2013 I LApp (3d) 120178 Opinion filed September 30, 2013

I N THE APPEL L ATE COURT OF I L L I NOI S THI RD DI STRI CT A.D., 2013 THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee , v. DARNEL LM. FON DER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of the 21st J udicial Circuit, Kankakee County , I llinois , Appea l No. 3-12-0178 Circuit No. 10-CF- 235 Honora ble Kathy Br adshaw -Elliott, J udg e, Presiding
. J USTI CE HOL DRI DGE de livered the judgme nt of the cour t with opinion. Presiding Justice Wright and Justi ce O ' Br ien conc urre d in the judgme nt and opinion.
OP INION ¶ 1 After

a jury trial, the def

endant, Da

rnell M. Fonde r, wa s convicted of resisting a pea ce office r (720 I L CS 5/ 31-1(a -7) ( West 2010)) and c riminal trespass to re al prope rty (720 I L CS 5/21-3(a) (3) ( West 2010)). The tria l court sentenc ed the de fenda nt to three year s of imprisonment. On appea l, the defe ndant ar gues that the trial c ourt err ed whe n it did not i nstruct the jury that it mustfind that the def endant' s conduct wa s the proxim ate c ause of an injury to a peac e off icer to sustain a felony

char g e of r esisting a

rre st. W e re verse and re mand the ca use. ¶ 2 FACTS¶ 3 The de fenda nt was cha

rg ed by indictment with ag g ravated batter y (720 I L CS 5/ 12- 4(b)( 18) (West 2010)), r esisting a peac e off icer (720 I L CS 5/ 31-1(a -7) ( West 2010)), and criminal trespa ss to real prope rty (720 I L CS 5/ 21-3(a )(3) (West 2010)). On De cembe r 6, 2011, the ca se proc eede d to a jury trial. ¶ 4 At trial, Off

icer Michae l Shreffle r testified that at approxim ately 2:30 p.m. on May

7, 2010, he re sponded to a c all at the re sidence of Cry stal Davis. At the sce ne, Shref fler thr eate ned to arre st the defe ndant if he r eturne d to Davis' residenc e. ¶ 5 At approximately 8:30 p.m. on the same date , Shreff ler re sponded to another

call at the Davis re sidence . Davis told Shreffle r that the de fenda nt had re turned. Shref

fler obse rved the defe ndant walk towa

rd him from behind the building . As Shreff ler a pproac hed the de fenda

nt, Offic er Joseph Martinez arr ived at the sc ene. Shre ffler noticed that Mar

tinez was uninjured. There afte r, Shref

fler a pproac hed the de fenda

nt. He announc ed that the de fenda nt was under
arr est, instructed the de fenda nt to place his hands be hind his back, and attempted to gr ab the defe ndant' s arm. The defe ndant said " [I ] ain't g etting a rre sted for this bullshit" and pulled his
arm a way . The de fenda

nt then fought with Shreffler and Mar tinez as they

attempted to re strain him. The offic ers g ained c ontrol of the def endant only

afte r Mar tinez dry -stunned him twice with his taser. ¶ 6 Martinez testified that when he arrived at the sc ene, he saw Shref fler spe akingwith Davis. Shref

fler the n went to the side of the building and spoke with the defe ndant. Martinez first approa ched D avis and then w ent to Shreff ler' s location, wher e he sa w Shreff ler a dvise the defe ndant that he wa s under a rre st. The def

endant tug g ed his right arm aw ay as Shref fler attempted to place him in handcuffs. Shre ffler instructed the de fenda

nt not to resist. Martinez
2attempted to g rab the defe ndant' s left ar m, but the defe ndant swunghis arm up, scra tching Martinez' s nose and f

orehe ad. The defe ndant continued to fig ht with the office rs until Martinez dry -stunned the de fenda

nt twice. Shref

fler tr ansported the defe ndant from the sc ene, a nd Martinez completed the pa perw ork for

the offe nse and took Da

vis' state ment. ¶ 7 Duringthe strug g le, Martinez re ceive d small abrasions to his nose and f orehe ad. Martinez identified a photog raph tha t was take n afte r the incide nt that depicted the injurie s, and the photog raph w as admitted into evidenc e. Howe ver, the photogr aph did not display the full extent of the injuries beca use Mar tinez had cleane d the " blood dripping on [his] fac e" in Davis' bathroom. Mar

tinez was uninjured bef

ore the alterc ation. ¶ 8 Davis testified that she ha d known the def endant f or appr ox imately

five year s. On the eveningof May

7, 2010, she spoke with Mar tinez for approximately

two minutes and then he went ar ound the side of the buildingto look for the def endant. Da

vis followed Martinez ar ound the side of the buildingand sawMartinez and Shref fler a sk the defe ndant for ide ntification. When the defe ndant said that he did not have identification, the off icer s instructed the de fenda nt to come with them and grabbe d his arm. The de fenda nt responded tha

t it hurt, and the offic ers threw the defe ndant on the g round, jumped on him, and spra y ed him with mace. T he def endant told the office rs to stop and procla imed that he " didn't do nothing ." D avis also aske d the offic ers to stop. ¶ 9 After

the def endant wa s place d in the police ca r, Mar tinez went to Davis' apar

tment and asked he r to sign some paper work. At that time, Davis did not not ice a ny injuries to Martinez's fac e, and Ma

rtinez did not use her bathroom. ¶ 10 On cr oss-examination, Davis stated that the def endant wa s the fathe r of he r daughter. On
3the date of the incident, she a

nd the def

endant we re se parated, and she called the police af ter the defe ndant ca

me to her r esidenc e in the af ternoon. The police re sponded in the eve ning of May 7, 2010, when they

saw the de fenda

nt standing in fr ont of the apa rtment building whe re D avis lived. Davis denie d callingthe police a second time. At trial, Da vis stated that she and the defe ndant had r econc iled their re lationship. ¶ 11 At the jury

instruction confe renc e, the State tende red two jury instructions on resisting
arr est. Def

ense c ounsel did not object to the instructions or offe r his own instructions, and the
case proce eded to c losing a rguments. ¶ 12 Prior to deliberations, the trial court instructed the jury on the re sisting ar

rest cha rg e using I llinois Pattern Jury

Instructions, Criminal, Nos. 22.13 and 22.14 (4th ed. 2000) ( here inafter , I PI Criminal 4th Nos. 22.13 and 22.14). ¶ 13 Duringdeliberations, the jury reque sted to see the photograph of Martinez' s injuries. Howeve r, bef

ore the photogr aph wa s sent to the jury , it reac hed a ve rdict. The jur y found the defe ndant not g uilty

of ag g ravated batter

y and guilty

of re sisting a pe ace office r and c riminal trespass to re al prope rty
. ¶ 14 On J anuar

y 3, 2012, the def

endant f iled a motion for ac quittal. The defe ndant contende d that he should not have be en convic ted of fe lony -leve l resisting a rre st. The def

endant a rgued that the jury instructions for re sisting ar rest did not contain the pr oposition t hat the def endant wa s the proxi mate ca

use of a n injury to a pea ce of

fice r. As a r esult, the jury instruction only

supported a conviction for a

misdemeanor c onviction for re sisting ar rest. The trial court f

ound that it was fore seea ble that an of

fice r mig ht be injured whe n the def endant r esisted ar

rest and de nied the motion. Therea fter, the trial court se ntence d the def endant to thre e year s of imprisonment. The
4defe ndant appe als.

¶ 15 ANALYSI S ¶ 16 On appe al, the def endant a rgues that the trial c ourt err ed whe n it failed to instruct the jury
on a nec essar

y element of

the cha rg e for felony resistingarr est. Acc ordingto the defe ndant, the court should have instructed the jury , in addition to the three propositions listed in I PICriminal 4th No. 22.14, that the State must prove beyond a re asonable doubt that the defe ndant' s violation was the pr ox imate ca

use of a n injury to Martinez. See 720 I L CS 5/ 31-1(a -7) ( West 2010). The defe ndant admits that he did not object to the tende red jury instructions, but argues that the waiver rule should not apply

beca use the c ourt' s failure to instruct the jury on an ele ment of the offe nse is a g rave and funda mental er ror. See I ll. S. C t. R. 451(c) (e ff. July 1, 2006). The State
conce des that the trial c ourt err ed, but ar g ues that re versa l is not warra nted bec ause the evidenc e was not closely

balanc ed and it wa s obvious from the evidenc e that the de fenda nt prox imately
cause d injury

to Martinez. ¶ 17 Gene rally , "[n]o party may raise on a

ppeal the f

ailure to g ive an instruction unless the party shall have te ndere d it." I ll. S. C t. R. 366(b)(2)( i) (ef f. F eb. 1, 1994). H oweve r, I llinois Supreme Court Rule 451(c ) (e ff. July 1, 2006) provides that substantial defec ts in jury instructions are not wa ived by a def endant' s failure to make timely objections if the intere sts of justice requir e. " The purpose of Rule 451(c ) is to permit corr ection of grave err ors and e rror s in
case s so fac tually

close that funda

mental fa irness re quires that the jury be prope rly

instructed." People v . Sargent , 239 I ll. 2d 166, 189 (2010). Rule 451(c) is coextensive with the plain error rule. See I ll. S. C t. R. 615(a); People v . McNeal , 405 I ll. App. 3d 647 (2010). B efor e conduc ting the plain er

ror a naly sis, we must determine whe ther ther e wa s err or. See People v . W ilson , 404
5I ll. App. 3d 244 (2010).

¶ 18 A. Err or ¶ 19 "T he purpose of jury instructions is to provide the jury with the corr ect leg al principles applicable to the evidenc e, so that the jury may rea ch a c orre ct conc lusion accor ding to the la w and the e vidence ." People v . Bannister , 232 I ll. 2d 52, 81 (2008). Gene rally , the dec ision to give
a ce rtain instruction rests in the sound discre tion of the trial cour t. People v . Lovejoy , 235 I ll. 2d 97 (2009). How ever , "when the issue is whe ther the a pplicable law

was c orre ctly

conveyed by the instructions to the jury , the appr opriate standa rd of r eview on a

ppeal is de novo ." People v

. Max , 2012 I LApp (3d) 110385, ¶ 52. ¶ 20 In the instant case , the def endant wa s char g ed with fe lony resisting arr est under se ction 31-1(a -7) of

the Criminal Code of 1961 (Code) . 720 I L CS 5/ 31-1(a -7) ( West 2010). To secur e a conviction under

section 31-1( a-7) of the Code, the State w as re quired to prove beyond a
rea sonable doubt that the de fenda nt knowingly

resisted or obstruc ted a pe ace office r in the perf ormanc e of a

n authorized ac t within his capa city and the de fenda

nt's " violation was the proxi mate ca

use of a n injury to a pea ce of

fice r." 720 I L CS 5/ 31-1(a ), (a -7) ( West 2010). ¶ 21 In a jury

trial, the cour

t must i nstruct the jurors, usingthe I PICriminal I nstructions, when applicable . I ll. S. C t. R. 451(a) (e ff. July 1, 2006). Two I PICriminal inst ructions ar e per tinent to the offe nse of r esisting a

peac e off icer . I PICriminal 4th No. 22.13 states: "Aperson c ommits the offe nse of r esisting or obstructinga [ (peac e off icer) *** ] when he knowing ly

resists or obstructs the pe rfor mance of any

authorized ac t within the officia l capa city

of one known to him to be a [ (peace office r) *** ]." I PICriminal 4th No. 22.13.
6Analog ously , I PICriminal 4th No. 22.14 lis ts the elements for a misdemea

nor cha rg e of r esisting a pea ce of

fice r as f ollows: "T o sustain the char g e of r esisting or obstructinga [ (peac e off icer) *** ], the State must prove the followingpropositions: First Proposit ion: That _____ wa s a [ (peac e off icer) *** ]; and Second Proposition: That the de fenda nt knew _____ wa s a [ (peac e off icer) *** ]; and Third Proposi tion: That the de fenda nt knowingly

resisted or obstruc ted the perf ormanc e by

____ of an a

uthorized act within his official ca pacity
. I f you find from your consider ation of all the e vidence that eac h one of the se propositions has been pr oved beyond a re asonable doubt, y ou should find the defe ndant g uilty
. I f you find from your consider ation of all the e vidence that any one of the se propositions has not been prove d beyond a re asonable doubt, y ou should find the defe ndant not g uilty ." I PICriminal 4th No. 22.14. The c ommitt ee note s to these instructions are silent on the chang es nec essar y for a felony char g e. 1 ¶ 22 In the pre sent ca se, the trial c ourt instructed the jury on the re sisting ar

rest cha rg e using
We note that I llinois Pattern Jury Instructions, Criminal, No. 4.24 (4th ed. Supp. 2011) 1 (her einaf ter, I PICriminal 4th No. 4.24 (Supp. 2011)) define s "pr ox imate ca use." The c ommitt ee note to I PICriminal 4th No. 4.24 cites to the "pr ox imate ca use" languag e in sec tion 31-1(a- 7) of the Code, but does not provide a cross-r efe renc e to I PICriminal 4th Nos. 22.13 or 22.14.

7the unmodified ver sions of I PICriminal 4th Nos. 22.13 and 22.14. Consequently , the trial cour t failed to instruct the jury

on an esse ntial element of the offe nse: that the def endant' s violation was the proxim ate c ause of

injury to a pea ce of

fice r. The c ourt' s omissi on of the proximate cause element wa s err or. ¶ 23 B. Plain Err or ¶ 24 Havingfound er

ror, we must nex t determine whether it is reversible e rror , i.e. , whether either pr ongof the plain e rror test has bee n satisfied such that we may overlook the de fenda

nt's proce dural de fault. We may overlook the de fenda

nt's pr ocedur al def

ault if: (1) the e vidence is so closely balanc ed that the e rror

alone thre atene d to tip the scales of justice a g ainst the defe ndant, reg ardle ss of the ser iousness of the er ror; or ( 2) the e rror

is so serious that it affe cted the f airne ss of the de fenda

nt's tria l and cha lleng ed the integrity of the judicial proc ess, re g ardle ss of the closene ss of the evide nce. People v . Piatkowski , 225 I ll. 2d 551 (2007). " The de fenda nt bear s the burde n of per suasion under both prong s of the plain-e rror analy sis." People v . W

ilmington , 2013 I L112938, ¶ 43. ¶ 25 In this case, the de fenda nt has satisfied his burden of provingthat the trial cour t's e rror
was re versible plain e rror under the second pr ongof the a naly sis. The second pr ongof the plain
err or doctrine permits revie w and r ever sal of other wise unpre serve d err ors that er ode the integrity of the judicial proc ess and unde rmine the fa irness of a defe ndant' s trial. Sargent , 239 I ll. 2d 166. Fundamental fa irness re quires trial c ourts to see " to it that certain ba sic instructions, essential to a fair de termination of the c ase by the jury , are g iven." People v . Ogunsola , 87 I ll. 2d 216, 222 (1981). The failure to inform the jury of the e lements of the c rime cha rg ed is so g rave and fundame ntal that the waive r rule should not apply . See People v . Hari , 218 I ll. 2d 275 (2006);
8Ogunsola , 87 I ll. 2d 216; People v . Hale , 2012 I LApp (4th) 100949.

¶ 26 A conviction under section 31-1( a-7) of the Code r equire d the jury to find, inter alia , that the def endant' s violation was the proxim ate c ause of an injury to Martinez. 720 I L CS 5/ 31-1(a ), (a- 7) (West 2010). The trial court f ailed to instruct the jury

on that element. The element ha d to be prove d beyond a re asonable doubt beca use it elevated the sente ncingrang e. People v

. Cervantes , 408 I ll. App. 3d 906 (2011). The defe ndant is entitled to a jury deter mination of
ever y element of

the cr ime with which he is cha rg ed beyond a re asonable doubt. See Apprendi v. New Jersey , 530 U.S. 466 (2000). The trial court' s omissi on remove d from the jury' s consideration an element e ssential to the deter mination of the defe ndant' s g uilt or innocence . See Ogunsola , 87 I ll. 2d 216. Further more, the de fenda

nt's a cquittal of the a g g ravated batter y char g e, which re quired proof

of bodily harm, sug g ests that the jury did not find that Martinez was injured. See 720 I L CS 5/ 12-4(b) (18) ( West 2010). As a re sult, we rema nd the ca use for a new trial befor e a pr operly

instructed jury
. ¶ 27 CONCLUSI ON ¶ 28 For

the fore g oing r easons, the judg ment of the c ircuit court of Kanka kee County

is
reve rsed, a

nd the ca use is rema

nded for further proce eding s. ¶ 29 Reverse d and re manded.

9