No. 2--06--0384 Filed: 4-11-08

_____________

_________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal f rom the Cir

cuit Court OF ILLINO IS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 04--CF--2430 ) JONATHAN CHATMAN, ) Honorable ) James C. Hallock, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Defend ant, Jonathan Chatman, appeals his convictions of aggravated dome stic battery (720 IL CS 5/12-- 3.3 (West 2002)) and domestic battery (720 5/12--3.2 (West 2002)) arising out of an alterca tion with hi s cousin, D eetra Chatman. He argue s that the t

rial cou rt's sub mission of I

llinois PatternJury I

nstructions, Criminal, No. 24--25.09 (4th ed. 2000) (hereinafter I PI Criminal 4th), entitled "Initial Aggr essor' s Use of F orce," was err oneous be cause

(1) the evidence did not warrant any instruction on self-defense and (2) the submission of IPI Criminal 4th No. 24--25.09, without additional instructions, assumed that defendant was the initial aggr essor even though there had bee n no prior finding or stipulation on that issue. We agree with defenda nt and reverse and remand. BACKGROUND Defendant quarreled with Deetra at a family g athering in Aurora on August 14, 2004. TheNo. 2--06--0384

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quarrel turn ed violent, and Deetra emerge d with a serious cut to her left arm and a broken orbital bone in her face. The State subsequently filed a four-count indictment against defenda nt. Count I charged defenda nt with aggrava

ted domes tic battery in that he caused "great bodily

harm" to Deetra,

a family member, by

stabbing her . C oun t II, which charged ag gravated battery (720 IL CS 5/12--4(a) (West 2002)), was identical to count I except that it lacked the alleg ation of familial relation. Count III also charged agg

ravated battery but alleg ed that de fendant inflicte d "bodily

harm" on Deetra "by

use of a deadly weapon," i.e. , a knife (720 I LCS 5/1 2--4(b) (1) (West 2 002)). Coun t IV charg ed defendant with domestic battery , alleging that he "hit [Deetra] about the body." Count IV was the only count that did not charg e defendant with stabbing Deetra. The case pr oceede d to t rial. In defend ant's opening statement, counsel denied that defendant wounded Deetra with a knife on August 14, 2004. Counsel stated that defendant and Deetra arg ued he at ed ly, and, when defendant "tried to leave the house, *** Deetra pu shed [hi m] and provoked him." When defendant tried to reenter the house, De etra "slammed [a] door" in his face. The State's

first witness w as Deetr

a. She tes tified tha

t on Augu st 14, 2004 , she ga thered w ith family members at he

r brother Damian Chatman's apartment. Present besidesDeetra and Damian

were Deetra's boy

friend, Damian's girlfriend, de fendant, and several children. Deetra testified that she is defendant's cousin. At about 9:30 p.m., Deetra and her boy friend were entering the a

partment fromthe porch just as defendant was exiting to the porch. Deetra testified that defendant said to her, "Give that man some air," to which she replied, "Shut up, bitch." Deetra testified that she did not speak th e words in a "hostile manner" and that she a nd defendant would often "play " and "joke around." Onthis occasi on, ho wever, defend ant be came an gry at Deetr a's words. He was angered further when Deetra unintentionally struck him with the porch door as she shut it. Deetra testifiedNo. 2--06--0384

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that defendant followed her into the apartment and slapped he r in the face with his hand. Damian told defendant to leave, and defendant went out to the porc h. Deetra testified that she went to the kitchen and stood at the counter with Da mian as he sliced tomatoes w

itha knife. A short time later, defendant came into the kitchen and told Damian, "I'm cool." Deetra testified

that defendant approached her a nd yelled, " Bitch, don't play with me like that." She yelled bac

k, "You not be hitting on me like those bitches y ou be hitting on." At

this point, defendant wa s "in [her] face" and had her " pinned against the counter" while he poke d her in the right temple with his fingers. Deetra testified that she pushed defendant away and grabbed the knife that Damian h ad used for c utting tomatoes. Deetra took the knife because she was afraid that defendant "was going

to do something else" to her. Deetra did not come toward defendant but stood inplace, shaking the knife and say ing, "Lea ve me the hell alone, leave me the hell alone." Defendant approached

Deetra but

Damian stepped

between them, telling defendant, "L eave, 'cuz, just leave." Deetra testified th at "s cu ff

li ng an d s tr ug gl in g" en su ed as Da mi an at te mp te d t o p us h d ef en da nt aw ay. During the struggle, defendant re ached over Damian's shoulder and punched De etra in th e r ig ht eye with his closed fist. Deetra

fell back again st

a closed door, which opened aga inst her weight. Deetra testified that she then fell to the floor. She recalled holding the knife as she fell. She blacked out during the fall and woke up on the floor. She saw blood on the floo r and a de ep cut to her left forear m. Deetr a was as ked how sh e might h ave susta ined the c ut: "Q . ** * [D ]o y

ou r ec al l ho w y

ou got t ha t c ut? A. I a ctually don't. * * *No. 2--06--0384

-4- Q. *** [W]hen you fell down, is it possible that y ou accidentally

cut yourself? A. I don't know. I

don't think so, but I don't know. Q. Well, you fell how y

ou said, you fell on y

our back? A. Yes. Q. An d w

he rewa s th e k

nif e? A. In my h ands. Q. In y our right hand? A. Yes. Q. Whe rewa s y our le ft han d, o ve r h er e [g es tur ing ]? A. Yes. Q. Okay . So y

ou didn' t cut y

ourself during t he fall, then, cor

rect? A. No." Deetra testi fied tha

t d efendant's punch fracture d her right orbital bone and that the cut to her arm required multiple stitches. Damian was the Sta

te 's ne xt witness. He testified that on the night of August 14, 2004, defendant and Deetra were "c alling each other names, back a n d fort h" in a "joking manner." Defendant

became upset when Deetra unintentionally closed a door on his

heel. Defendant went out to the porch but retu

rned shor tly a nd came into the kit

chen, wh ere Da

mian and D eetra w ere pre sent. Damian testified that defendant was still angry and told Deetra "to stop play ing with him." A "heated argume nt" arose be

tween the m, and the alterca tion turne d "phy

sical" w hen defe ndant slapped Deetra

. Damian testified that Deetra grabbed a knife from the kitchen counter in an "ang ered manner" and with the apparent intent to injure defendant. She approa c hed defendant, and Damian steppedNo. 2--06--0384

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between them. Defendant reach ed ov er Damian's shoulder and punched De etra. Defendant and Deetra then began "tussling," with def endant attempt ing "to get the knife away

from her in a defensive way." During the struggle, the knife dropped from Dee tra 's h and and cut her arm . In Damia n's words, "in the process of [defendant and Deetra] tussling over the knif e, she came up stabbed." Defend

ant neve r "[got ] the knife away

from [Dee

tra]" but the knife just "fe ll" durin

g their struggle. Damian te st ified that the cut to Deetra's arm was " accidental." Damian did not see defendant stab Deetra and never saw def endant even take possession o f the knife. Damian acknowledged

that defendant could have w ith drawn from the encounter and left the kitchen immediate ly

after h e punche d Deetr

a. He al so ackno wledge d, howeve r, that De etra be gan to st

rugg le with defendant immediately a fter he punched her. Damian testified that, after Deetra wascut, defendant fled and the police were c alled. Whil e the police we

re en ro ute, Dami an took the

knife an d washed it in the kitch en sink be cause

he "did n't want a bloody knife lay

ing ar ound." Damian acknowledged tha t he and defendant "were r aised together" and that

he did not want to see

defenda nt "ge t into any trouble." Damian denied telling the police that Deetra

took the knife to defend herself or that defenda nt wrested

the knife from Deetra and stabbed her. Aurora police officer Matthew F itchel testified that onthe evening of August 14, 2004, he and other officers were dispatched to an a partment in Aurora to investigate a report of a stab bing. Uponarriving at the apartment, Fitchel enc ountered Damian and inquir

ed about t he weap on used in the stabbing . Damian l ed Fitchel in to the kitchen , where Fitchel observed blood on the floor. Damian directed Fitchel to the kitchen sink, where Fitchel saw a knife. Fitchel later spoke to Deetra, who was "cry

ing *** on and off" during their c onversation.No. 2--06--0384

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Aurora police of ficer D avid Tell

ner testi fied tha

t he also w ent to Dam

ian's a partmen t to investig ate the report of a stabbing. Tellner testified that he c onversed with Damian, who said that Deetra had picked up the knife to defend herself and tha t defendant

grabbed the knife from her and then stabbed her in the arm. Defendant presented no witnesses. At the conference on jury

instructions, th e State te ndered a n instruc tion that tr

acked I PI Criminal 4th No. 24- -25.09, w hich is en titled "I niti al Agg

resso r's Use of Force." The instruction stated: "A person who initially pr ovokes the use of force aga inst himself is justified in the use of force only

if, The force u sed ag ainst him is so great that he reasonably

believes he is in imminent danger of death or great bodily

harm, and he has exhausted every reasonable means to escape the dange r other than the use

of forc e which is

likely to cause death or great bodily harm to the other person. Or Ingood faith, he withdraws from phy sical contact

with the other person and indicates clearly to the other person that

he desires to withdraw and terminate the use of forc e, but the other person continues or resumes t he use of force." The assis tant State 's Attor ney explained

her rat ionale f or tende ring the instructi on: "Weargue that though they have not officially

raised self-defense, there is the implication of such in the facts of the case ***. There's some innuendos that [Deetra] was the aggressor inthis case, e ven th ough t hey have no t rais ed sel f-defe nse, c learl y that's the innuendo fromNo. 2--06--0384

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the opening statements and I think that fr om the shakedown o f the evi dence, that's not the case, but I think this is rel evant to th e facts that t hey present to the ju ry at this time." Defense counsel objected:

"[W]e didn't raise self-defense and I don't think that

this Jury Instruc

tion belongs or should be given to the Jury without [ sic ] having raised the [ sic ] self-defense. What happened is what happened. The Jury is here to decide the facts and the State is try ing to decide the facts ahead of time say

ing that we're putting on a se lf-defense argument and we 're not." The court overruled defendant's objec tion, finding that IPI

Criminal 4th No. 24--25.09 "matche[d] up with the te stimony ." Neither part y proposed , nor did th e trial c ourt sua sponte submit, any additional instructions on self-defense. Inits initial c losing a

rgumen t, the State

departe d from the

langua ge of c ounts I and I

I, which alleged no conduct by def

endant other than that he stabbed Deetra. (Count IV wa s the only count that alleged that defendant

struck Deetra .) The Sta

te arg ued that t he eleme nt of "g reat bod ily harm" inboth counts could be met by either the stabbing or the punching, which Deetra claimed broke an orbital bone in her face. I n its rebuttal argument, the State clarified that count IV wa s "the slap and punch Count" and that the remaining counts were premised on the stabbing alone. In de fendant's closi

ng arg ument, co unsel sta ted: "On that Aug ust 14, 2004, summer night, when [defendant] and Deetra were together, Deetra started calling him a name, 'Bitch.' Yo u heard [D ami an] said, 'Well, it didn't really upse t [defenda nt] because the y were

pl aying around.' But when he, [defendant], tried to leave , Damian te st if ie d D ee tr a p us he d h im . It 's no t a cc id en ta ll y [ sic ], close the do or, hitting his heel, it was pushing and he tried to come back, the door slammed

and hit his face. [Deetra]No. 2--06--0384

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said--testified

that [defendant] was not really play ing when she called him a bitch, but she did not apo logize, even if [she] accidentall y hit his face with t he door." At this point, the State objected to defense counsel's claim that the door hit def endant in the face. The court sustained the objection, and counsel continued: "[B]oth witnesses who were there could not remember how [Deetra] got cut. And they were both fighting, when they

're back and fo rth s trugg ling with the phy sical co ntacts [ sic ], and [d efe ndant] was struggling with [Deetra] and there was a physica

l contact. It was not like 'May I have you r permiss ion to touch your hands,' and/or physical c ontact, it was very tense, both were fighting, there wa s no stabbing done by [defenda nt], no physical contact, insulting or provoking, knowingly

he insulted to [sic] [Deetra] ." (Emphasis added.) The ju ry returned

verdict s of guil

ty on count I

(agg ravate d domestic

battery - grea t bodily harm), cou nt II (agg rav ate d ba tt ery - g rea t b odi ly ha rm) , an d co unt IV (dome stic battery) but acquitted defendant on count II

I (agg ravated battery

- deadly we apon). Th e court denied defend ant's motion for a new tri al and sentenced him to concurrent prison terms of five y ears on count I, three y

ears on count II , and three years on count IV. On defendant's motion to reconsider his sentence, the court merged c ount II into countIand imposed a single five-y ear term concurrent with the three-year term on count IV. D efendant filed this timely appe al. ANA LYSIS Defendant

argues that: (1) the State did not prove the elem ents of a ggra vated domestic battery as charged in count I

of the indictment; and (2) the trial court erred by instructing the jury on self-de fense

at all and by g iving de ficient i

nstructions on self

-defen se besides. We address the latter argument first because it is dispositive of this matter.No. 2--06--0384

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Defendant

argues that the submission of IP I Criminal 4th No. 24--25.09, the "initial aggressor" instruction, was imprope r both because he did not admit to the acts charged in the indictmentand because the instruction was misleading in the absence of additional instructions on self-defense. The State's

first re sponse is t

hat defe ndant wa ived both prongs o f this arg ument by failing to make any mention of jury instructions in his motion for a new trial. " Genera lly, a defen

dant for feits review of any supposed jury

instruction error if he does not object to the instruction or offer an alternative at trial and does not raise the issue in a postt rial moti on." People v. Piatkowski , 225 I ll. 2d 551, 564 (2007). Supreme Court Rul e 451( c), howe ver, provides tha

t "substa ntial def ects [in criminal jury

instructi ons] are not waived by f ailure to make time ly o

bjection s thereto

if the inte rests of justice r equire. " 210 I ll. 2d R. 451(c). "Rule 45 1(c) is c oextensive with the plain-error clause of Supreme Court Rule

615(a) [( 134 I ll. 2d R. 615 (a))], a nd the tw o [pro visions] are construed identicall y." Piatkowski , 225 Ill. 2d at 564.

"[T]he plain error d octrine a llows a reviewing court to consider unpreser ved error when (1) a clear or obvious error occ urs and the evidence is so closely balanced that the error alone threate

ned to tipthe scales of justice against the defenda nt, regardless of

the serio usness of the error, or

(2) a clear or obvious error occurs and tha t error is so serious that it affected the fairness of the defendant's trial a nd challeng ed the in

tegrity of the jud

icial pro cess, regardless of th e closeness o f the evidence. " Piatkowski , 225 Ill. 2d at 565. Under the plain-error rule, we first determine whe ther there was any

error at all. Piatkowski , 225 Ill. 2d at 565. W e agree with defendant that the trial c ourt should not have given anyinstructions on selfdefense and, further, that the instructions the court did g ive on self-defense were misguide d.No. 2--06--0384

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IPI Criminal 4th No. 24--25.09, the "initial aggressor " instruc ti on, tracks section 7--4(c) of the Criminal Code of 1961 (Code) (720 IL CS 5/7--4(c) ( West 2002)). Section 7--4(c) restricts the default or basic right of self-de fense se

t forth in s ection 7- -1 of the Code (720

IL CS 5/7--1 (

West 2002)). S ection 7- -1 provid es: "A person is justified in the use of force ag ainst another when and to the extent that he reas onably

believe s that such conduc t is nece ssary to defen d himself or anothe

r agai nst such other's imminent use of unlawful fo rce. However, he is justified in the use of force whichis intende d or likely to cause death or great bodily harm only

if he reasonably

believes that s uch force is necessary to prevent imminent death or great bodily harm to himself o r another, or the commission of a forcible felony ." 720 IL CS 5/7--1 (West 2002). Section 7- -4(c) s tates:

"The justification described in [section 7--1] is not available to a person who: * * * (c) [I ]nitially

provoke s the use o f force agains t himself, unless: (1) Such force is so great that he r easonably be lieves that he is in imminent danger of death or gre at bodil

y harm, an d that he h as exhaust ed ever y r easonab le

means to escape such danger other than the use of force w hich is like ly to

cause de ath or great bodily

harm to the assailant; or (2) In good f

aith, he withdraws from phy sical contact with the assailant and indicates clearly

to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of fo rce." 720 ILCS 5/7--4(c) (West 2002).No. 2--06--0384

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Section 7--4 (c), and with it IPI Criminal 4th No. 24--25.09, na rrows the circumstances in which a person may use forc e to defend himself. See Peoplev. Townsend , 136 Ill. App. 3d 385, 391 (1985) ("a person who initiates or provokes the use of force has only a limited right to there after use force inself-defense"). I

PI Criminal 4th No. 24--25.09 is, as it were, a sub-instruction on self-defense and therefore must meet the preconditions for a self-de fense theory at trial. Self-de fense

is an affirmative defense (720 I LCS 5/7--14 ( West 2002)) and "the raising of such a defense necessarily constitutes an admission by the defendant that he committed the crime for whichhe is being prosecuted" ( People v. Raess , 146 I ll. App. 3d 384, 391 ( 1986)). T

hus, " '[r]aising the issue of self-defense requires as its sine qua non that de fendant had admitted [the battery ] as the basis for a reasonable belief that t he ex ertio n of su ch forc e was ne cessar y.' " People v. Diaz , 101 I ll. App. 3d 903, 915 (1981), quoting People v. Lahori , 13 Ill. App. 3d 572, 577 (1973); see also People

v. Charleston , 132 Ill. App. 3d 769, 773 (1985) ("Self-defense re lates to knowingly a nd intentionally using force to deter another; for it to be prese nt defendant must have fired the gun intentionally and, where an acci dent is cla

imed, self -defen se is out of the case"); People v. Kelly , 24 Ill. App. 3d 1018, 1027 (1975) ("Self-defense pre supposes the intentional use of force i n defen se of o ne's person" and "[t]he test is whether [the] accused honestly be lieved that he was in such danger, or apparent danger,

as required the means taken for his protection") . No instruction on self-defense, I PI Criminal 4th No. 24--25.09 or otherwise, is applicable to an act that a def endant denies committing. For instance, in Diaz , the defendants were charg ed with aggravated bat tery ar ising out of a quarrel with the victims. At trial, the defendants an d the victims disagreed over who initiated the quarre l. The trial c ourt reje cted the defenda nts' ten der of a self-de fense in struction . The app ellate court agreed that self-defe

n se was no t an avail able the ory because the "[d]ef

endants a nd theirNo. 2--06--0384

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witnesses consistently asserted that none of the vi ctims had b een struck." Diaz , 101 Ill. App. 3d at 914. The first codefendant "testified that afte r b eing called a name, he threw a mop at the complain ants whichdid

not hit them" and the second codefendant "a sserted that he grabbed someone, buthe did not testify that he used any force against the complaining witnesse s." Diaz , 101 Ill. App. 3d at 915. The court reasoned: "I f, as defendants asserted at trial, they never used any force a gainst the victims, then it follows that they could not have rea sona bly believed

force w as nece ssary

to protect them selves." Diaz , 101 Ill. App. 3d at 915. In Lahori , the defendant

was accused

of homicide for the shooting death of the victim. He challenged

the trial court's rejection of his proposed self-de fen se inst ruction. He argued that the instruction was appropr

iate "based on his testimony that althoug h he [did] not remember shooting the deceased, he [did] remember her hitting, scratching, and biting him, and th at if he d

id shoot her, he would have been actin g in self-defens e." Lahori , 13 Ill. A pp. 3d at 577. The court held that the defend ant's denial that he knowingly killed the victim was "inconsistentwith a proper claim of selfdefense." Lahori , 13 Ill. App. 3d at 578. See also People v. Tanthorey , 404 Ill. 520, 530 (1949) ("The instructions on self-defense were proper ly refused; the de fendant testified the killing

was an a ccident , that he was no t aware he had fired the revo lver or that he had shot [the vic

tim], and it w as not his intention or purpose to shoot him"). The State maintains that the indispens able pre mise in all of th ese cas es is that t he defe ndant, notthe State, requested the self-d efense instruction. The State suggests that " it is only when the defendant himself or

herself request s an instru

ction per taining to the justi fied use

of forc e that it is

necessa ry , as a pre

requisite , for the

defenda nt to have admitted committing the phy sical act again st the alleged victim." The State cites two cases, Diaz and People v. Jerome , 206 Ill. App. 3d 42 8No. 2--06--0384

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(1990), neither of which even r emotely supports the State' s notion. In both Diaz and Jerome , the defense request ed the se lf-defe

nse instru ction, an d in neithe

r case did the court digress to note what different standard, if any , would control if the instruction were requested by the State. Our research has disclosed but one published Illinois case, People v. Rice , 234 Ill. App. 3d 12 (1992), where the defendant appe aled the submission of a self-defense instruction tendered by

the State, ov er the defend ant's objection. The defendant in Rice wa s c ha rg ed wi th ag gr av at ed ba tt er y. He admitted a

t trial tha t he struck the vict

im, but he c laimed he

did so " 'reflexive ly'

" when t he victim scratched him. Rice , 234 I ll. App. 3d at 27. The

defenda nt also tes ti fiedthat his actions were in "

' self-def ense' " because he beli eved he " 'was being att acked.' " Rice , 234 Ill. App. 3d at 27. The defendant argued on appeal that the instruction on self-defense was improper beca use it "ran counter to his theo ry

of the ca se," wh

ich was that he lac

ked the me

ntal state for battery

due to the reflexive nature of his actions. Rice , 234 Ill. App. 3d at 26-27. The court uphe ld t he instruction on selfdefense , reason

ing:

" [A] ltho ugh the defense objected to the self-defense instruction, the State was entitled to suchan instruction based upon defendant's testimony at trial, stating that he acted in 'selfdef ense' and was '

protect ing' h imself wh en he hit [the victim] . Nevertheless, even if th e instruction was given in error, the evidence was so overwhelming that defendant did not 'r ea ct iv el y' hit [the victim] that any error was harmless. [The victim] specifically testified that defendant began beating her whe n she woul d not have

sex with h im. Further, [Officer] Watkins testified

that defendant told her, ' I don' t let no bitch hit me in the face and get away with it'; def endant a lso to ld Watkin s that he would 'kick her ass' if he we ren't handcuffed because 'every

woman needs to get their ass kicked.' L ikewise, the injuries suffered by [theNo. 2--06--0384

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vic ti m] are not consistent with a 'reflexive' punch, but ra ther indicate a severe and violent beat ing. Accord

ingly , we find

that def endant w as not den

ied a fa ir trial b y th e court' s instructing the jury on self-de fense." (Emphasis added.) Rice , 234 Ill. App. 3d at 27-28. The reasoning in Rice is consistentwith Diaz , Lahori , and Tanthorey

. The defendant in Rice admitted all elements of the crime. He testified that he struck the victim for a pur pose, i.e. , to defend himself, and thus admitted that

his actions were intentional. Thus, the State has not cited, nor have we found, any Illinois authority

that compels us to question that the prerequ isites for a self-d efense instruction are the same no matter which party requests the instruction. Inour view, the distinction urged by the State rests on an estoppel theory , as it would bar a defendant from brazenly plea

ding both that he did not com mit the act charged and that, if he did, the act was justifiable. The State never is so estopped, the arg ument go es, beca

use it necessa rily asserts all along that the defendant committed the acts char ged. We wonder, however, if the Stat e also ac ts intensio n w ith itself when it brings forth a defense that, if true, would under cut its assertion of culpability. We will not linger in this thicket, however, be cause the case law does not require it. Withthe principl es of Dia z , Lahori , and Tanthoreyin hand, we determine whether a selfdefense instruction w as appropr iate in this case. The State charged two distinct actions in the indictmen t. Counts I, II , and II

I charg ed defendant with stabbing Deetra. Count I V charged that defendant "hit [Deetra] about the body." On count IV, t he State presented evidence at trial that defendant slapped Deetra, pressed his finger s into her temple, and punched her. In c losing a rgumen t, defense counsel acknowledged that defe ndant "struggl[ed] with [Dee t ra] and there was a phy sical contact." Counsel did not admit to any spe cific physica l act by defe

ndant.No. 2--06--0384

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It was error for the trial court to submit a self-defe nse instruction on acts to which defendant

n ever admitted. Even if the jury we re unaware that the formal prec onditions for a self-defen s e instruction in Ill inois req

uired it to assume th at defe

ndant com

mit ted t he charged crimes, the jury would be profoundly c onfused by an instruction addressing the justification of force that defe ndant flatly denied using

. Our appro ach fin ds for eign support in Smith v. State , 698 So. 2d 632 (Fla. App. 1997), where the defendant was charge d with "burglary with a battery" and the trial courtinstructed the jury on selfdefens e at th e Stat e's request and over the objection of the defenda nt. The appellate court held that it was error to give the instruction: "Self- defense

*** results in a

tacit admission that the defendant committed the crime at issue. Inthis case, the State employe d the self-defense instruction to argue to the jury in closing that [the defe ndant] did not act in self-defense when he battere d the victim. Thus, the State was allowed to argue that [the defendant] should not be excused of his criminal conduct. While, at the same time, [the d

efen dant ], through

out the tri al, contende d he was n ot the intr uder in the victim's

apartme nt and this

was a ca se of misid

entifica ti on. The instruction was complete ly

inconsistent with [the defendant's] defense in this case and we ca nnot say it was harmless erro r." Smith , 698 So. 2d at 633. As in Smith , the def

ense her e admitte d none of

the ele ments of the crime charged, rendering selfdefense unavailable. Even if, as we firmly de

ny, a self-de fense instruction were appro priate here, w e would sti ll find error. The jury

was given an impossibly tr uncated understanding of self-def en se in that I

PI Criminal 4th No. 24--25.09 was not a ccompan ied by IPI Criminal 4th No. 24--25.06. IPI CriminalNo. 2--06--0384

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4th No. 24--25.09 is subject to a predicate fact, that defe ndant was the initial aggressor. I PI Criminal 4th No. 24--2 5.09 inclu des no alter native sta ndard of self-de fense to

be applie d if the pr

edicate is absent; rather, the pred

icate is s tated as

a given . Where I

PI Cri minal 4th No. 24--25.09 is submitted withou t IPI

Criminal 4th No. 24- -25.06 (t he defa ult or bas ic standa

rd of sel f-defe

nse), the jury is compelled

to assume that the defendant was the initial agg ressor and therefore

had a diminished right of self-defense. Such is the message o f People v. Day , 2 Ill. App. 3d 811 (1972), where the defendant challenged

the trial court' s submission

of IP I Crim

inal 4th No. 24--2 5.09 over his objection. The defendant argued that the instruction "erroneously assumed as a fact that [he] had initially provoked the encounter alt hough there was c onflictin g evidence." Day , 2 Ill . App. 3d a t 8 13 . The court acknowledged

that there was conflicting evidence on whether the defendant was the initial aggre ssor butconcluded that, because I PI Criminal 4th No. 24--25.09 was submitted together with IPI Criminal 4th No. 24--25.06, the jury c ould "resolve the issues on either hypothesis." Day , 2 Ill. App. 3d at 813;

see also People v. Fleming , 1 55 Ill. App. 3d 29, 37 (1987) ("Where there is conflicting evidence regarding the issue of self-defense, the jury should be given both the self-defense and initial agg ressor instruction so that the

y mig ht decide betwee n the conf

licting e vid e nce and apply

the correct law"). Unlike in Day , the jury here was given not

two hypot heses of sel f-defe nse to weigh according to the evide

nce but, r ather, t he fixed pr

emise that defendant was the initial aggre ssor. As the question of whether defendant was the initial aggre ssor had not been resolved, it was error for that issue not to go to th e j ur y. See People v. Edmondson , 328 Ill. App. 3d 661, 665 (2002) ("I dentifying the

initial aggressor is a question of fact for the jury to resolve"). It wa s equally wrong for the trial court, having instructed the jury on self- defense

(albeit i ncomplet ely ), not to also instruct it that the State had theNo. 2--06--0384

-17-

burden of disproving the defense bey ond a reasonable doubt. See People v. Lee , 213 Ill. 2d 218, 224 (2004) ("Self-defense is an affirma tive defen se, and once a defendant raises it, the State has the burden of proving bey

ond a reasonable doubt that the defendant did not act in self-defense, in addition to proving elements of the charge d offense"). Our plain -error

analy sis has, th en, unco vered se veral e rrors by the trial court. B ecause

th e defendant denied c ommitting

the acts charg ed, the tr

ial c ourt err ed by instructingthe jury on selfdefense at all and by submitting incomplete instructions on self-defense besides. These instructions assumed not only that

defenda nt committe d the act s charg ed but tha t he did so with the restricted right of sel f-defense possessed by an initial aggressor, even thoug h that particular issue had never be e n resolved. The instructions also said nothing of the State's burden of proving bey on d a reas onable doubtthat defendant did not act in self-defense. "The

defendant enjoy s the benefit of the presumption of inn ocence until the point during deliberation when the jury concludes that there existed p roo f beyond a reasonable do ubt." People v. Brooks , 345 Ill . App. 3d 945 , 951 ( 2004) . The t rial c ourt's instructions foisted on the jury vital assumption s rega rding de fendant's gui lt and evi scerat ed his presumption of

innocence. These are serious af fronts to the "fundamental doctrine of our system of criminal justice jurisprudence that the law presume s the innoc ence of an accu sed until

he is proved guilty beyond a reasonable do ubt" ( People v. Weinstein , 35 Ill. 2d 467, 469-70 (1966)). Our sy stem of justice cannot countenance the trial court' s errors no matter their actual impact on

the outcome of the trial. The errors were "so serious that [they] affe cted the fairness of the defendant' s trial and challenged

the integrity of

the j udicial proc ess, regardless of the closeness of the evidence" ( Piatkowski , 225 Ill. 2d at 565). Thus , "[p]reju dice to *** d efendant is p resumed" ( People v. Herron , 215 Ill. 2d 167, 187 (2005)), and we ther efore reverse and re

mand for a new trial.No. 2--06--0384

-18-

The court in Rice , we recognize, applied a harmless-error analy

sis to the instruction on selfdefense. Finding the instruc tion p roper because the defenda nt himself characterized his actions as defensive, the court noted alternatively that there was no prejudice from the jury' s likely assumption that the defendant committed the crime, for the evidence of t he crime w as overwhelming. The defendant in Rice , however, essentially admitted the crime in his testimony

. Here, defendant did not testify and the defe nse denie d all elements of the crimes charged. The e rror in the present case was correspondingly

greater than that

in Rice

. Smith , the more analog ous case , also app lied a ha rmless error analy sis, but of course we owe no deference to the Florida appellate court. Alth ough we have found

plain error independently of the outcome at

trial, we pause to n

ote that defenda nt's ac quit

tal on count III (agg

ravated battery

- use of a deadly

weapon) does not

necessa rily entail tha t the jury was n ot influenced by the misconc eived instruction on self-defense. The jury could have a ssum ed that defendant committed aggra vated battery

by stabbing De etra and yet found that the act was justified (even under the g reater burden e stablishe d by

IPI Criminal 4th No. 25--24.09). To explain this possibility, we note that cou nts I (agg ravated domestic battery

- great bodily harm), II (aggravated ba

ttery - g reat bodily harm), and I

II (aggravated

battery - use of a deadly weapon) charged that defendant stabbed D eetra, while cou nt IV charg ed that de fendant

"hit her about the body." The State contended in its initial closing argument, however, tha t the element of "great bodily harm" in counts I and I

I was satisfied not

just by the stab but also by the punch, which De etra testified broke her orbital bone. I

ndeed, the verdict of

acquitta l on count I

II and the ve

rdicts of guilty

on counts I, II, and

IV are reconcilable only on the supposition that the jury found that defenda nt struck Deetra, while also finding one (or more) of the following: (1) defendant did not stab Deetra ; (2) her woun

d did not constitute " bodily harm"; (3) he stabbed her justifiab ly; o

r (4) a k nife is no t aNo. 2--06--0384

-19-

"deadl y weapon," regar

dless of whether he stabbed her. Thus, the jury may well have

assumed, based

on the self- defense

instructi on, that de fendant stabbed D eetra, ye

t acquitte d him on othe

r groun ds. If the jury assumed that def

endant stabbed Deetra, it may well have a ssumed that he struck her as w ell and thus was guilty on c ounts I, I I, and I V. We briefly discuss the State' s alternative argument for finding that defe ndant's contentions are procedu rally defaulted. The State invokes the doctrineof invited error, which pr

ovides: "where the trial court's course of action is taken at defendant's sugge stion and the defendant thereafter acquiesces inthe court's expressed course of conduct, the de fendant should be pre clud ed from r aising s uch course of conduct as error on appeal." People v. Abston , 263 Ill. App. 3d 665, 671 (1994). The State argues that, because defendant expressly rejected a self-defense the ory below, he c annot now argu e any deficiency

in the self-defense instructions given to the jury

. Of course, this argument has no bearing

on the trial

court' s initial de cis io n to instruc t the jury on self- defense , which de fendant expressly contested and which we have found to be plain error. The argument has no force

even with respect to defendant's claim that the trial court erre d by submitting I PI Criminal 4th No. 24--25.09 without additional instructions. Th e State' s p remises are faulty . The course of action to which defendant assigns error was not

taken "at [his] suggestion," for the State was the party

who pressed for a selfdefense instruction. To be fra

nk, we al so find the

State's argume nt somewha

t disinge nuous. By the Stat e's logic, if defendant had proposed additional instructions on self- defense , again st his belief that the doctrine

was not a t all applicable, the State would doubtless claim that he had acquiesced in the submission of a self

-defen se theor

y in the first instance. We see no way in which defendant might have invited error here.No. 2--06--0384

-20-

Fi na ll y, we determine whether principles of double jeopar dy protect defendant from a new trial. Defendant's acquittal on count I II is an absolute bar to retrial on that co unt. S ee People v. Milka , 336 Ill. App. 3d

206, 224 (2003) ("Once a defe ndant has been acquitted

of an off ense, do uble jeopardy prohibits a second prosecution for that offe nse"). As for the

remainin g count s, " '[d]o

uble jeopardy does not pr

eclude r etrial of a defen dant whos e conviction is supported by sufficient evide

nce butset aside

because of errors in proce ss ' [citatio n]" ( People v. Gargani , 371 Ill. App. 3d 729, 736 (2007)). "When considering the sufficiency of the evidence, a reviewing cour t does n ot retry the defendant." Gargani , 371 I ll . App. 3d a t 736. "Rather, *** the relevant question is whether, after viewing the evidence in the light most favorab le to the prosecut ion, any rationa l trier of fact co uld have found the

essentia l element s of the crime b eyond a reasonable doub t." People v. Smith , 185 Ill. 2d 532, 541 (1999). We begin with count IV, on which the evidence was undisputed. Co unt IV charg ed domest ic battery (720 IL CS 5/12--3.2(a)(2) (West 2002)) and alleged that de fendant "knowingly

made contact of an insulting or provoking nature with [Deetra] *** in that [he] hit her abou t the body." Damian and Deetra, the only

two occurrencewitnesses at trial, testified that defendant slapped and punched Deetra. Defend

ant offe red no ev idence t o challe nge this testimony . The con

viction on count I V was, we conclude, supported by sufficient evidence. The evidenc e also sup

ports the convictions on counts I and I I, but the question is somewhat closer. Counts I and I I both charg ed aggravated battery and a

lleged that defendant stabbed Dee tra. Damian and Deetra both testified that Deetra was stabbed with the knife near the end of he r strug gle with defendant in the kitchen. Deetra testified that defe ndant punched

her and she fell back, and her last memory was of f

alling while holding the knife in her right hand. She awoke on the floor and sawNo. 2--06--0384

-21-

that her lef t arm had been cu t. Deetr a initially testified that she did not know whether she acc identally cut herself "[w]hen [she] fell down." When, however, she was asked a bout the position of

her hands during the fal l and asked again whether she "cut [her]sel f during the fal l," Deetra repli ed, "No." Damian gave a significantly

different version of events. Where Deetra testified that she still had the knife as she began to fall, Damian testified that the knife fell from Deetra's gr

asp during her strugg le with defe

ndant, ap parentl y w hile she w as still upr

ight. Da mian clai med that the cut to Deetra 's arm was a

ccident al. Damia

n testifie d that he never sa w defen dant ta ke poss ession of the knife an d that he never tol d

the police that def

endant st abbed De etra. Da

mian did, however , admit that he took the knife from the f loorand cleaned it before the police arr ived. He explained that he "didn 'twant a bloody knife la ying a round." Tellner testified that he was told by Damian that defendant "got t he knife [fr om Deetra] an d then stab bed her." The State's evidence that defendant stabbed D eetra was largely circ umstantial, but "[a] defendant can be convict ed solely on circums tantial evi dence" ( People v. Saxon , 374 Ill. App. 3d 409, 417 (2007)). "When

the evidence is circumstantial, the jury need not be satisfied

bey ond a rea sonable doubtas to each link in the chain of circumstances. The e vidence is sufficient if all of it, taken together, satisfie s t he jury th at the defendan t is guilty beyond a reasonabl e doubt." Milka , 336 I ll. App. 3d at

229. "[T]he

reviewi ng cour t must allow all reasonable inferences fr om the record in favor of the prosecut ion" ( People v. Cunningham , 212 Ill. 2d 274, 280 (2004)), and "the question is not whether a ration al j ur y could have acquitted defendant" but " whether a rational jury could have convicted h im" ( Milka , 336 Ill. App. 3d at 230). Deetra testified that she blacked out during the strugg le and did not remember being cut. Only Damian claimed to have witnessed Deetra being cut, and he denied that defenda nt intentionally cutNo. 2--06--0384

-22-

her. A rati onal j ury could well h ave fou nd Dam ian di scredi ted by Tel lner's impeachingtestimony and by his own improbable claim that, with police en route, he would disturb a po tential c rime scene purely for cleanliness. A rational jury could also have found tha t stabbing Deetra was cons istent with defend ant's apparently unr elenting hostility toward he r that night. Finally, de fendant's flight from the

scene was "a circumstance from which a trier of fact may

infer cons ciousnes s o f guilt." People v. McDona ld , 168 Ill. 2d 420, 448 (1995). We find the convictions on counts I and II supp orted b y sufficient evidence. There is, we conclude, no double jeopardy bar to a new trial on counts I, I I, and I V. In s o concluding, we make no finding of g uilt that is binding on retrial. See Gargani , 371 I ll. App. 3d at 737. For the foregoing

reasons, we reverse the

judgment of the circuit court of Kane County and remand this case for further proce edings consistent with this opinion. Reversed and remanded. BYRNE, P.J., and ZENOFF, J., concur.