958)). " 'Punishment of criminal contempt should reflect the "least possible power adequate to

the end proposed." [Citation.]' " Id. (quoting United States v. Bukowski, 435 F.2d 1094, 1110

(7th Cir. 1970)).

¶ 144 Our holding should not be taken to mean that respondents are free of criminal liability.

"The requirement of causation in criminal law, more often than not, serves not to free defendants


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from all liability but rather to limit their punishment consistent with accepted theories of

punishment." LaFave, supra §6.4(c), at 472. As our supreme court has ruled, "respondents were

proved guilty beyond a reasonable doubt of indirect criminal contempt because a rational jury

could have found that they were fully aware of what the building court's orders prohibited and

willfully disobeyed the orders." Le Mirage, Inc., 2013 IL 113482, ¶ 76. Respondents, however,

should not be punished for acts they did not proximately cause.

                                       ¶ 145 CONCLUSION

¶ 146 For the foregoing reasons, we affirm respondents' convictions, vacate their sentences, and

remand for resentencing.

¶ 147 Convictions affirmed; sentences vacated; remanded for resentencing.




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