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                              Appellate Court                           Date: 2017.09.27
                                                                        11:50:45 -05'00'



                  People v. Jackson, 2017 IL App (1st) 142879



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



District & No.    First District, Second Division
                  Docket No. 1-14-2879



Filed             June 27, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-MC6-014663;
Review            the Hon. Thomas J. O’Hara, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Whitney B. Price, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Miles J. Keleher, and Sheilah O’Grady-Krajniak, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                  with opinion.
                  Justice Neville concurred in the judgment and opinion.
                  Justice Mason dissented, with opinion.
                                             OPINION

¶1        After James Jackson calls 911 for an ambulance, the paramedics arrive to find him
     “agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of
     psychological issue and with an “altered” mental state. The paramedics call for police
     assistance. Jackson screams and flails; one officer uses his Taser on Jackson, striking him 10
     times. Another officer tries to grab Jackson and gets kicked in the shins. Jackson resists being
     placed in handcuffs. Ultimately, the police subdue him and place him into the ambulance for
     transport to the hospital. Jackson is charged and convicted of battery and resisting arrest.
¶2        This, in sum, is what happened to James Jackson, and what happens all too often to
     individuals who may be experiencing a mental health or other crisis. When they (or their
     families) call for help, they are met with some use of force by officers. See U.S. Dep’t of
     Justice Civil Rights Div. & U.S. Attorney’s Office Northern Dist. of Ill., Investigation of the
     Chicago Police Department 37 (2017), https://www.justice.gov/opa/file/925846/download
     (listing incidents where Chicago police officers “used force against people in crisis who
     needed help”). The DOJ report reveals that, as here, law enforcement officers, often “first
     responders” to mental health emergencies, are not necessarily trained or prepared to deal with
     the complex situations in which they may find themselves. The lesson in these cases can be
     stark: call 911 and someone could end up charged with a crime, or worse. (The dissent states
     that there is no evidence that Jackson was mentally ill (infra ¶ 101), but this ignores testimony
     from every state witness that Jackson was “irrational.” The ultimate diagnosis is
     irrelevant—what matters is how Jackson acted.)
¶3        Battery against a police officer is a serious charge, but being kicked in the legs by a
     mentally unstable person (causing no serious injury) is not the type of touching that requires
     either specific or general deterrence. Sometimes, the initial decision to arrest or charge a
     defendant becomes a boulder rolling downhill, and no one feels strong enough to say, “stop,”
     regardless of the resources wasted. The dissent feels we should not find fault with the officers’
     actions and theorizes that they had no choice but to wrestle Jackson to the ground and tase him
     10 times. Infra ¶ 100. But the officers should have received training in how to de-escalate such
     a situation. The officers did not tase Jackson out of malice, but because they did not know what
     else to do. The restraint used on Jackson did not assist the paramedics in assessing Jackson’s
     health—how could they do so after he had been zapped with 50,000 volts? All they could do
     was bundle Jackson into an ambulance. The lack of training turned a call for help into a
     contentious encounter with police.
¶4        Prosecutors too should receive training to enable them to distinguish between those
     responsible for their actions and those, like Jackson, whose vulnerable or abnormal mental
     state causes them to act in uncooperative or confused ways. We will say it outright—this
     prosecution was a waste of time and money, all so that Jackson could be sentenced to 18
     months of conditional discharge.
¶5        Jackson challenges the sufficiency of the evidence. He also contends that several errors
     occurred during trial, which he asks us to review under the plain error standard. And he claims
     that his trial counsel was ineffective for failing to preserve those errors.
¶6        We find the evidence was legally insufficient to support Jackson’s conviction. Further,
     several errors occurred during trial—the trial court (i) failed to properly question potential
     jurors during voir dire, (ii) erringly admitted other-crimes evidence that Jackson smelled of

                                                 -2-
       marijuana, and (iii) erringly admitted opinion testimony from paramedics that Jackson was not
       having a seizure during the incident. The State in its closing argument relied on this
       inadmissible evidence and so did the jury in convicting Jackson. We reverse Jackson’s
       conviction, and the State may not retry him. People v. Lopez, 229 Ill. 2d 322, 367 (2008) (State
       may not retry defendant once it has been determined evidence introduced at trial was
       insufficient to sustain conviction).

¶7                                           BACKGROUND
¶8         Before trial, the judge asked each panel of potential jury members whether they disagreed
       with, or would be unable to follow, the rules of law that (i) Jackson is presumed innocent, (ii)
       the State has the burden to prove him guilty beyond a reasonable doubt, (iii) Jackson did not
       need to present evidence, and (iv) Jackson’s failure to testify could not be held against him.
       The judge did not ask the panels whether they understood and accepted these principles.
       Jackson’s counsel did not object to these questions.
¶9         The relevant facts adduced at trial follow.
¶ 10       On December 10, 2010, James Jackson called 911 from his apartment building in Calumet
       City and requested an ambulance. Calumet City fire department paramedic Timothy
       Piepenerink testified that he and his partner, Chris Stapleton, responded to an ambulance call
       for an unknown medical emergency at about 6:00 p.m. They arrived in a large ambulance
       labeled “Calumet City Fire Department” and entered the apartment building through the front
       door into a vestibule. A second door separated the vestibule from the rest of the building.
       Jackson was behind the second door and said that he needed an ambulance. When Piepenerink
       identified himself, Jackson replied, “You are not the ambulance.” Piepenerink observed that
       Jackson seemed “a little bit nervous and kind of upset.”
¶ 11       Piepenerink and Stapleton coaxed Jackson outside to show him their ambulance, but
       Jackson loudly insisted they were not paramedics. Jackson began calling 911, repeatedly
       asking for an ambulance despite the dispatcher telling him the ambulance was there. Jackson
       began to yell profanities, so Stapleton requested police assistance. Piepenerink thought
       Jackson might be suffering from some type of psychological issue: “he was not rational. We
       couldn’t get through to him. *** He was nervous. There was something going on.” Stapleton
       thought that Jackson’s “mental status was altered”; Jackson did not follow simple directions
       and did not seem to be thinking clearly. Piepenerink and Stapleton also noted that Jackson
       smelled of marijuana.
¶ 12       Jackson tried to go back inside the building but did not have his key for the second door, so
       he and the paramedics waited in the vestibule area for the police to arrive. During that time,
       Jackson kept yelling “don’t touch me” and appeared agitated.
¶ 13       When Officer Dan Piech arrived, the paramedics met him in the driveway and informed
       him that Jackson was mentally unstable or possibly under the influence of an unknown
       controlled substance. Jackson stayed in the vestibule screaming profanities and “I am not
       going.” Officer Piech tried to calm Jackson and convince him to go with the paramedics, but
       Jackson kept yelling. Piech reached for Jackson’s shoulder; Jackson pulled away and fell
       backwards, sliding down the vestibule wall to the floor. Jackson then began to punch and kick,
       in a manner Piech characterized as “defending myself” rather than “violent.” Piech tried and
       failed to handcuff Jackson while the paramedics attempted to hold down Jackson’s legs.
       During the struggle, Jackson tried to bite Stapleton’s arm. But Stapleton pulled away, and

                                                   -3-
       Jackson clamped down on Stapleton’s sweatshirt. Piech then used his department-issued
       Taser, in the “dry stun” mode, to stun Jackson with 50,000 volts in the waist area. Normally,
       using the Taser would make a subject less combative. Piech tased Jackson “about 10 times.”
       On Jackson, the Taser had “no affect whatsoever.”
¶ 14        A few minutes later, Officer Gary Wojcik arrived. From outside, he could hear Jackson
       screaming. Inside the vestibule, Wojcik tried to assist Piech in handcuffing Jackson while the
       paramedics backed away. To Wojcik, Jackson seemed “irrational.” He noticed that the
       vestibule had a “very strong odor of burnt cannabis,” though he did not know where the smell
       had come from. Jackson kicked Wojcik several times in the lower legs. Wojcik put handcuffs
       on one of Jackson’s wrists; Jackson pulled away and began punching the glass window in the
       vestibule. Piech then tased Jackson again, which had no effect. After struggling for several
       minutes to subdue Jackson, the two officers succeeded in placing handcuffs on him. Jackson
       was placed on a stretcher, put in the ambulance, and transported to the hospital. There, Jackson
       was still unhinged and screaming.
¶ 15        According to Jackson’s longtime girlfriend, Stephanie Stelly, Jackson wore leg braces, and
       suffered from seizures. Stelly had observed Jackson having seizures 10 to 20 times over the
       previous seven years, and the seizures did not always present in the same way. On the day of
       the incident, Stelly returned to the apartment building while Jackson was being placed in the
       ambulance. She saw blood on Jackson’s face. His head was turning from side to side. Stelly
       had seen that motion before—when Jackson was going into or coming out of a seizure.
¶ 16        Piepenerink was unable to medically examine Jackson but opined that Jackson had not had
       a seizure. Over defense objection, Piepenerink described what was typical of a seizure: “What
       we have been trained if the patient responds as what we consider, [postictal]. It’s a medical
       term where you just—you are slow *** to respond. They are sluggish. They have no idea
       where they are at. They can’t answer questions. It’s kind of slow to respond usually normally.”
       Jackson was vocal and his movements brisk. Piepenerink admitted that he did not know
       whether Jackson had suffered a seizure before the paramedics arrived and that seizures can
       take different forms.
¶ 17        Stapleton also opined, over objection, that Jackson was not having a seizure: “I have never
       seen a person after post seizure act the way Mr. Jackson did that day. The people coming out of
       the seizures are more confused. *** Sometimes seem a little aggressive. They are scared. They
       are more confused, but they just don’t [d]o that type of aggression and strength for that matter.
       Usually when people are having seizures, all of the energy in their body is pretty well spent
       from the seizure itself, and they don’t just physically have the energy to carry on the way Mr.
       Jackson did that afternoon.” Stapleton believed that someone having a seizure would be unable
       to bite at another in the manner that Jackson did, or be as vocal as he was, or make the kind of
       statements Jackson made during the incident. Nor would someone having a seizure continue
       flailing like Jackson had at the hospital. Stapleton admitted that not all seizures have the same
       symptoms, and clamping down with the teeth is a symptom of a seizure.
¶ 18        During closing arguments, the prosecutor told the jury that they “heard four witnesses from
       our side. You heard one witness from the defense side. It’s up to you now to judge the
       credibility.” The prosecutor emphasized the paramedics’ opinions that Jackson was not having
       a seizure, noting that Jackson was not charged with biting Stapleton, thereby rendering the
       paramedics’ testimony more credible. Over objection, the prosecutor stated that “maybe
       smoking a lot of cannabis or something else” could explain Jackson’s behavior and reminded

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       the jury that “at least three different people on the stand *** told you that he smelt strong like
       cannabis.”
¶ 19       The jury pronounced Jackson guilty of battery and resisting a peace officer. Jackson’s
       counsel filed a posttrial motion, which did not address (i) the judge’s questioning of the jury
       before trial, (ii) the admissibility of the paramedics’ opinion testimony, (iii) the testimony from
       three of the State’s witnesses regarding the odor of cannabis, or (iv) the State’s closing
       argument. The motion was denied, and the trial court sentenced Jackson to 18 months of
       conditional discharge.

¶ 20                                             ANALYSIS
¶ 21                                     Sufficiency of the Evidence
¶ 22       Jackson contends he was having a medical emergency and lacked the mental state for
       either knowingly committing battery or knowingly resisting a peace officer. We must decide
       whether the evidence could reasonably uphold a finding of guilt beyond a reasonable doubt.
       People v. Cunningham, 212 Ill. 2d 274, 278 (2004). We view the evidence in the light most
       favorable to the State and determine if any rational trier of fact could have found the essential
       elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
       (1979); People v. Steele, 2014 IL App (1st) 121452, ¶ 20. We will only reverse a conviction if
       the proof was so improbable, implausible, or unsatisfactory that reasonable doubt exists as to
       the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).
¶ 23       The trier of fact assesses the credibility of the witnesses, determines the appropriate weight
       to give the testimony, and resolves inconsistencies in the evidence. Id. at 211. Our function on
       review is neither to retry the defendant nor substitute our judgment for the trier of fact’s
       judgment. Id. We will not reverse a conviction based on contradictory evidence presented by
       witnesses. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).
¶ 24       Battery occurs when, without legal justification, a person knowingly “makes physical
       contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3(a)(2) (West
       2010). A person resists a peace officer when he or she knowingly resists the performance by
       one known to the person as a peace officer. 720 ILCS 5/31-1(a) (West 2010). A person acts
       knowingly when he or she is “consciously aware that that result is practically certain to be
       caused by his conduct.” 720 ILCS 5/4-5(b) (West 2010). Intent, such as knowingness, may be
       proven by circumstantial evidence and inferred from the defendant’s action and the conduct
       surrounding it. People v. Phillips, 392 Ill. App. 3d 243, 259 (2009).
¶ 25       At trial and on this appeal, Jackson claims he was having an epileptic seizure during the
       incident, rendering his kicking of Officer Wojcik involuntary. He also claims that due to his
       mental state, he did not knowingly resist a peace officer. The State maintains Jackson did not
       present sufficient proof that he was having a seizure.
¶ 26       But even if, as the State suggests, we ignore Jackson’s contention that he was having a
       seizure, the evidence was insufficient to support a finding that Jackson had the requisite mental
       state to commit these crimes. Rather, there was an abundance of evidence—almost all of it
       from State witnesses—that Jackson was not “knowingly” acting during the incident. Both
       paramedics observed, on their arrival, that Jackson was “nervous” and “agitated.” Piepenerink
       thought Jackson was suffering from some type of psychological issue, and Stapleton thought
       Jackson’s mental state was altered. Though the paramedics were in uniform and driving a


                                                    -5-
       vehicle distinctively marked as an ambulance, Jackson repeatedly denied they were
       paramedics and continued to call 911. Jackson grew more and more upset, and neither the
       paramedics nor Officer Piech could communicate with him. Officer Wojcik arrived, and
       Jackson kicked him and resisted being handcuffed, but Officer Wojcik immediately
       recognized Jackson’s behavior as “irrational.” While, as the dissent points out, Jackson was
       speaking in complete sentences (infra ¶ 85)—those sentences included telling Piepenerink and
       Stapleton that they were not, in fact, paramedics. Jackson’s verbal coherence does not indicate
       a “knowing” state of mind indicating that he understood what was happening to him.
¶ 27       Whatever the cause of Jackson’s behavior—epilepsy, drug intoxication, some undiagnosed
       mental illness, or being Tasered 10 times—carries no consequence in as much as the State
       presented little-to-no evidence that Jackson behaved “knowingly.” When Jackson was
       thrashing in the vestibule in a “defending myself” manner, was he “consciously aware” that his
       thrashing would result in kicking Officer Wojcik? If Jackson did not recognize Piepenerink
       and Stapleton as paramedics, where was the evidence that he “knew” that Piech and Wojcik
       were police officers as the statute requires?
¶ 28       The dissent speculates that, even if Jackson’s behavior was caused by voluntary
       intoxication or mental illness, he would still need to plead that theory as an affirmative defense.
       Infra ¶ 90. But we analyze only the evidence presented by the State, not Jackson’s chosen trial
       strategy—after all, as defendant, Jackson was not required to present any evidence. He could
       have simply required the State to meet its burden of proof without ever mentioning the word
       “seizure.” We do not know why Jackson was behaving this way, but we do not need to know.
       Jackson’s mens rea of “knowing” was an element that the State needed to prove, and it failed to
       do so.
¶ 29       Jackson’s intent can be inferred from his conduct surrounding the battery and resistance, as
       well as the actions themselves. Phillips, 392 Ill. App. 3d at 259. When a defendant behaves
       “normally,” it is simple to make this inference—we assume that a rational person who kicks a
       police officer, or resists arrest, knows what he or she is doing. But here, all the State witnesses
       testified that Jackson was not behaving “normally,” and so we cannot infer from his actions (as
       the dissent does) that Jackson was “consciously aware” of what he was doing and the results of
       his actions. Rather, from the State’s witnesses’ testimony about his actions and conduct, we
       can infer that Jackson’s intent was not “knowing” in the sense that he was not “consciously
       aware” of the results of his actions.
¶ 30       The dissent accuses us of sidestepping the seizure argument and believes that we should
       limit our analysis to Jackson’s trial theory that he was suffering from a seizure. Infra ¶ 84. The
       defense attorney’s seizure argument or theory is not evidence. But Jackson challenges the
       sufficiency of the evidence under the Jackson v. Virginia standard, which requires us to
       examine the essential elements of the crime, and mens rea is undoubtedly essential. See In re
       Winship, 397 U.S. 358, 364 (1970) (constitution protects defendant against conviction except
       on proof beyond reasonable doubt of “every fact necessary to constitute the crime with which
       he is charged”); Illinois Pattern Jury Instructions, Criminal, No. 2.03 (3d ed. 1992) (defendant
       presumed innocent, and State has burden to prove guilt beyond reasonable doubt). In reversing
       the convictions, we are not doing Jackson’s legal analysis for him or raising a new claim on his
       behalf—we merely rely on the legal principles he cited in his brief and a thorough reading of
       the record.


                                                    -6-
¶ 31       We find the State’s evidence establishing Jackson’s mens rea or mental state, here his
       knowledge, was so conflicting, so unsatisfactory, as to create reasonable doubt of Jackson’s
       guilt. Accordingly, the evidence was insufficient to support Jackson’s convictions.

¶ 32                                          Plain Error Analysis
¶ 33        Jackson alleges several trial errors: (i) the trial court failed to follow Illinois Supreme Court
       Rule 431(b) (eff. July 1, 2012) and ask potential jurors whether they understood and accepted
       certain principles, (ii) the trial court should not have admitted evidence that Jackson smelled of
       marijuana, (iii) the trial court should not have admitted the paramedics’ “lay opinion”
       testimony that Jackson had not had a seizure, and (iv) the State made improper statements in
       closing argument. Jackson acknowledges his trial counsel failed to preserve these errors;
       nevertheless, he argues they merit reversal under the plain error doctrine. The burden falls to
       Jackson to show a clear or obvious error occurred and either (i) the evidence is so closely
       balanced that the error, standing alone, threatened to tip the scales against him regardless of the
       seriousness of the error or (ii) the error was so serious that it affected the trial’s fairness and
       challenged the integrity of the judicial process. People v. Thompson, 238 Ill. 2d 598, 613
       (2010).
¶ 34        The dissent states that the plain error doctrine is “(over)use[d].” Infra ¶ 91. It is not for us to
       criticize the existence of a doctrine laid out by our supreme court (adhered to as recently as
       People v. Sebby, 2017 IL 119445, ¶ 48) or blame appellate attorneys for using it. (After all, it is
       rarely the client’s fault that his or her trial attorney failed to preserve an error.) And we do not
       share the dissent’s concern that plain error “erodes the proper deference we owe to trial
       courts.” Infra ¶ 91. Rather, plain error ensures the integrity of the judicial process and the
       protection of the defendant’s right to a fair trial, and has been codified in Illinois Supreme
       Court Rule 615(a).

¶ 35                        The Trial Court’s Questioning of Potential Jurors
¶ 36       Jackson argues that the trial court’s failure during jury selection to ask potential jurors
       whether they both understood and accepted the principles of Illinois Supreme Court Rule
       431(b) constitutes plain error.
¶ 37       Supreme Court Rule 431(b) mandates that a trial court ask potential jurors whether they
       “understand[ ] and accept[ ]” these four principles: (i) the defendant is presumed innocent, (ii)
       the State must prove the defendant guilty beyond a reasonable doubt, (iii) the defendant is not
       required to offer any evidence on his or her own behalf, and (iv) the defendant’s failure to
       testify cannot be held against him or her. Ill. S. Ct. R. 431(b) (eff. July 1, 2012); Thompson,
       238 Ill. 2d at 606. Failure to question the jurors on each of these four principles violates the
       rule. Thompson, 238 Ill. 2d at 607. Further, the trial court should use the words “understand
       and accept”; asking jurors if they disagree with these principles does not suffice. People v.
       Belknap, 2014 IL 117094, ¶ 46.
¶ 38       During voir dire, the trial court neglected to use the words “understand and accept,” rather
       the judge asked potential jurors if they disagreed with the four principles or would be unable to
       follow them. The State rightly concedes error. Id.




                                                      -7-
¶ 39                                   Evidence of Marijuana Usage
¶ 40        Jackson argues the admission of testimony that both he and the vestibule area smelled of
       marijuana was plain error. “Other-crimes” evidence may not be admitted to prove a
       defendant’s propensity to commit a crime because a jury might convict the defendant not based
       on the evidence, but that the defendant deserves punishment. People v. Placek, 184 Ill. 2d 370,
       385 (1998). Nonetheless, this type of evidence can be admitted to prove intent, modus
       operandi, identity, motive, absence of mistake, or any material fact other than propensity that
       is relevant to the case. People v. Donoho, 204 Ill. 2d 159, 170 (2003). Even when the evidence
       is admissible, the trial court must weigh its prejudicial effect versus its probative value and
       exclude it if too prejudicial. Placek, 184 Ill. 2d at 385.
¶ 41        The State argues that the testimony regarding the cannabis smell was relevant to the
       “continuing narrative” of Jackson’s arrest as it informed the actions of both the police and the
       paramedics. People v. Thompson, 2013 IL App (1st) 113105, ¶ 102 (admitting evidence of
       defendant’s marijuana usage where it was “intertwined” with crime). But none of the evidence
       presented regarding the cannabis smell was, in fact, part of any continuing narrative. Even
       crimes that occur in close proximity will not be admitted as part of a continuing narrative “if
       the crimes are distinct and undertaken for different reasons at a different place at a separate
       time.” (Internal quotation marks omitted.) People v. Adkins, 239 Ill. 2d 1, 33 (2010). Assuming
       the cannabis smell indicated that Jackson had illegally used marijuana, no medical evidence
       was introduced as to when or where he had used it or that he was still under its influence during
       the incident. There was nothing linking possible marijuana use with Jackson’s behavior in the
       vestibule. The dissent assumes this connection (infra ¶ 93), but it was not made by the
       evidence.
¶ 42        And nothing indicates that the marijuana smell impacted anyone’s actions, either Jackson’s
       or the police’s and paramedics’. Officer Wojcik testified that the vestibule area smelled
       strongly of burnt cannabis but admitted that he did not know where the smell had come from.
       Paramedics Piepenerink and Stapleton both testified that Jackson smelled like marijuana. But
       none of these three witnesses attributed Jackson’s irrational behavior to possible marijuana
       use, and none testified that their own decisions or actions had in any way been influenced by
       the smell. (In fact, the only person who drew a connection between the marijuana smell and
       Jackson’s behavior was the prosecutor in closing argument, which we will address.) These
       witnesses consistently testified that Jackson was irrational, uncooperative, and agitated and
       that they were not sure why he was behaving the way he did.
¶ 43        The State also argues that the cannabis-smell testimony showed Jackson’s actions were
       intentional, not accidental. The State cites People v. Haley, 2011 IL App (1st) 093585, where
       the trial court admitted evidence that Haley had pushed a fisherman into Montrose Harbor
       about a month before he pushed another fisherman into the same harbor. Id. ¶ 59. We held that
       this evidence showed that Haley’s second action was not accidental or a mistake. But here the
       State never explained how a smell of cannabis, or cannabis use, could show that Jackson
       intentionally, rather than accidentally, kicked Officer Wojcik. Unlike Haley, there is no
       obvious connection between the first action (presumably, Jackson using marijuana) and the
       second action (kicking Officer Wojcik and resisting arrest). Admission of this evidence was
       error.
¶ 44        The dissent argues that the smell showed that Jackson’s actions were not accidental or
       involuntary. Infra ¶ 92. The dissent does a better job of justifying the use of this evidence than

                                                   -8-
       the State did at trial, where, again, it failed to connect Jackson’s actions to the marijuana smell
       through the evidence (instead of speculating during closing argument).
¶ 45       The dissent also argues (based on a hypothetical posed at oral argument) that if Jackson had
       smelled of alcohol, rather than marijuana, the evidence might have been admissible. Infra ¶ 93.
       But again, the State would need to establish its relevance by connecting the alcohol smell to the
       rest of the evidence. For example, if the police had conducted a field sobriety test, then the
       smell of alcohol would be admissible to explain their course of conduct. Or, if the paramedics
       had opined that Jackson seemed drunk, the alcohol smell would have been admissible to justify
       their opinions. Here, there was no such evidence, either from the police or the paramedics.
       They testified that Jackson smelled of marijuana but did not testify that this smell affected their
       decisions or suggest that Jackson was high. To repeat, the marijuana smell was irrelevant
       because the State failed to establish a connection to the rest of the evidence—the State (and the
       dissent) merely assume one.

¶ 46                         “Lay Opinion” Testimony From the Paramedics
¶ 47        Jackson contends the trial court erred by admitting the medical opinion testimony of
       Piepenerink and Stapleton that Jackson was not having a seizure during the incident. The trial
       court did not qualify either paramedic as an expert witness, so Jackson argues they could only
       offer lay witness testimony.
¶ 48        Lay witnesses can testify based on a rational perception of what they observed if it is
       helpful for the determination of a fact in issue. Ill. R. Evid. 701(a), (b) (eff. Jan. 1, 2011);
       People v. Donegan, 2012 IL App (1st) 102325, ¶ 42. For example, a lay witness could describe
       a car accident that he or she observed. Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108
       Ill. 2d 217, 222 (1985). But, lay witnesses cannot testify to an opinion based on scientific,
       technical, or other specialized knowledge. Ill. R. Evid. 701(c) (eff. Jan. 1, 2011); Donegan,
       2012 IL App (1st) 102325, ¶ 42. The purpose of a lay witness is to assist the jury in drawing
       inferences based on the testimony. Freeding-Skokie Roll-Off Service, 108 Ill. 2d at 222.
¶ 49        In some circumstances, a lay witness may offer his or her opinion if the facts cannot
       otherwise be adequately presented so that the jury could “form an opinion or reach an
       intelligent conclusion” without the witness’s opinion. People v. Novak, 163 Ill. 2d 93, 102
       (1994), abrogated on other grounds by People v. Kolton, 219 Ill. 2d 353 (2006). Should a lay
       witness offer an opinion, it must be based on his or her personal observations and recollection
       of concrete facts, not on specialized knowledge. Id. at 103. When the jury as well as the
       witness can draw the inferences and conclusions, then the witness’s opinion is superfluous. For
       example, a lay witness could describe a car accident but not opine as to which driver was
       negligent in causing the accident because the jury could draw its own inferences from the
       description. Freeding-Skokie, 108 Ill. 2d at 222-23. The opinion testimony also is improper
       and prejudicial when it goes to the ultimate question of fact to be decided by the jury. People v.
       Brown, 200 Ill. App. 3d 566, 579 (1990) (holding witness opinion testimony about whether
       complainant engaged in forced or consensual sex was improper and prejudicial because it went
       to ultimate question of fact).
¶ 50        Expert witnesses differ from lay witnesses—they have experience and qualifications that
       afford them knowledge beyond the average citizen that aids the jury in weighing the evidence.
       Novak, 163 Ill. 2d at 104. It is within the discretion of the trial court to determine whether a
       witness has been qualified as an expert. People v. Jordan, 103 Ill. 2d 192, 208 (1984). The

                                                    -9-
       qualified expert’s opinion must be based on scientific theories that have gained general
       acceptance in his or her field. Id. The expert must offer the basis for his or her opinion using a
       reasoned analysis or the testimony is rendered invalid. Lombardo v. Reliance Elevator Co.,
       315 Ill. App. 3d 111, 123 (2000).
¶ 51        Piepenerink’s lay opinion testimony was improper under Illinois Rule of Evidence 701
       (eff. Jan. 1, 2011), and he was not properly qualified as an expert witness. See Ill. R. Evid. 702
       (eff. Jan. 1, 2011). Piepenerink testified: “What we have been trained if the patient responds as
       what we consider, [postictal]. It’s a medical term where you just—you are slow *** to
       respond. They are sluggish. They have no idea where they are at. They can’t answer questions.
       It’s kind of slow to respond usually normally.” This testimony went outside of the bounds of
       Piepenerink’s personal observations and recollection of the situation. Novak, 163 Ill. 2d at 103;
       see also Ill. R. Evid. 701 (eff. Jan. 1, 2011) (nonexpert witness must limit testimony to opinions
       or inferences which are “not based on scientific, technical, or other specialized knowledge
       within the scope of Rule 702”). He provided testimony beyond the common knowledge and
       experience of a layperson, and offered a speculative opinion based on specialized knowledge.
       Novak, 163 Ill. 2d at 103. His recitation of a technical medical term and its meaning as his basis
       for determining that Jackson was not suffering from a seizure is not the type of information a
       jury member or layperson would possess. People v. Mertz, 218 Ill. 2d 1, 72 (2006).
¶ 52        Piepenerink was never offered or qualified as an expert on seizures and only testified to his
       education and experience as a paramedic. He did testify that he had encountered people having
       seizures and received training on how people with seizures behave or react, yet provided
       insufficient detail on how much training he received on seizures specifically or what the
       training involved. Unlike the dissent (infra ¶ 96), we do not believe that Piepenerink met the
       qualifications to be admitted as an expert witness in whether Jackson was suffering from a
       seizure (though he could have been qualified as an expert in paramedic practice). See Ill. R.
       Evid. 702 (eff. Jan. 1, 2011). He had training as a paramedic, not in the diagnosis of seizures.
       (And, though the dissent argues that the paramedics could have been qualified as expert
       witnesses (infra ¶ 96), the State never made this argument in its brief.)
¶ 53        The same applies to Stapleton who testified to his education, training, and experience as a
       paramedic but did not testify to having any specialized training in seizures. He was not offered
       or qualified as an expert. Stapleton testified: “I have seen a lot of people *** having seizures
       during and after, and I in my career I have never seen a person after post seizure act the way
       Mr. Jackson did that day. The people coming out of the seizures are more confused *** [m]ore
       confused, sometime seem a little aggressive. They are scared. They are more confused, but
       they just don’t [show] that type of aggression and strength for that matter. Usually when people
       are having seizures, all of the energy in their body is pretty well spent from the seizure itself,
       and they don’t just physically have the energy to carry on the way Mr. Jackson did that
       afternoon.” Like Piepenerink, Stapleton’s opinion testimony depended on specialized
       knowledge and training that would not be common knowledge to a layperson. Mertz, 218 Ill.
       2d at 72. And, it was not admissible as expert testimony because Stapleton was not qualified in
       that area.
¶ 54        As for Stelly, the dissent asks why her opinion (that Jackson looked like he was coming out
       of a seizure) was admissible but Piepenerink’s and Stapleton’s were not. Infra ¶ 97. Stelly’s
       opinion was admissible because hers was proper lay opinion testimony under Rule 701. She
       relied on her own perceptions and memories of Jackson’s behavior, and her knowledge of his

                                                   - 10 -
       medical history, but did not purport to rely on any scientific or specialized knowledge gained
       through training or education. If Piepenerink and Stapleton had limited their testimony to their
       own observations of Jackson’s behavior, it would have been admissible.
¶ 55       The State relies on People v. Botsis, 388 Ill. App. 3d 422 (2009), to argue that the
       paramedics should be allowed to offer their opinions on whether a person is not suffering from
       a seizure based on their experience. In Botsis, two lay witnesses testified that after a car crash,
       the driver of one car was convulsing and foaming at the mouth and opined that the driver had
       been having a seizure. Id. at 442. The lay witnesses in Botsis did not rely on specialized
       training or knowledge, and the court determined such experience was unnecessary because
       neither witness was attempting a medical diagnosis. Id. at 443. But see Steele v. Provena
       Hospitals, 2013 IL App (3d) 110374, ¶¶ 47-49 (trial court abused discretion in allowing lay
       witnesses to testify that patient’s rash “ ‘looked like chicken pox,’ ” as testimony was
       functional equivalent of medical diagnosis and witnesses were not qualified as experts).
¶ 56       The State argues that the reverse should be allowable and that laypersons should be able to
       opine that a person is not having a seizure. But, this type of opinion would require technical
       knowledge and skills beyond that of a layperson. While some symptoms, such as convulsions,
       might indicate a seizure, the absence of a seizure cannot be opined with certainty by a
       layperson based solely on their observations. The State’s theory would lead us down some
       ridiculous paths. For example, under Botsis, a layperson could opine that because John has a
       bone sticking out of his leg, John’s leg is broken. As the State would have it, that same
       layperson could opine that, since John does not have a bone sticking out of his leg, his leg is not
       broken—regardless of what might be going on below the skin’s surface. We decline the State’s
       invitation to turn laypeople into medical experts based on what is obvious to the naked eye.
¶ 57       As lay witnesses, both Piepenerink and Stapleton could have described their observations
       of Jackson without stating their opinions. Their observations were sufficient to allow the jury
       members to draw their own conclusions as to whether Jackson was suffering from a seizure.
       Freeding-Skokie Roll-Off Service, 108 Ill. 2d at 222. The admission of these lay opinions was
       error because it violated Illinois Rule of Evidence 701 and went to the ultimate question of fact
       to be decided by the jury. Brown, 200 Ill. App. 3d at 579.

¶ 58                            Prosecutor’s Comments in Closing Argument
¶ 59        First, Jackson argues that the prosecutor improperly commented on his failure to testify at
       trial, and tried to shift the burden of proof, when the prosecutor told the jury they “heard four
       witnesses from our side. You heard one witness from the defense side. It’s up to you now to
       judge the credibility.”
¶ 60        A defendant has the constitutional right not to testify, and therefore a prosecutor cannot
       comment on the exercise of that right. People v. Edgecombe, 317 Ill. App. 3d 615, 620 (2000).
       The court should consider whether the prosecutor’s comment was “intended or calculated” to
       direct the jury’s attention to the defendant’s decision. Id. Here, the prosecutor did not even
       mention Jackson, let alone his failure to testify; viewing the prosecutor’s statement as a
       comment on Jackson’s failure to testify would require the jury to extrapolate quite a bit. We do
       not find error in this comment. Cf. People v. Smith, 402 Ill. App. 3d 538, 542, 544 (2010)
       (prosecutor improperly commented on defendant’s failure to testify by saying, “ ‘[h]ave you
       heard any evidence that he didn’t know’ ” and “ ‘[y]ou didn’t hear anything from that witness
       stand’ ”).

                                                   - 11 -
¶ 61        Similarly, the comments did not improperly shift the burden of proof. While the defense
       has no obligation to present evidence, the prosecution may comment on evidence that the
       defendant does present. People v. Phillips, 127 Ill. 2d 499, 527 (1989). Merely stating that both
       sides had presented witnesses, and it was the jury’s job to judge the witnesses’ credibility is an
       accurate statement and not improper. Cf. Smith, 402 Ill. App. 3d at 542, 544 (“ ‘you didn’t hear
       any evidence that he wasn’t trying to kill anyone’ ” improperly shifted burden of proof to
       defendant).
¶ 62        Next, Jackson argues that the prosecutor tried to bolster the credibility of the paramedics by
       telling the jury that Jackson could have been charged with battery for biting Stapleton and that
       “those paramedics have nothing to gain in this case.”
¶ 63        Prosecutors may argue the credibility of witnesses. People v. Williams, 2015 IL App (1st)
       122745, ¶ 12. They may not, however, bolster a witness’s credibility with the power of the
       prosecutor’s office as (i) it might give the jury the impression that “secret” evidence, known
       only to the State, supports the charge or (ii) it might induce jurors to trust the State’s judgment
       over their own evaluation of the evidence. Id. ¶ 13. The prosecutor’s comment did not do
       either; the prosecutor simply argued that the paramedics did not have a motive to lie. This is
       slightly illogical (whether or not the paramedics were the named “victims,” they would not
       gain in any material way from a conviction) but not improper argument.
¶ 64        Jackson further argues that the prosecutor’s statement that he could have been charged with
       battery on Stapleton was not based on the evidence. But Stapleton did testify that Jackson bit
       him on the arm (getting a mouthful of sweatshirt). The comment was proper.
¶ 65        Next, Jackson argues that in rebuttal closing argument, the prosecutor relied on the
       erroneously admitted opinion testimony from the paramedics. As explained, this evidence was
       not proper lay opinion testimony. The closing argument accurately recounted that “two
       paramedics with training and personal experience and professional experience of seizures tell
       you that in their opinion, at no point, did they believe that it was a seizure, either before, or
       during, or after.” The prosecutor’s rebuttal reference to this testimony exacerbated the
       prejudicial impact of its admission and was error.
¶ 66        Jackson argues that in rebuttal closing argument, the prosecutor improperly relied on the
       “cannabis smell” by theorizing that “maybe smoking a lot of cannabis or something else”
       explained Jackson’s behavior and misstated the evidence by telling the jury that at least three
       witnesses testified that Jackson smelled strongly of cannabis. As discussed, the trial court erred
       by admitting the cannabis-smell testimony. The prosecutor attempted to connect the cannabis
       smell to the alleged crimes, but that theory was based on the most tenuous evidence. None of
       the three witnesses testified that Jackson seemed intoxicated by marijuana. On the contrary,
       they testified that Jackson’s behavior was “irrational,” but they did not know why. No medical
       evidence indicated that marijuana caused, or could cause, Jackson’s behavior.
¶ 67        Further, the prosecutor’s statement that Jackson had used “something else” other than
       cannabis was based on no evidence whatsoever. And finally, the prosecutor misstated the
       evidence in saying that three witnesses testified that Jackson smelled of marijuana. In fact,
       only Piepenerink and Stapleton testified that Jackson smelled of cannabis; Wojcik testified that
       the vestibule smelled like cannabis.
¶ 68        At issue was the explanation for Jackson’s behavior: there was no dispute that Jackson
       kicked Wojcik and resisted the officers. Throughout, Jackson’s attorney presented the theory
       that Jackson’s behavior had actually been caused by a seizure. The prosecutor needed an

                                                   - 12 -
       alternative explanation that would not undermine Jackson’s legal culpability. The explanation
       theorized—that marijuana use caused agitation and violent outbursts—was not based on the
       evidence. This was error.

¶ 69                                               Serious Error
¶ 70       Jackson claims that two of the errors—admission of the other-crimes evidence and the
       State’s closing argument—are “serious” errors that affected the trial’s fairness and challenged
       the integrity of the judicial process. Thompson, 238 Ill. 2d at 613.
¶ 71       As we have said, other-crimes evidence endangers a fair trial due to the possibility that the
       jury might convict a defendant as “a bad person who deserves punishment,” rather than
       because the elements of the crime have been proven. Placek, 184 Ill. 2d at 385. In light of this
       danger, other courts have held that erroneous admission of other-crimes evidence could
       constitute a “serious” error under the plain error doctrine. People v. Jackson, 399 Ill. App. 3d
       314, 321 (2010); People v. Norwood, 362 Ill. App. 3d 1121, 1129 (2005). The State argues that
       Norwood is unpersuasive in that the Norwood court ultimately did not review the admission of
       evidence for plain error. This is because the Norwood court held that the evidence was
       admissible, but also stated that “erroneous admission of such other-crimes evidence could
       deprive a defendant of a fair trial.” 362 Ill. App. 3d at 1129.
¶ 72       The State argues, relying on People v. Strawbridge, 404 Ill. App. 3d 460, 468 (2010), that
       the error cannot possibly be serious enough to meet the second-prong plain error standard as
       the admission of other-crimes evidence can be reviewed for harmlessness if the error is
       properly preserved. We disagree with Strawbridge and the State’s analysis. Whether an error is
       reviewed under the harmless error doctrine or the plain error doctrine has nothing to do with
       the seriousness of the error or the prejudice resulting from it: rather, it is whether the error has
       been properly preserved. With the exception of “structural” errors (a limited class), any error,
       no matter how serious or trivial, will be reviewed under the harmless error doctrine if it
       garnered a contemporaneous objection and inclusion in a posttrial motion. Without that
       preservation, it will be reviewed under the plain error doctrine.
¶ 73       The State theorizes that a defendant’s attorney could “sit” on an error and deliberately
       leave it unpreserved to avoid harmless error analysis. Our supreme court rejected a similar
       concern as “fanciful and denigratory to the defense bar.” Sebby, 2017 IL 119445, ¶ 71. For a
       defense attorney to do so would be a bad strategy, for a defense attorney’s best and earliest
       opportunity to avoid prejudice to his or her client involves bringing that error to the trial court’s
       attention, in other words, to preserve the error. Further, the defendant is advantaged by
       harmless error analysis since it is the State’s burden to prove the error harmless beyond a
       reasonable doubt. No competent defense attorney would consider deliberately prejudicing his
       or her client at trial in the hope that it might later be overturned on appellate review: it would be
       “a foolhardy gamble with the defendant’s liberty.” Id.
¶ 74       We find that the admission of the other-crimes evidence to be “serious” error. As
       explained, the evidence of the marijuana smell was purely propensity evidence and of little
       probative value. Though it had no relevance in explaining Jackson’s behavior in the vestibule,
       the prosecutor exaggerated its importance during closing argument by trying to attribute
       Jackson’s irrationality to marijuana use. This is precisely the type of situation where evidence
       can “overpersuade” the jury and require a new trial. Jackson, 399 Ill. App. 3d at 321-22
       (finding admission of evidence of defendant’s drug use is “serious” under plain error doctrine).

                                                    - 13 -
¶ 75        We also must consider whether the prosecutor’s improper comments during closing
       argument (regarding the marijuana smell and the opinion testimony) constituted “serious”
       error. Some types of closing argument can rise to this level, such as when the prosecutor makes
       highly inflammatory comments or misstates the burden of proof. See People v. Johnson, 208
       Ill. 2d 53, 84 (2003); People v. Coleman, 158 Ill. 2d 319, 345 (1994). Not all improper
       argument is “serious” error under the plain error doctrine. See People v. Adams, 2012 IL
       111168, ¶¶ 16, 24 (prosecutor’s comment that police witness would not risk job by planting
       evidence was impermissible speculation but not so serious that it affected fairness of trial). We
       believe the prosecutor’s comments fall into the latter category: improper, but not so serious
       that they denied Jackson a fair trial or cast doubt on the reliability of the judicial process.

¶ 76                                 The Evidence Is Closely Balanced
¶ 77       Next, we must consider whether the evidence was closely balanced. (Though we have
       already found the evidence legally insufficient.) There is no dispute that Jackson’s acts met the
       actus reus elements of battery and resisting arrest; the only question is whether he met the
       mens rea requirement of “knowingly.” The State argues that this mens rea can be inferred from
       Jackson’s acts of kicking and resisting, and the paramedics’ testimony that Jackson was not
       having a seizure (which we already have held was inadmissible opinion testimony).
¶ 78       Even if we do not consider Jackson’s trial theory that he was suffering a seizure, there was
       substantial evidence indicating that Jackson did not “knowingly” perform those actions.
       Notably, this evidence all comes from the testimony of state witnesses, and those four
       witnesses all testified, with remarkable consistency, that Jackson was behaving irrationally
       throughout this encounter. When the paramedics arrived, Jackson was “nervous,” “upset,” and
       “agitated,” suffering from some type of psychological issue and an altered mental state.
       Though Jackson had called for an ambulance, he refused to believe that the uniformed
       paramedics standing before him were in fact paramedics and did not recognize the clearly
       marked ambulance outside the building—going so far as to call 911 yet again for an ambulance
       that had already arrived. Stapleton flatly stated that Jackson’s “mental status was altered”
       during the encounter. Piepenerink thought that Jackson was either under the influence of some
       unknown controlled substance or was suffering from some type of psychological issue, and
       consequently, Jackson did not understand what was happening. Officer Piech was told on his
       arrival that Jackson was “mentally unstable” and possibly under the influence. Officer Piech,
       like the paramedics, had difficulty communicating with Jackson. By the time Officer Wojcik
       arrived, Jackson was screaming and fighting in the vestibule, but even Wojcik recognized
       Jackson’s behavior as “irrational.” From all this contradictory evidence, the dissent still
       concludes that the evidence supported the inference that Jackson “knowingly” committed the
       crimes. We disagree.
¶ 79       When error occurs in a close case, we will “err on the side of fairness, so as not to convict
       an innocent person.” People v. Herron, 215 Ill. 2d 167, 193 (2005); see also Sebby, 2017 IL
       119445, ¶ 78. The State has conceded that Rule 431 was violated, and though “[i]t is not
       inevitable that a jury who receives faulty instructions on the Zehr principles is biased ***, it is
       possible. And if it is possible, it is also possible that those faulty instructions contributed to the
       result.” Sebby, 2017 IL 119445, ¶ 78. We still do not know why Jackson behaved as he did that
       night—whether he was under the influence, having a seizure, or suffering from some unknown
       psychological issue. The State was required to prove that Jackson acted “knowingly,” and the

                                                    - 14 -
       evidence was not there. Importantly, several of the errors we have found (the improper
       admission of other crimes evidence, the improper lay opinion testimony, and improper closing
       argument) directly relate to the State’s attempt to prove Jackson’s mens rea. We will not affirm
       a conviction where the State failed to prove Jackson’s mens rea or mental state based on
       inadmissible lay witness opinion testimony.
¶ 80        Since we are reversing Jackson’s convictions, we need not address his arguments that his
       trial counsel was ineffective.

¶ 81      Reversed.

¶ 82       JUSTICE MASON, dissenting:
¶ 83       The evidence is undisputed that Jackson kicked Officer Wojcik and resisted Officer
       Piech’s efforts to arrest him. The only issue the jury was called on to decide was whether
       Jackson acted knowingly, as the State claimed, or whether his actions were the involuntary
       result of a seizure. Jackson never separately claimed in the trial court that he lacked the mental
       capacity to act knowingly. Because a rational jury could have concluded that Jackson—who
       was conscious and speaking coherently, albeit irrationally, during the episode—acted
       knowingly, there was sufficient evidence to sustain his convictions. Therefore, I respectfully
       dissent from the majority’s decision to reverse Jackson’s convictions outright.
¶ 84       In reaching the conclusion that the evidence was insufficient to sustain Jackson’s
       conviction, the majority sidesteps the issue of whether Jackson was having a seizure and
       instead holds that whatever caused Jackson’s behavior—epilepsy, drug intoxication, an
       undiagnosed mental illness, or being Tasered—is irrelevant given the State’s failure to prove
       that Jackson’s actions were knowing. Specifically, the majority concludes that the testimony
       from the responding officers and paramedics that Jackson was “nervous,” “agitated,” and
       “irrational,” coupled with Jackson’s failure to recognize the ambulance or the paramedics,
       inexorably leads to the conclusion that Jackson was not consciously aware of his actions.
       Supra ¶ 78. In my view, Jackson’s behavior was not inconsistent with acting knowingly, and
       the evidence was sufficient for a reasonable fact finder to conclude that Jackson had the
       requisite mental state to commit battery and resist arrest.
¶ 85       As the majority points out, intent is rarely proved by direct evidence, and may be inferred
       from the defendant’s actions and the surrounding circumstances. Supra ¶ 24 (citing Phillips,
       392 Ill. App. 3d at 259). Here, the unrebutted testimony of all four state witnesses established
       that Jackson was wildly swinging his arms and legs in a confined space while in the presence
       of uniformed police officers. When Stapleton attempted to assist the officers by holding down
       Jackson’s arm, Jackson tried to bite him. Jackson was also speaking in complete sentences
       such as “get away from me,” “they are trying to kill me,” and “somebody help me.” Based on
       this evidence, it is reasonable to infer that Jackson was consciously aware that his behavior
       would result and was intended to result in physical contact with those officers. This is
       particularly true since Jackson kicked Officer Wojcik three to five times in quick succession.
       The repeated kicking of a person suggests a deliberate, conscious action, rather than the
       involuntary movements of a mentally ill or seizing patient. This is precisely the inference the
       jury, as the finder of fact, was entitled to draw.
¶ 86       While Jackson maintains that he presented unrebutted evidence that he was having an
       epileptic seizure at the time of his arrest (and so could not have acted knowingly), this is an

                                                   - 15 -
       overstatement of the record. To be sure, Jackson’s long-time girlfriend testified that Jackson’s
       movement of his head from side to side as he was being loaded into the ambulance was
       indicative of his behavior when he was going into or coming out of a seizure. However, the
       paramedics flatly contradicted her testimony. Both Piepenerink and Stapleton testified that
       Jackson’s behavior was not consistent with a patient experiencing a seizure. In particular, they
       noted that after a seizure, patients are generally sluggish, confused, and slow to respond.
       Jackson, in contrast, was very vocal and exhibited significant strength as paramedics loaded
       him into the ambulance and during the trip to the hospital. This conflicting testimony gave rise
       to a question of fact, which the jury reasonably resolved in favor of the State. See People v.
       Simmons, 2016 IL App (1st) 131300, ¶ 93 (holding that conflict in testimony was the jury’s
       responsibility to resolve).
¶ 87        The majority emphasizes Jackson’s irrational behavior in support of its conclusion that no
       reasonable fact finder could find that his actions were knowing. Supra ¶ 26. But a defendant’s
       irrational behavior does not necessarily indicate that he was not consciously aware of the
       results of his actions. For example, the consumption of drugs or alcohol may cause a defendant
       to act irrationally or become agitated, but if that consumption was voluntary, a defendant can
       still be criminally responsible for his conduct. See 720 ILCS 5/6-3 (West 2012) (intoxicated
       person is criminally responsible for conduct unless the intoxication is involuntary). Likewise, a
       defendant who claims to be suffering from a “psychological issue” may be irrational, but he is
       not automatically relieved of all criminal responsibility for his actions; he must plead and
       prove that he lacked the capacity to appreciate the criminality of his conduct. People v.
       Burnett, 2016 IL App (1st) 141033, ¶ 46; see also 720 ILCS 5/6-2(c) (West 2012) (person who
       was not insane at the time offense committed, but was suffering from a mental illness, is not
       relieved of responsibility for his conduct and may be found guilty but mentally ill). Thus,
       Jackson’s irrationality, standing alone, does not render the evidence insufficient to sustain his
       convictions.
¶ 88        Jackson’s defense at trial was that he was having a seizure and, therefore, his actions were
       involuntary. This was emphasized both in defense counsel’s opening statement (“We are
       talking about a seizure, ladies and gentlemen. If they want to describe that as being out of
       control, then so be it, but I submit to you that none of his actions were voluntary.”) and his
       closing argument (“If this is movement because of the seizure, if indeed he was having a
       seizure, then the movements were [involuntary].”). Jackson’s counsel repeatedly argued that
       his client’s actions were not “knowing” because they were involuntary. Through the testimony
       of four witnesses present during the encounter, the State sustained its burden to show, beyond a
       reasonable doubt, that Jackson’s defense—involuntary contact with the police officers as a
       result of a seizure—was not supported by the evidence.
¶ 89        Consistent with his position during trial, Jackson’s posttrial motion specifically argued that
       the evidence supported his claim that his movements were involuntary—and thus not
       “knowing”—because they were the result of a seizure. And in this court, Jackson’s briefs do
       not refer to a mental illness that rendered him incapable of forming the requisite intent. Like
       the defense he advanced at trial, Jackson argues here that he was unable to control his actions
       because of a seizure: “[T]he evidence presented at trial demonstrates that Jackson’s conduct
       was involuntary, inadvertent or accidental because he was suffering from an epileptic seizure
       after he called 911. Thus, he was incapable of controlling his body and his act of kicking was
       an involuntary act for which he cannot be held accountable.” (Emphasis added.)

                                                   - 16 -
¶ 90        Despite the lack of any argument regarding Jackson’s mental capacity advanced in the trial
       court or on appeal, the majority reverses Jackson’s conviction outright based on its conclusion
       that Jackson suffered from some unidentified mental condition that rendered him incapable of
       acting knowingly. But Jackson never requested that the jury be instructed regarding a verdict
       of guilty but mentally ill. See Illinois Pattern Jury Instructions, Criminal, No. 24-25.01I (4th
       ed. 2000). And there was no testimony at trial that, apart from seizures, Jackson suffered from
       any mental illness. Thus, the majority conflates Jackson’s claim that he lacked control over his
       bodily movements because of a seizure with a different defense—never raised at trial—that
       Jackson lacked the mental capacity to intentionally commit a battery or resist arrest based on
       his “irrational” behavior. Because this issue was never raised by Jackson, we should refrain
       from addressing it. People v. Givens, 237 Ill. 2d 311, 323 (2010) (“ ‘a reviewing court should
       not normally search the record for unargued and unbriefed reasons to reverse a trial court
       judgment’ ” (emphasis in original) (quoting Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379
       (1978))).
¶ 91        I would further find that none of the other trial errors identified by Jackson warrants a new
       trial. In the first place, none of the errors Jackson cites—the admission of testimony regarding
       (1) the cannabis smell and (2) opinion testimony from the paramedics that Jackson had not had
       a seizure, prosecutorial misconduct during closing argument, and failure to comply with Rule
       431(b)—was properly preserved. Accordingly, Jackson urges us to review for plain error and
       makes a separate claim of ineffective assistance of counsel. I am troubled by the continued
       (over)use of these methods to review unpreserved error, as it erodes the proper deference we
       owe to trial courts. For example, had it been properly preserved, we would review the
       admission of the “other crimes” evidence (i.e. the cannabis smell), as well as the paramedics’
       opinion testimony, for an abuse of discretion. See People v. Williams, 238 Ill. 2d 125, 136
       (2010); Simmons, 2016 IL App (1st) 131300, ¶ 135. And, as I discuss below, I would be unable
       to find an abuse of discretion on either issue. But an assertion of plain error requires us to
       undertake what is essentially de novo review of rulings that the trial court was never asked to
       make and is better equipped to address. See People v. Downs, 2015 IL 117934, ¶ 15 (in
       determining whether an error occurred for purposes of undertaking plain error analysis,
       standard of review is de novo). Plain error is “a narrow and limited exception” to procedural
       forfeiture and is “not a general saving clause preserving for review all errors affecting
       substantial rights.” (Internal quotation marks omitted.) Herron, 215 Ill. 2d at 177. The habitual
       use of plain error to reach forfeited issues contravenes our supreme court’s definition of the
       doctrine and renders the exception the rule.
¶ 92        In any event, even under plain error review, I do not believe any of these alleged errors
       warrant a new trial. Initially, I find no error in the admission of evidence regarding the
       cannabis smell or the paramedics’ testimony that Jackson was not suffering from a seizure.
       With regard to the testimony of the two paramedics that Jackson smelled of cannabis, I do not
       agree that this was inadmissible “other crimes” evidence. Our supreme court has held that
       while evidence of other crimes may not be used to show a defendant’s propensity for criminal
       conduct, it may be used to show that “the act in question was not performed inadvertently,
       accidently, involuntarily, or without guilty knowledge.” People v. Wilson, 214 Ill. 2d 127, 136
       (2005). The latter was precisely the purpose of the State’s use of the cannabis evidence here:
       the State argued that Jackson’s actions could be attributed to marijuana use and thus were not



                                                   - 17 -
       accidental or involuntary: “Maybe smoking a lot of cannabis or something else could be the
       reason why you’re out of control ***.”
¶ 93        Contrary to the majority, I find an obvious connection between Jackson’s use of marijuana
       and his actions of resisting arrest and kicking a police officer. The use of illicit drugs (or any
       mind-altering substance) may result in irrational behavior of the type Jackson exhibited.
       Indeed, at oral argument, Jackson’s counsel conceded that, had Jackson smelled of alcohol
       rather than marijuana, the paramedics could have testified to that fact because that is part of
       assessing the patient’s condition. I see no difference between the two scenarios; in either case,
       the testimony leads to the inference that Jackson consumed a substance that could have caused
       his irrational behavior.
¶ 94        Turning to the paramedics’ testimony that Jackson was not suffering from a seizure, I
       disagree with the majority’s characterization of this as improper “lay opinion” testimony. The
       majority’s conclusion rests on its belief that the paramedics were lay witnesses rather than
       experts and thus could not offer opinions based on specialized knowledge. Supra ¶¶ 51-53
       (citing Ill. Rs. Evid. 701, 702 (eff. Jan. 1, 2011)). But our supreme court has held that lay
       witnesses who offer an opinion based on specialized knowledge may become expert witnesses
       once properly qualified. Novak, 163 Ill. 2d at 104.
¶ 95        In Novak, the State expressly denied at trial that its two rebuttal witnesses were experts and
       elicited opinions from them as lay witnesses. Id. at 99. While the supreme court initially held
       that the witnesses’ testimony was inadmissible as lay opinion testimony, it concluded that the
       State established the witnesses’ qualifications as experts, and as such, the admission of their
       testimony was not error. Id. at 102, 104. In reaching its conclusion, the supreme court
       explained:
                “An individual will be permitted to testify as an expert if that person’s experience and
                qualifications afford him or her knowledge that is not common to laypersons, and
                where such testimony will aid the fact finder in reaching its conclusion. [Citation.] The
                indicia of expertise is not an assigned level of academic qualifications. Rather, the test
                is whether the expert has knowledge and experience beyond the average citizen that
                would assist the jury in evaluating the evidence. [Citation.] The expert may gain his or
                her knowledge through practical experience rather than scientific study, training, or
                research. There is no precise requirement as to how the expert acquires skill or
                experience. [Citation.]” Id. at 104.
¶ 96        Here, just as in Novak, the State elicited testimony from both Piepenerink and Stapleton
       that revealed both had the education and practical experience to allow them to testify as
       experts. Piepenerink testified that he was certified as a paramedic after attending paramedic
       school for eight to nine months and completing field training, which was conducted in a
       hospital. He went on to testify that he received training on how people with seizures “behave or
       react” and that in his five years as a paramedic, he had attended to and assisted “a thousand”
       people having seizures. Stapleton likewise testified that he had been a licensed paramedic for
       eight years. His training consisted of 13 months of classroom work, multiple hours of ER time,
       and working with different units of the hospital. Stapleton had seen over 100 people having
       seizures and emerging from them. While neither Piepenerink nor Stapleton had training in the
       diagnosis of seizures, both had “knowledge and experience beyond the average citizen” (id.)
       regarding how seizure patients behave. Indeed, Stapleton testified that had he believed Jackson
       was suffering a seizure, he would not have touched him as paramedics are trained not to

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        attempt to control a patient’s movements during a seizure. In my view, this testimony was
        sufficient to render both paramedics experts in the recognition of symptoms of a seizure, and
        the trial court did not err in allowing them to express their opinions.
¶ 97         Again, by invoking plain error and urging de novo review on this issue, Jackson avoids the
        hurdle he would have otherwise faced to establish that the trial court abused its discretion in
        determining that these witnesses were qualified by training and experience to opine that
        Jackson was not suffering from a seizure when he kicked Wojcik and resisted Piech’s efforts to
        arrest him. There is no basis to distinguish Stelly’s opinion testimony that Jackson’s head
        movements looked like he was either going into or coming out of a seizure—which the
        majority deems admissible—from the testimony of trained paramedics that he did not appear
        to be suffering a seizure. The jury was entitled to consider all of the opinion testimony in
        determining whether Jackson, as he claimed, was suffering from a medical condition that
        rendered his bodily movements involuntary.
¶ 98         Jackson’s final allegations of trial error concern the prosecutor’s closing arguments and the
        trial court’s questioning of potential jurors. The majority agrees with Jackson that the
        prosecutor’s comments during closing regarding the paramedics’ testimony that Jackson was
        not suffering from a seizure as well as the reference to the cannabis smell were in error, again
        based on its finding that this evidence should not have been admitted. But because I believe
        that the testimony on both issues was properly admitted, I likewise do not find these comments
        erroneous.
¶ 99         And with regard to the trial court’s questioning of the jurors during voir dire, while I agree
        with the majority that the court erred in failing to strictly comply with Rule 431(b) (Ill. S. Ct. R.
        431(b) (eff. July 1, 2012)), I do not agree that this amounted to plain error, as I do not believe
        the evidence was closely balanced. The State presented evidence that supported the inference
        that Jackson’s actions in kicking Officer Wojcik and resisting arrest were knowing, whereas
        Jackson’s contention that he was having a seizure was supported only by the weak testimony of
        his girlfriend, who was not present at the time of the events. Moreover, Stelly did not know
        whether Jackson was going into or coming out of a seizure when she saw him on the stretcher.
        And if he was going into a seizure at that time, then his actions in the vestibule (which Stelly
        did not see) cannot be attributed to that condition. Under these circumstances, the evidence
        was not closely balanced so as to require reversal. See People v. White, 2011 IL 109689, ¶ 139
        (undertaking qualitative rather than “strictly quantitative” “commonsense assessment of the
        evidence” to determine that the evidence was not closely balanced).
¶ 100        Finally, I do not join in the majority’s criticism of the law enforcement officers and
        prosecutors involved in this case. Although the majority chides the officers for not
        de-escalating the situation, my colleagues offer no suggestions as to what the officers should
        have done. Certainly, the paramedics and police officers could not simply have left the scene as
        Jackson called 911 requesting an ambulance, presumably for a medical emergency. Further,
        because Jackson’s aggressive behavior prevented the paramedics from assessing him
        medically, it was necessary to subdue him and so police were contacted. And when two
        uniformed police officers were unable to handcuff Jackson because he was fighting them, it
        was reasonable for Piech to use his Taser (the first time he had done so in his more than 19-year
        career) to attempt to get Jackson under control, ultimately to no avail. Based on my reading of
        the record, Piech used his Taser twice, once without darts and once with. Neither had any effect
        on Jackson, so the majority’s characterization of Jackson as being “zapped with 50,000 volts”

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        (supra ¶ 3) is irrelevant. And the jury in this case was instructed, without objection, that the
        arresting officers were not required to retreat or desist in an effort to make a lawful arrest
        because of Jackson’s efforts to resist and that they were justified in the use of any force
        reasonably necessary to effect his arrest and defend themselves from bodily harm. See Illinois
        Pattern Jury Instructions, Criminal, No. 24-25.12 (4th ed. 2000). They do not deserve criticism
        for doing what the law entitles them to do.
¶ 101       Although the majority likens this case to those involving citizens suffering from mental
        illness, there is, as noted, absolutely no evidence in the record that Jackson was mentally ill,
        and he did not assert any such defense at trial. Thus, I cannot find fault with the officers for
        their treatment of an aggressive, irrational individual, nor do I join in my colleagues’ criticism
        of the prosecutors involved in this case for pursuing charges against a person who attacked
        both the paramedics he called to help him and the officers who responded to the scene.
¶ 102       I would affirm.




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