No. 3--08--0233

Filed August 31, 2010 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2010

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois Plaintiff-Appellee, ) ) v. ) No. 07--CF--183 ) CHARETTA T. WILSON, ) ) Honorable Stuart P. Borden, Defendant-Appellant. ) Judge, Presiding.

JUSTICE SCHMIDT delivered the opinion of the court:
Defendant, Charetta T. Wilson, appeals her conviction for resisting a peace officer resulting in an injury to the officer. Specifically, she challenges: (1) the wording of a modified Illinois pattern jury instruction; and (2) her trial counsel's effectiveness. FACTS Defendant proceeded to a jury trial on two charges: resisting a peace officer resulting in an injury to the officer (720 ILCS 5/31--1(a--7) (West 2006)); and aggravated assault (7202

ILCS 5/12--2(a)(6) (West 2006)). Bradley Scott, a Peoria police officer, testified that on January 21, 2007, he was dispatched to a part of Peoria known as Niagra Alley. He was dressed in a standard police-issue uniform, and he observed a large crowd located in the alley. To make his way through the alley, he launched pepper balls at the legs and feet of individuals in the crowd. He then began assisting another officer, Sergeant Venzon, with crowd control when a glass bottle flew past the left side of his body. Venzon identified defendant as the person who threw the bottle. Scott consequently approached defendant and grabbed her arm. Venzon and Scott attempted to pull defendant down the alley where other officers were located, but she refused to be handcuffed and did not comply with commands to put her hands behind her back. Scott pinned defendant against a wall to facilitate the handcuffing while another officer, Eric Betts, provided assistance. Defendant pushed against the wall and temporarily broke Scott's grasp of her arm. Scott then grabbed defendant's upper arm and forced her to the ground, whereupon she tried to pull her arms underneath her body to keep from being handcuffed. While Scott tried to gain control of defendant's left arm, defendant "rolled along with the pile" and pinned3

Scott's arm against the ground. Ultimately, the officers were able to handcuff defendant and take her to a police car. Scott subsequently received treatment for a sprained wrist at Methodist Hospital. Officer Betts testified that when he arrived at the scene, he witnessed Scott attempting to arrest defendant, and he helped get defendant to the ground. Once on the ground, defendant was shifting from side to side. Betts pulled one of defendant's arms from beneath her body and secured a handcuff to the arm. Though he did not remember rolling with defendant or losing his balance, he did notice Scott grimace. He then saw someone throw another bottle that landed near him. Betts left to pursue the person who threw the bottle. Lashanda Marizetts testified that she and defendant went to Club 112, which was located in the alley, on January 21, 2007. Defendant had a cranberry juice and vodka but did not consume any beer or have any reason to possess a beer bottle. As the club was closing, a fight broke out. Marizetts and defendant began walking up the alley outside the club when a police officer grabbed defendant. Marizetts said the officer threw defendant to the ground and placed his knee on her back. The officer then began striking defendant.4

Kecia Wilson, defendant's sister, testified that she was with defendant and Marizetts at the club on January 21, 2007. Several fights broke out when the club closed. Wilson observed police officers grab defendant, and she testified that the officers would not tell defendant why they were arresting her. They took defendant to the ground and began punching her. Defendant was moving on the ground because the officers were on her back and pulling her hair. Defendant testified that she and some friends went to the club to celebrate her birthday. When the club closed, she and her friends tried to leave, but due to several fights outside they waited until most of the club's patrons had left. As they walked from the club, a police officer grabbed defendant's arm. Defendant pulled her arm back, and the officer requested that she get against the wall with her hands behind her back. When defendant asked the officer what she had done, the officer threw her against the wall. Another officer then helped throw her to the ground. Defendant said her hands were at her side and not behind her back. At the jury instruction conference, the State tendered a modified version of the Illinois pattern jury instruction for resisting a peace officer. The modified version added a fourth5

proposition to which defendant did not object. The trial court accepted the instruction as modified. The instruction read:

"To sustain a charge of Resisting or Obstructing a Peace Officer, the State must prove the following propositions: First Proposition: That Brad Scott was a peace officer; and Second Proposition: That the defendant knew Brad Scott was a peace officer; and Third Proposition: That the defendant knowingly resisted or obstructed the performance of Brad Scott of an authorized act within his official capacity; and Fourth Proposition: That the defendant's act of resisting was a proximate cause of an injury to Brad Scott." (Emphasis added.) At some point during its deliberations, the jury sent a note to the court inquiring:

"May the propositions on resisting a peace officer be broken down into two separate counts. Can the injury be separated from the resisting?"6

Defense counsel noted: "That's the lesser included offense." The court replied: "Obviously, no, you have chosen not to go there. My answer to this question would be no, you must deliberate based upon the charges before you." The State and defense counsel both expressed satisfaction with that response. Ultimately, the jury acquitted defendant on the charge of aggravated assault but found her guilty of resisting a peace officer resulting in an injury to the officer. The trial court sentenced defendant to 18 months of conditional discharge. She appeals. ANALYSIS Defendant claims she is entitled to a new trial since she "was prejudiced when an inaccurate non-pattern jury instruction was provided to the jury." Defendant has forfeited this claim. It is well settled that a defendant forfeits review of any putative jury instruction error if she does not object to the instruction or offer any alternative instruction at trial and does not raise the particular instruction issue in her posttrial motion. People v. Herron , 215 Ill. 2d 167, 830 N.E.2d 467 (2005). Defendant concedes she did not object to the instruction of which she now complains, nor did she raise any issues questioning its propriety in her posttrial motion. Nevertheless,7

defendant asserts that the claimed error "constitutes plain error and should be reviewed as such." In the alternative, defendant asserts that "if the error of failing to properly instruct the jury is not plain error, it should be reviewed under the standard for ineffective assistance of counsel." There can be no plain error if there was no error at all; counsel cannot be ineffective for failing to challenge a correct instruction. See People v. Johnson , 218 Ill. 2d 125, 842 N.E.2d 714 (2005). Before we can address defendant's claims of plain error and ineffective assistance, we must determine whether there was error in the first place. See Johnson , 218 Ill. 2d at 139. Defendant initially contends that the modified instruction incorrectly stated the law. The statutory language for the charged offense reads:

"(a) A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer or correctional institution employee of any authorized act within his official capacity commits a Class A misdemeanor.

*** (a--7) A person convicted for a8 violation of this Section whose violation was the proximate cause of an injury to a peace officer is guilty of a Class 4 felony." (Emphasis added.) 720 ILCS 5/31--1 (West 2006). Defendant argues that the definite article ("the") in the statute and the indefinite article ("a") in the jury instruction have different meanings--"the" being exclusive and "a" being inclusive. According to this argument, when the legislature used the phrase "the proximate cause" in the statute (resisting a peace officer), it was referring only to the single most immediate or direct cause. Therefore, defendant contends, the use of "a proximate cause" in the modified instruction permitted a finding of guilt based on a standard lower than the standard required by statute. Our primary objective in construing any statute is to determine and effectuate the legislature's intent. Yang v. City of Chicago , 195 Ill. 2d 96, 745 N.E.2d 541 (2001). A review of our legislature's use of the phrase "the proximate cause" leads to the inescapable conclusion that it did not intend its use of the term to equate to the narrow definition argued by defendant. The legislature has used the term "proximate cause" in 199

statutes. 65 ILCS 5/11---152--1 (West 2008); 215 ILCS 5/4 (West 2008); 605 ILCS 125/20 (West 2008); 625 ILCS 5/6--103 (West 2008); 625 ILCS 5/6--208 (West 2008); 625 ILCS 5/11--501 (West 2008); 625 ILCS 5/11--506 (West 2008); 625 ILCS 5/11--610 (West 2008); 625 ILCS 40/5--7 (West 2008); 625 ILCS 45/5--2 (West 2008); 625 ILCS 45/5--16 (West 2008); 720 ILCS 5/12--21.6 (West 2008); 720 ILCS 5/31--1 (West 2008); 735 ILCS 5/2--623 (West 2008); 735 ILCS 5/2--1107.1 (West 2008); 735 ILCS 5/2--1116 (West 2008); 740 ILCS 180/2 (West 2008); 745 ILCS 10/3--109 (West 2008); 745 ILCS 43/15 (West 2008). The phrase "a proximate cause" appears in 10 of these statutes and "the proximate cause" appears in 9. Nowhere within the Illinois Compiled Statutes does the legislat ure define "prox imate cause, " "a proximat e cause," or "the pro ximate cau se." However, the legislature has used the phr ase "more than 50% of the proximate c ause" i n at least two instances. (Emphasis added.) I n section 2--1107.1 of the Code of Civil Procedure, the legislature stated that, "[I ]f the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause," then the plaintiff is barred from re covery. ( Emphasis added.) 735 I LCS 5/2 --1107.1 (West 2008 ). Similar ly, in section

2(c)(2 ) and (2)

of the Wrongful D eath Act, the l egisla

ture ag ain state d that if a

benefic iary

on whose b ehalf a

n action i s broug

ht "is more than 50% of the proximate c ause of t he wrong ful deat

h of the de cedent, " then r ecover y is barred. (Emphasis added.) 740 I LCS 180/2(c)(2) (West 2008). QUERY: if the legislature1 Unlike Justices Holdridge and McDade, I do not find that

the use of the article "the" in front of proximate cause creates an ambiguity. This is the reason I did not discuss legislative 10 intended "the proximate cause" to mean the " one most immediate" cause, then how can there ever be less than 100% of "the proximate cause" ? If use of the phrase "the proximate cause " means that there is but one singular cause of a n injury, why

would the legislature ever use the phrase "more than 50% of the proximate cause," when to do so would render the phrase selfco ntr adic tor y non se nse ? A definition of proximate cause is, however, contained within I llinois Pattern Jury Instr uctions, Ci

vil, No. 15 .01 (2009 ) (here inafter IPI Civil (2009 )), whic

h states: "When I use the expression 'pr oximate cause,' I mean a cause which, in the natural and ordinary

course of events, produced the plaintiff 's injur y. I t need not be the onl

y
cause, n or the la st or nea

rest ca use. I t is sufficie nt if it com

bines with

another cause resulting in injury." IPI

Civil (2009) No. 15.01. In light of this definition of "proximate cause," changing the article immediately preceding "proximate cause" from "a" to "the" does not change its definition. I t matters not whether one speaks of "the" proximate cause or " a" proximate cause--the meaning is the sa me. 1 Thehistory. However, I plead guilty to going beyond what is

necessary in what is perhaps a misguided effort to address concern of those who might disagree with my conclusion that changing the article immediately preceding "proximate cause" does not create an ambiguity. 11 definition of the term controls any article preceding it. This reading is consistent with the legislature's use of the phrase "more than 50% of the proximate cause." 735 I LCS 5/2--1107.1 (West 2008); 740 IL CS 180/2(c)(1), (c)(2) (West 2008). Our inter pretation of the st

atute an d term fin ds support

in our supr

eme cour t's opini on in People v. Hudson , 222 Ill. 2d 392, 856 N.E.2d 1078 (2006).

"In ge neral, Illinois law provides that a def endant may be

charged with murder pursuant to the 'proximate cause' theory of felony murde

r. People v . Lowery , 178 Ill. 2d 462 (1997). The term ' proximate cause' describes two distinct requirements: cause in fact and leg al cause. First Springfield Bank & Trust v. Galman , 188 I ll. 2d 252, 2 57-5 8 (19 99). We have stated, 'We believe that the analogies between civil and criminal cases in which individuals are injured or killed are so close that the principle of proximate cause applies to both classes of cases. Causal relat ion i s the u niver sal fa ctor co mmon to all legal l iabil ity.' Lowery , 178 Ill. 2d at 466. L egal cause 'is essentially a question of foreseeability '; the12 relevant inquiry is 'whether the injury is of a type that a r

easonable person would see as a likel y result o f his o r her co nduct .' Galman , 188 Ill. 2d at 258. For eseeab ility

is added t

o the cau se-in-f

act req uiremen t becaus e 'even when cause in fac

t is established, it must be determined that any variation between the result intended *** and the result actua lly achieved is not so extraordinary that it would be unfair to hold the def endant responsible for the actual result.' 1 W. L aFave, Substantive Criminal Law §6.4, at 464 (2d ed. 2003). Although foreseeability is a necessary
componen

t of a pro ximate cau se analy sis, it nee d not be spe cifical ly mentioned in a jury instruction to communicate the ide a of 'proximate' to a jury. Thus, the I

PI civil jury

instruction communicates the definition of 'proximate cause,' as '[any ] cause which, in natural or probable sequence, produced the injury

complained of. [It need not be the only cause, nor the last or ne arest c ause. I

t is suffic ient if it c oncurs with some other caus e actin g at the same t ime, w hich i n comb inati on wit h it, causes the in jury.]' Illinois Pat tern Jury Instruction s, Civil , No. 15.01 (2005)." Hudson , 222 Ill. 2d at 401-02. Defe ndan t invites us

to eq uate "the proximate c ause " wit

h "so le pr oximat e ca use. " We must respe ctfully

decline the invita

tion. Our j urisprud

ence re cognize s the principle of "sole proximate c ause" a

nd instructs a jury

that "if you decide t hat the so le proximat

e cause of injury tothe plain

tiff was the condu

ct of some

person ot her than the defe ndant, tha n yo ur verdi ct should be for th e defen

dant." I PI Civi l (2008) N o. 12.04. Adding the adjectiv e "sole " to the phrase is quite different from simply c hanging the preceding article from " a" to "the." The modified instruction at issue contained an accurate state ment of the law. Accordingly , there was no error, let alone plain err or. As defendant has not met her burden of establishing plain error, we must honor her proce dural default. People v. Hillier , 237 Ill. 2d 539, 545-48 (2010). With respect to the ineffective assistance of counsel issue, fa ilure to object to proper conduct cannot render counsel constitutionally ineffective. Johnson , 218 Ill. 2d at 139. CONCLUSIO

N For the foregoing r

easons, the judgment of the circuit court of Peoria County is affirmed. Affirmed. PRES IDING JUST ICE HOLDRIDGE , spec iall y concurri ng: Our primary obje ctive in construing a statute is to determine and effec tuate the legislature's intent. Yang v. City of C hicago , 195 Ill. 2d 96 (2001). This effort beg ins with an examination of the statutory langua ge. Texaco-Cities Service Pipeline Co. v. McGaw , 182 Ill. 2d 262 (1998). If the statutory language is ambiguous, we may examine the legislative history. Country Mutual I

nsurance Co. v. Teachers I nsurance Co. , 195 I ll. 2d 322 ( 2001). A s tatute is ambiguous if it is capable of more than one rea sonable interpretation. In re B.C. , 176 Ill. 2d 536 (1997). The par

ties' a rgumen ts, and the

observa tions made

in the ord

er of this court, de monstrate14

that the d isputed la nguag e from the

resisting -a-pea

ce-off icer sta tute is amb iguous. While it is possible that the legislature intended the definite article (" the") to signal an exclusive sort of proximate cause, it is also possible that the legislature intended no such exclusion--allowing more than the single most immediate or direct cause. Consequently , it is proper to look to the legislative history f

or guidance. When the disputed language was being considered on the Senate floor, Senator Petka explained that "it raises the offense of resisting ar rest to a Class 4 felony in circ umstances where
a peace office r suffe rs harm a s a proximat

e result o f the ar

rest." 92d I ll. Gen. A ssem., Senate Proceedings, April 3, 2002, at 115 (statement of Senator Petka). L ater, the following colloquy occurred: "SENATOR CULL

ERTON: Senator, for the purposes, I g uess, of legislative intent, there's an amendment that we put on the bill that says a person convicted for a violation of this Section whose violation was the proximate cause of an injury to a peace officer is guilty

of a Class 4 felony. Could y ou describe how the -- what the burden o f proof w

ould be, w

ho it would b e on and w

hat is the b

urden of proof in order for the State to -- to prove that Section? PRESIDING

OFFICER: (SENATOR WATSON) Senator Petka. SENATOR PETKA:15 First of all, than k yo u for --asking t

hat quest ion. The b

urden of proof wil l be on the State. It'll be a bur den of proof bey

ond all reasonable doubt. The -- I envision a

jury instructi on which would hold that the ind ividual to b e found g

uilty of the offense must be found guilty beyond all rea sonable doubt and must prove that the injury was proximately related to the action. PRESIDING

OFFICER: (SENATOR WATSON) Further discussion. Senator Molaro? SENATOR MOLARO: Thank you, Mr. President. Would the sponsor y ield for a question? PRESIDING

OFFICER: (SENATOR WATSON) Sponsor indicates he'll y

ield, Senator Molaro. SENATOR MOLARO: For the c rime of r esisting arrest, where is

that clas sified? I s that a Cla ss A misdemea

nor or is that a Class

1 felony , or what is resistin

g arre st? PRESIDING

OFFICER: (SENATOR WATSON) Senator Petka. SENATOR PETKA: Resisting arrest w ill remain a Class A mi sdemean

or, Sena tor. I n those circumst ances w here a p eace of

ficer in effec tuating

an arre st is injure d as a re sult of that arrest, such as situations where there' s a struggle for placing the handcuffs16

on or it's just a struggle in apprehe nding the individual who is running, the peace officer suffers gre at bodily harm, under those c ircumstances, the -- the charg e can be upgraded to a felony ." 92d Ill. Gen. Assem., Senate Proc eedings, April 4, 2002, at 87-89 (statements of Senators Cullerton, Petka & Molaro).. This language indicates that the legislature did not attach exclusive significance to the definite article in the phrase "the proximate cause." Rather, the legislature simply meant "proximate cause." As Senator Petka (the sponsor) e xplained, the State must prove that the officer's injury

was "proximately re lated" to the defendant's resistanc e or occurred "as a r esult" of making t he arre st. Senator Petka explicitly used the phrase " a proximate result," and the bi ll passed with his explanation. In light of this meaning, the modifie d instruction at issue contained an accurate statement of the law. A ccordi ngly, I would find n o rever sibl e error and I agree w ith t he resu lt of t his co urt's disposition. JUS TICE McD ADE, s pecial ly concurr ing: Whil e I concur in th e majo rity’s de cisio n affi rming d efenda nt’s c onvi ction for res isti ng a peace o fficer

resulting in an injur

y to the offic er, I

write se parate ly to

voice my concer ns with this result. On appea l, defen dant cal ls our atte

ntion to the

fact tha t the modif

ied vers ion of I

PI Criminal 4th No. 22.14, which was tendered to the jury , only required the jury to find that defendant’s act of resisting was “ a proximate cause” and not “the proximate cause” of Off icer17

Scott’s injury. As the majority has correctly

pointed out, the statutory lang uage for the charg ed offense reads: “the proximate cause.” See 720 I LCS 5/31-1 (West 2006). Recently, the supre

me court in People v

. Brown , 229 Ill. 2d 374, 382-83 892 N.E.2d 1034, 1041 (2008) stated:

“When inte

rpreting a statute , our primary

objectiv e is to asc ertain and give e ffec

t to th e inte

nt of t he le gisl atur

e. [Citation.] Legislative intent is determined by considering the languag e of the statute, g iven its pla

in and ord

inary meaning , as well a s the purp ose and necessity f

or the law, the evils sought to be remedied, and goals to be achieved. [Citation.] Each word, clause and sentenc e of the statute must be given reasonable meaning and not rendered superfl uous, and we presume the General Assembly did not intend absu rdity , inc onvenien ce, or inju stice . [Cita tion. ]” Section 31-1 expressly require s that the State establish that defendant’s act of resisting was “the proximate cause” of Officer Scott’s injury . See 720 IL CS 5/31-1(a-7) (West 2006). Thus, the gravamen of this appeal revolve s around the question of whether the modified version of IP I Crim

inal 4th No . 22.14, w

hich subst

ituted the indefinit e articl e “a” f

or the de finite ar

ticle “the,” constitutes plain error. While Justice Schmidt and Justice Holdridge ultimately do not apply any plain error analy sis due to the fact that they e ach find the absence of error all together, both appa rently find that s ection 31 -1 is ambig uous. Spec ifically

, Justice Schmidt appears to2 Justice Sch midt has, however , droppe d a footno te asser ting tha t he finds the statut e unambig uous. I t is lega lly i ncorre ct to cite

and discu ss outside

sources where the statute

in question is itself unambiguous. People v. Nunez , 236 Ill. 2d 488, 495, 925 N.E.2d 1083, 1087 (2010) ( "When the

statutory langua ge is cl ear and

unambig uous, it is u

nnecess ary

to resor t to other ai ds of inte

rpreta tion.") ; Solon v. Midwest Medical Records Ass’n., 236 Ill. 2d 433, 440, 925 N.E. 2 d 1113, 111 7 (2010) ( "When the statutory langua ge is cl ear and

unambig uous, it mus t be applied as written, without resort to extrinsic aids of statutory construction"); In re J.L. 236 I ll. 2d 329, 339-340, 924 N.E.2d 961, 966 (2010) ("Where the statutory language is clear a

nd unambiguous, it will be given effect as written, without re sort to other aids of construction.") Justice Schmidt has elected to "plead guilty " to violating this canon of statutory construction rather than conform the decision to the rule. 18 find ambiguity in light of the fact that he cites 19 other statutes in an attempt to define the term “proximate cause.” Slip op. at 8. If section 31-1 w ere indeed unambiguous it would be
unnecessary

and inappropriate to resort to sources outside the plain langua ge of the statute. See People v . Algarin , 200 Ill. App. 3d 740, 747, 558 N.E.2d 457, 461 (1990). 2 Justice Holdridge expressly finds section 31-1 to be ambiguous and proceeds to examine the statute’s legislative history . I too find section 31-1 to be ambiguo us. After careful review of the se outside sources, I ac knowledge that an argument c an be made tha t the leg islature

did not atta

ch exclusi

ve signi ficanc e to the de finite ar ticle in th e phrase “the pro ximate cau se.” My concurr ence wi th the majority ’s decis ion is base d solely upon this19

acknowledgment and the fact that we are charged with asce

rtaining the legislature’s ambiguous intent. I am left troubled, however , because a principle of statutory construction is that “ ‘the definite article “the” particularizes the subject which it pre cedes. It is a word of limitation as opposed to the indefinite or generalizing force of “ a ” or “ an .” ’ ” (Emphasis in original.) Sibenaller v. Milschewski , 379 Ill. App. 3d 717, 722, 884 N.E.2d 1215, 1219 (2008), quoting Brooks v. Zabka , 168 Colo. 265, 269, 450 P.2d 653, 655 (1969). Applying this principle, a compellin g arg ument ca n be made

that the le gislatu

re’s use of the la nguag e “the pr

oximate cause” illustrate s an inten

t to focus on the one

most immedia

te, eff icient, a nd direc t cause preceding an injury . See Robinson v . City of De troit , 462 Mich. 439, 459-60, 613 N.W.2d 307, 317 (2000 ). Alter

natively , the lang uage “ a proximate

cause” merely require s that the S tate establish that the accused’s actions were a c ontributing cause of the victim’s injuries. People v. Merritt , 343 I ll. App. 3d

442, 448, 7 97 N.E.2d

1103, 1107 (2003) (Holding “[a] person commits aggravated DUI

when his or her driving under the influence ‘was a proximate cause of the injuries’ *** [citati on], not the sole and i

mmediate cause of the victim ’s injurie s” (emph asis omitted)). Moreover, because section 31-1 is susceptible to two rea sonable and conflicting interpre tations, I am conce

rned tha t our holdi

ng viola tes the ru le of len ity. The supr

eme cour t in People v . Perry , 224 Ill. 2d 312, 333, 864 N.E.2d 196, 210 (2007), expressly stated: “ ‘[P]enal statutes, where ambiguous, should be construed to afford20 lenity to the accuse d.’ [Citation.] In such a circumstance, the penal statute must be strictly construe d in favor of the accused, with nothing taken by intendme nt or implication beyond the obvio us or liter al me aning of

the st atute . [Cita

tion. ]” While I am wary

of ignoring the rule of lenity simply on the basis of other irrele vant statutes and Senator Petka’s sparse statement that the State must prove that the office r’s injury was “pr oximately related ” to the de fendant ’s resist ance (9 2 Ill. Gen. Asse

m., Senate

Proceed ings, April 4, 2002, at 87-89), I acknow ledge that we ultimately

do in fact look to the legislative history of a statute whe

n attempting to ascertain its intent. See In re De tention of P owell , 217 I ll. 2d 123, 135, 839 N.E.2d 1008, 1015 (2005). It is my sincere hope, however, that the leg islature takes the opportunity in the future to clarify its intent so that other important ca ses like this one, where an individual’s conviction is being enhance d from a misdemeanor to a felony , are not determined on the basis of a senator’s two-word uttera nce.