NO. 4-05-0865 Filed 1/23/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
TYRONE DORN, ) No. 05CF102
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In August 2005, a jury convicted defendant, Tyrone
Dorn, of aggravated battery (720 ILCS 5/12-4(b) (West 2002)) for
spitting on a correctional institution officer. In October 2005,
the trial court sentenced defendant to three years' imprisonment.
Defendant appeals, arguing the court improperly instructed the
jury on the definition of "knowingly." We affirm.
I. BACKGROUND
In May 2005, the State charged defendant, an inmate at
the Pontiac Correctional Center (Pontiac), with aggravated
battery (720 ILCS 5/12-4(b) (West 2002)). The information
alleged that on or about November 19, 2002, defendant knowingly
made physical contact of an insulting or provoking nature with
Jason Brownfield, knowing Officer Brownfield was a correctional
institution employee engaged in the execution of his official
duties, by spitting upon Officer Brownfield's face.
The jury trial commenced in August 2005. Immediately
prior to selecting the jury, the parties discussed the State's
theory of transferred intent and what the prosecutor could say
about transferred intent in his opening statement. Defense
counsel argued that for defendant to be guilty of aggravated
battery, defendant had to choose to spit on the correctional
officer as opposed to attempt to spit on another inmate and
accidentally hit a correctional officer. The prosecutor, how-
ever, stated that if defendant knew a correctional officer was
in close proximity to the inmate at whom he was spitting, that
was sufficient to support the aggravated-battery charge. The
trial court stated as follows:
"That [(the prosecutor's statement)], I
think is the proper interpretation of the
law. Otherwise, it would be a defense to
every aggravated[-]battery case, well, [']I
intended to hit the inmate. Now, I knew the
officer was there. I knew the officer was
behind him.['] And I don't know what the
evidence is going to be here. [']I knew he
was close. I knew that if my spit went the
wrong way, I might hit the officer, but I
intended just to hit the inmate.['] We may
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have a directed verdict on aggravated battery
if on the aggravated part if the evidence is
that there wasn't any officer around. But if
the evidence is that the officer is in close
proximity to the inmate he was trying to hit,
I believe the legislature intended in that
case when you choose to spit on somebody,
with the officer being close by and you hit
the officer, then you run the risk of an
aggravated battery. I know that is contrary
to what your theory of the case is, [defense
counsel]. But I do think the State needs to
in opening statement, and you may want to
work on the instruction, the State is saddled
with the burden of showing he should have
known that the officer was close enough to be
hit by the spittle. He should have known
that."
After a discussion about other issues, defense counsel
again expressed concern that the trial court would not rule on
what instruction would be given regarding transferred intent and
knowledge before opening statements. The court responded that
the State would have to prove that when defendant spit, he knew a
correctional institution officer was close enough to defendant
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that if defendant missed, he might hit the correctional officer.
Defense counsel argued that the court's position was consistent
with the "knowledge" instruction (apparently referring to Illi-
nois Pattern Jury Instructions, Criminal, No. 5.01B (4th ed.
2000) (hereinafter IPI Criminal 4th No. 5.01B)). Defense counsel
stated that if the court was going to give that instruction on
knowledge, he wanted to know before closing. The court indicated
that an instruction would be given that met "that requirement"
but the specific instruction given would be decided at the
instruction conference. The court further indicated that counsel
had sufficient guidance for opening statements.
The parties then tendered proposed instructions,
including IPI Criminal 4th No. 5.01B and a non-IPI instruction.
Those instructions are not contained in the record on appeal.
The court found both instructions insufficient. The court
ordered both the State and defense counsel to prepare an instruc-
tion explaining to the jury that if defendant was aware a correc-
tional officer was in close proximity to defendant's intended
victim, and the correctional officer got hit even though defen-
dant did not intend to hit the correctional officer, he is
guilty. If defendant was not aware that an officer was close
enough to be hit, then the jury should find him not guilty. The
court also indicated that the parties could define "awareness."
After the jury was selected, the issue of knowledge
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arose again. The trial court discussed an instruction apparently
prepared by the court and the instructions tendered by the State
and defense counsel. These instructions appear to be somewhat
different than those tendered at the jury-instruction conference
and are not contained in the record on appeal. The trial judge
indicated he would give his instruction, over defense counsel's
objection, unless "I have some light of day here that I don't now
appreciate."
At trial, the State's witnesses testified that Officer
Brownfield, a correctional institution officer, was escorting
"inmate Moore" inside Pontiac. Billy Joe Austin, a correctional
institution officer, was escorting defendant. When Officer
Brownfield and defendant passed inmate Moore and Officer Austin,
defendant kicked at Moore but missed. After Officer Austin put
leg irons on defendant, Officer Austin and defendant again passed
Officer Brownfield and inmate Moore. They passed within five
feet of each other. This time, defendant spit. The spittle hit
Officer Brownfield in the face.
The State's witnesses testified that they believed
defendant was attempting to spit on inmate Moore but hit Officer
Brownfield. The State's witnesses also testified that Officer
Brownfield was in close proximity--less than an arm's length
away--to inmate Moore when defendant spit. Investigator Jack
Libby testified that during his investigation of the incident,
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defendant told Libby he was spitting at Moore but hit Brownfield
accidentally. Defendant did not testify at trial.
At the jury instruction conference, the trial judge
stated he would instruct the jury with court's instruction No. 1
over defendant's objection. Court's instruction no. 1 provided
as follows:
"A person's awareness of the fact that
he was going to perform a battery upon an
intended victim is sufficient to support a
charge of aggravated battery even if the
actual victim was not the intended victim,
provided the State has proved the following
propositions:
1. The defendant knew Jason
Brownfield to be a correctional
institution[] employee, who was
engaged in the execution of his
official duties.
2. The defendant knew Jason
Brownfield was in such close prox-
imity to the intended victim that
it was substantially probable Jason
Brownfield could be the victim of
the battery."
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The court rejected defendant's proposed instruction based on IPI
Criminal 4th No. 5.01B on the basis that it was "confusing" and
"inappropriate." The instruction tendered by defendant provided
as follows:
"A person acts knowingly with regard to
the nature or attendant circumstances of his
conduct when he is consciously aware that his
conduct is of such nature or that such cir-
cumstances exist. Knowledge of a material
fact includes awareness of the substantial
probability that such fact exists.
A person acts knowingly with regard to
the result of his conduct when he is con-
sciously aware that such result is practi-
cally certain to be caused by his conduct."
Defendant's instruction No. 1 (based on IPI
Criminal 4th No. 5.01B).
The trial court also instructed the jury, without
objection, as follows:
"A person commits the offense of aggra-
vated battery when he knowingly and by any
means makes physical contact of an insulting
or provoking nature [to] another person, and
in doing so, he knows the individual harmed
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is a correctional institution employee, who
at the time is engaged in the execution of
official duties." People's instruction No.
11 (based on IPI Criminal 4th No. 11.15).
The court further instructed the jury that the State had to prove
defendant (1) knowingly made physical contact of an insulting or
provoking nature with Officer Brownfield; (2) knew Officer
Brownfield was a correctional institution employee; and (3) knew
Officer Brownfield was engaged in the execution of official
duties. People's instruction No. 12; see also IPI Criminal 4th
No. 11.16. The jury found defendant guilty of aggravated bat-
tery.
In September 2005, defendant filed a motion for a new
trial raising, among other things, the jury-instruction issue.
In October 2005, the trial court denied defendant's motion and
sentenced defendant to three years' imprisonment.
This appeal followed.
II. ANALYSIS
Defendant argues the trial court, while properly giving
an instruction clarifying the element of knowledge, committed
reversible error by giving the court's own non-IPI instruction
rather than both paragraphs of the IPI instruction defining
"knowledge" (IPI Criminal 4th No. 5.01B). Defendant argues the
court's instruction imposed upon the State a less burdensome
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standard than that required by IPI Criminal 4th No. 5.01B.
Specifically, defendant argues the trial court's
instruction imposed a burden of proving a "substantial probabil-
ity" that defendant knew that the result of his conduct--hitting
the correctional institution officer--could ensue. However,
according to defendant, IPI Criminal 4th No. 5.01B contemplates a
greater burden on the State--the burden of proving defendant knew
that the result was "practically certain" to be caused by the
conduct. Defendant further argues that the result of his trial
would likely have been different had the jury been properly
instructed. Defendant contends that it was not "practically
certain" that defendant's spit would strike the correctional
officer rather than inmate Moore.
This court reviews de novo whether the jury instruc-
tions, as a whole, accurately conveyed the law. People v.
Parker, 223 Ill. 2d 494, 501, 861 N.E.2d 936, 939 (2006) (provid-
ing that the jury instructions are considered as a whole).
However, we review for an abuse of discretion the trial court's
decision to give a particular jury instruction. People v.
Daniels, 287 Ill. App. 3d 477, 485, 677 N.E.2d 1385, 1391 (1997).
In this case, we review de novo whether court's instruction No.
1, along with the other instructions, accurately conveyed the
law. This court reviews for an abuse of discretion the court's
decision to give that instruction.
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The offense of aggravated battery occurs when a person
commits a battery and knows the individual harmed is a correc-
tional institution employee engaged in the execution of his
official duties. 720 ILCS 5/12-4(b)(6) (West 2002). A person
commits battery when he "intentionally or knowingly without legal
justification and by any means *** makes physical contact of an
insulting or provoking nature with an individual." 720 ILCS
5/12-3(a)(2) (West 2002). This court has previously found that
spitting constitutes contact of an insulting or provoking nature.
See People v. Peck, 260 Ill. App. 3d 812, 814-15, 633 N.E.2d 222,
224 (1994) (involving a defendant spitting in the face of a
police officer).
Under the doctrine of transferred intent, one who does
an unlawful act is liable for the natural and probable conse-
quences of such act. See People v. Hickman, 9 Ill. App. 3d 39,
44, 291 N.E.2d 523, 527 (1973)(finding, under the doctrine of
transferred intent, that the defendant's intent to kill his
brother was sufficient to support an aggravated-battery convic-
tion for actually harming his ex-wife even though the defendant's
ex-wife was not the intended victim). Therefore, even if defen-
dant had only intended to commit a simple battery against inmate
Moore, he remained liable for the unintended consequences that
were the natural and probable consequence of his act. See People
v. Varnell, 54 Ill. App. 3d 824, 828, 370 N.E.2d 145, 147 (1977)
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(affirming conviction for aggravated battery under the
transferred-intent doctrine where the shooting of an individual
was a natural and probable consequence of the defendant's delib-
erate act of firing a cane gun to frighten a crowd); In re Joel
L., 345 Ill. App. 3d 830, 833, 803 N.E.2d 592, 594 (2004) (find-
ing the evidence supported the conclusion that the minor's
conduct in kicking the table was intentional and the bodily harm
to the officer that resulted was a natural consequence of the
intentional act); People v. Psichalinos, 229 Ill. App. 3d 1058,
1067, 594 N.E.2d 1374, 1381 (1992) (finding the defendant had the
requisite mental state as to the actual victim where the defen-
dant had the requisite mental state as to the intended victim).
When defendant requested a jury instruction on the
definition of "knowingly," the trial court sought to give such an
instruction in light of the transferred-intent doctrine. After
rejecting defense counsel's tendered instruction based on the
first two paragraphs of IPI Criminal 4th No. 5.01B as "inappro-
priate" and "confusing," the court instructed the jury with its
own instruction based on the first paragraph of IPI Criminal 4th
No. 5.01B.
Defendant argues the trial court should have instructed
the jury with the first two paragraphs of the applicable IPI
instruction, IPI Criminal 4th No. 5.01B. When the IPI contains
an instruction applicable in a criminal case, giving due consid-
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eration to the facts of the case and the applicable law, and the
court determines the jury should be instructed on the subject,
the IPI instruction should be used unless the court determines it
does not accurately state the law. 210 Ill. 2d R. 451(a); People
v. Smith, 237 Ill. App. 3d 901, 909, 605 N.E.2d 105, 110 (1992).
It is within the trial court's discretion whether to give or
refuse a non-IPI instruction. Smith, 237 Ill. App. 3d at 909,
605 N.E.2d at 110.
The first two paragraphs of IPI Criminal 4th No. 5.01B
provide as follows:
"A person [(knows) (acts knowingly with
regard to) (acts with knowledge of)] the
nature or attendant circumstances of his
conduct when he is consciously aware that his
conduct is of such nature or that such cir-
cumstances exist. Knowledge of a material
fact includes awareness of the substantial
probability that such fact exists.
A person [(knows) (acts knowingly with
regard to) (acts with knowledge of)] the
result of his conduct when he is consciously
aware that such result is practically certain
to be caused by his conduct." IPI Criminal
4th No. 5.01B.
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The committee note to IPI Criminal 4th No. 5.01B explains that
the first paragraph is applicable when the offense is defined in
terms of prohibited conduct while the second paragraph is appli-
cable when the offense is defined in terms of a prohibited
result. Defendant argues that he was not guilty of aggravated
battery unless he was "practically certain" that he would spit on
Officer Brownfield. Defendant cites People v. Lovelace, 251 Ill.
App. 3d 607, 622 N.E.2d 859 (1993), in support of his argument.
However, Lovelace is distinguishable. In Lovelace,
the appellate court held the trial court should have instructed
the jury with both paragraphs of IPI Criminal 4th No. 5.01B.
Lovelace, 251 Ill. App. 3d at 618, 622 N.E.2d at 867. The court
concluded that both conduct and result were at issue because the
indictment charged the defendant with aggravated battery by
knowingly causing great bodily harm and aggravated battery of a
peace officer with the underlying battery based on knowingly
causing bodily harm. Lovelace, 251 Ill. App. 3d at 619, 622
N.E.2d at 867. The court held that a defendant charged with
knowingly causing great bodily harm or bodily harm must be
consciously aware that his conduct is practically certain to
cause great bodily harm or bodily harm. Lovelace, 251 Ill. App.
3d at 619, 622 N.E.2d at 867.
In this case, defendant was charged with aggravated
battery of a peace officer based on knowingly or intentionally
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making physical contact of an insulting or provoking nature with
an individual. While the State was required to prove that
defendant knowingly or intentionally made physical contact of an
insulting or provoking nature, the State did not have to prove
that defendant intended to spit on Officer Brownfield or that, by
spitting, he was "practically certain" to hit Officer Brownfield.
Under the transferred-intent doctrine, so long as the State
proved defendant had the requisite intent as to inmate Moore, and
that hitting Officer Brownfield was a natural and probable
consequence of that act, the requisite intent transferred to
Officer Brownfield.
Consequently, the second paragraph of IPI Criminal 4th
No. 5.01B did not accurately convey the law. Although the first
paragraph of IPI Criminal 4th No. 5.01B is consistent with the
principles of the transferred-intent doctrine, the trial court
did not abuse its discretion by refusing to give the instruction
here. In fact, the court's instruction more clearly articulated
the principles of knowledge--consistent with the first paragraph
of IPI Criminal 4th No. 5.01B--and the transferred intent doc-
trine. Because the court did not abuse its discretion by refus-
ing to instruct the jury with IPI Criminal 4th No. 5.01B, and
because the court's instruction accurately stated the law, we
affirm defendant's conviction for aggravated battery.
III. CONCLUSION
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For the reasons stated, we affirm defendant's convic-
tion. As part of our judgment, we grant the State's request that
defendant be assessed $50 as costs for this appeal.
Affirmed.
McCULLOUGH and STEIGMANN, JJ., concur.
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