People v. Jackson

2017 IL App (1st) 142879
No. 1-14-2879
Opinion filed June 27, 2017
Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

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Appeal from the Circuit Court
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THE PEOPLE OF THE STATE OF ILLINOIS, of Cook County.
)
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Plaintiff-Appellee,
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No. 10 MC6 014663
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v.
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JAMES JACKSON, The Honorable
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Thomas J. O’Hara,
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Defendant-Appellant. Judge, presiding.
)
)

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

OPINION

¶1 After James Jackson calls 911 for an ambulance, the paramedics arrive to find him

“agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of

psychological issue and with an “altered” mental state. The paramedics call for police assistance.

Jackson screams and flails; one officer uses his Taser on Jackson, striking him 10 times. Another

officer tries to grab Jackson and gets kicked in the shins. Jackson resists being placed in

handcuffs. Ultimately, the police subdue him and place him into the ambulance for transport to

the hospital. Jackson is charged and convicted of battery and resisting arrest.
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¶2 This, in sum, is what happened to James Jackson, and what happens all too often to

individuals who may be experiencing a mental health or other crisis. When they (or their

families) call for help, they are met with some use of force by officers. See U.S. Dep’t of Justice

Civil Rights Div. & U.S. Attorney’s Office Northern Dist. of Ill., Investigation of the Chicago

Police Department 37 (2017), https://www.justice.gov/opa/file/925846/download (listing

incidents where Chicago police officers “used force against people in crisis who needed help”).

The DOJ report reveals that, as here, law enforcement officers, often “first responders” to mental

health emergencies, are not necessarily trained or prepared to deal with the complex situations in

which they may find themselves. The lesson in these cases can be stark: call 911 and someone

could end up charged with a crime, or worse. (The dissent states that there is no evidence that

Jackson was mentally ill, infra ¶ 101, but this ignores testimony from every state witness that

Jackson was “irrational.” The ultimate diagnosis is irrelevant—what matters is how Jackson

acted.)

¶3 Battery against a police officer is a serious charge, but being kicked in the legs by a

mentally unstable person (causing no serious injury) is not the type of touching that requires

either specific or general deterrence. Sometimes, the initial decision to arrest or charge a

defendant becomes a boulder rolling downhill, and no one feels strong enough to say, “stop,”

regardless of the resources wasted. The dissent feels we should not find fault with the officers’

actions and theorizes that they had no choice but to wrestle Jackson to the ground and tase him

10 times. Infra ¶ 100. But the officers should have received training in how to de-escalate such a

situation. The officers did not tase Jackson out of malice, but because they did not know what

else to do. The restraint used on Jackson did not assist the paramedics in assessing Jackson’s

health—how could they do so, after he had been zapped with 50,000 volts? All they could do

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was bundle Jackson into an ambulance. The lack of training turned a call for help into a

contentious encounter with police.

¶4 Prosecutors too should receive training to enable them to distinguish between those

responsible for their actions and those, like Jackson, whose vulnerable or abnormal mental state

causes them to act in uncooperative or confused ways. We will say it outright—this prosecution

was a waste of time and money, all so that Jackson could be sentenced to 18 months of

conditional discharge.

¶5 Jackson challenges the sufficiency of the evidence. He also contends that several errors

occurred during trial, which he asks us to review under the plain error standard. And he claims

that his trial counsel was ineffective for failing to preserve those errors.

¶6 We find the evidence was legally insufficient to support Jackson’s conviction. Further,

several errors occurred during trial—the trial court (i) failed to properly question potential jurors

during voir dire; (ii) erringly admitted other-crimes evidence that Jackson smelled of marijuana;

and (iii) erringly admitted opinion testimony from paramedics that Jackson was not having a

seizure during the incident. The State in its closing argument relied on this inadmissible

evidence, and so did the jury in convicting Jackson. We reverse Jackson’s conviction, and the

State may not retry him. People v. Lopez, 229 Ill. 2d 322, 367 (2008) (State may not retry

defendant once it has been determined evidence introduced at trial was insufficient to sustain

conviction).

¶7 BACKGROUND

¶8 Before trial, the judge asked each panel of potential jury members whether they disagreed

with, or would be unable to follow, the rules of law that (i) Jackson is presumed innocent; (ii) the

State has the burden to prove him guilty beyond a reasonable doubt; (iii) Jackson did not need to

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present evidence; and (iv) Jackson’s failure to testify could not be held against him. The judge

did not ask the panels whether they understood and accepted these principles. Jackson’s counsel

did not object to these questions.

¶9 The relevant facts adduced at trial follow.

¶ 10 On December 10, 2010, James Jackson called 911 from his apartment building in

Calumet City, and requested an ambulance. Calumet City fire department paramedic Timothy

Piepenerink testified that he and his partner, Chris Stapleton, responded to an ambulance call for

an unknown medical emergency at about 6:00 p.m. They arrived in a large ambulance labeled

“Calumet City Fire Department” and entered the apartment building through the front door into a

vestibule. A second door separated the vestibule from the rest of the building. Jackson was

behind the second door, and said that he needed an ambulance. When Piepenerink identified

himself, Jackson replied, “You are not the ambulance.” Piepenerink observed that Jackson

seemed “a little bit nervous and kind of upset.”

¶ 11 Piepenerink and Stapleton coaxed Jackson outside to show him their ambulance, but

Jackson loudly insisted they were not paramedics. Jackson began calling 911, repeatedly asking

for an ambulance despite the dispatcher telling him the ambulance was there. Jackson began to

yell profanities, so Stapleton requested police assistance. Piepenerink thought Jackson might be

suffering from some type of psychological issue: “he was not rational. We couldn’t get through

to him. *** He was nervous. There was something going on.” Stapleton thought that Jackson’s

“mental status was altered”; Jackson did not follow simple directions and did not seem to be

thinking clearly. Piepenerink and Stapleton also noted that Jackson smelled of marijuana.

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¶ 12 Jackson tried to go back inside the building but did not have his key for the second door,

so he and the paramedics waited in the vestibule area for the police to arrive. During that time,

Jackson kept yelling “don’t touch me” and appeared agitated.

¶ 13 When Officer Dan Piech arrived, the paramedics met him in the driveway and informed

him that Jackson was mentally unstable, or possibly under the influence of an unknown

controlled substance. Jackson stayed in the vestibule screaming profanities and “I am not

going.” Officer Piech tried to calm Jackson and convince him to go with the paramedics, but

Jackson kept yelling. Piech reached for Jackson’s shoulder; Jackson pulled away and fell

backwards, sliding down the vestibule wall to the floor. Jackson then began to punch and kick,

in a manner Piech characterized as “defending myself” rather than “violent.” Piech tried and

failed to handcuff Jackson, while the paramedics attempted to hold down Jackson’s legs. During

the struggle, Jackson tried to bite Stapleton’s arm. But, Stapleton pulled away and Jackson

clamped down on Stapleton’s sweatshirt. Piech then used his department-issued Taser, in the

“dry stun” mode, to stun Jackson with 50,000 volts in the waist area. Normally, using the Taser

would make a subject less combative. Piech tased Jackson “about 10 times.” On Jackson, the

Taser had “no affect whatsoever.”

¶ 14 A few minutes later, Officer Gary Wojcik arrived. From outside, he could hear Jackson

screaming. Inside the vestibule, Wojcik tried to assist Piech in handcuffing Jackson while the

paramedics backed away. To Wojcik, Jackson seemed “irrational.” He noticed that the vestibule

had a “very strong odor of burnt cannabis,” though he did not know where the smell had come

from. Jackson kicked Wojcik several times in the lower legs. Wojcik put handcuffs on one of

Jackson’s wrists; Jackson pulled away, and began punching the glass window in the vestibule.

Piech then tased Jackson again, which had no effect. After struggling for several minutes to

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subdue Jackson, the two officers succeeded in placing handcuffs on him. Jackson was placed on

a stretcher, put in the ambulance, and transported to the hospital. There, Jackson was still

unhinged and screaming.

¶ 15 According to Jackson’s longtime girlfriend, Stephanie Stelly, Jackson wore leg braces,

and suffered from seizures. Stelly had observed Jackson having seizures 10 to 20 times over the

previous seven years, and the seizures did not always present in the same way. On the day of the

incident, Stelly returned to the apartment building while Jackson was being placed in the

ambulance. She saw blood on Jackson’s face. His head was turning from side to side. Stelly had

seen that motion before—when Jackson was going into or coming out of a seizure.

¶ 16 Peipenerink was unable to medically examine Jackson, but opined that Jackson had not

had a seizure. Over defense objection, Piepenerink described what was typical of a seizure:

“What we have been trained if the patient responds as what we consider, [postictal]. It’s a

medical term where you just — you are slow *** to respond. They are sluggish. They have no

idea where they are at. They can’t answer questions. It’s kind of slow to respond usually

normally.” Jackson was vocal and his movements brisk. Piepenerink admitted that he did not

know whether Jackson had suffered a seizure before the paramedics arrived and that seizures can

take different forms.

¶ 17 Stapleton also opined, over objection, that Jackson was not having a seizure: “I have

never seen a person after post seizure act the way Mr. Jackson did that day. The people coming

out of the seizures are more confused. *** Sometimes seem a little aggressive. They are scared.

They are more confused, but they just don’t [d]o that type of aggression and strength for that

matter. Usually when people are having seizures, all of the energy in their body is pretty well

spent from the seizure itself, and they don’t just physically have the energy to carry on the way

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Mr. Jackson did that afternoon.” Stapleton believed that someone having a seizure would be

unable to bite at another in the manner that Jackson did, or be as vocal as he was, or make the

kind of statements Jackson made during the incident. Nor would someone having a seizure

continue flailing like Jackson had at the hospital. Stapleton admitted that not all seizures have

the same symptoms, and clamping down with the teeth is a symptom of a seizure.

¶ 18 During closing arguments, the prosecutor told the jury that they “heard four witnesses

from our side. You heard one witness from the defense side. It’s up to you now to judge the

credibility.” The prosecutor emphasized the paramedics’ opinions that Jackson was not having a

seizure, noting that Jackson was not charged with biting Stapleton, thereby rendering the

paramedics’ testimony more credible. Over objection, the prosecutor stated that “maybe smoking

a lot of cannabis or something else” could explain Jackson’s behavior, and reminded the jury that

“at least three different people on the stand *** told you that he smelt strong like cannabis.”

¶ 19 The jury pronounced Jackson guilty of battery and resisting a peace officer. Jackson’s

counsel filed a posttrial motion which did not address (i) the judge’s questioning of the jury

before trial; (ii) the admissibility of the paramedics’ opinion testimony; (iii) the testimony from

three of the State’s witnesses regarding the odor of cannabis; or (iv) the State’s closing argument.

The motion was denied, and the trial court sentenced Jackson to 18 months of conditional

discharge.

¶ 20 ANALYSIS

¶ 21 Sufficiency of the Evidence

¶ 22 Jackson contends he was having a medical emergency and lacked the mental state for

either knowingly committing battery or knowingly resisting a peace officer. We must decide

whether the evidence could reasonably uphold a finding of guilt beyond a reasonable doubt.

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People v. Cunningham, 212 Ill. 2d 274, 278 (2004). We view the evidence in the light most

favorable to the State, and determine if any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

People v. Steele, 2014 IL App (1st) 121452, ¶ 20. We will only reverse a conviction if the proof

was so improbable, implausible, or unsatisfactory that reasonable doubt exists as to the

defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).

¶ 23 The trier of fact assesses the credibility of the witnesses, determines the appropriate

weight to give the testimony, and resolves inconsistencies in the evidence. Id. at 211. Our

function on review is neither to retry the defendant nor substitute our judgment for the trier of

fact’s judgment. Id. We will not reverse a conviction based on contradictory evidence presented

by witnesses. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).

¶ 24 Battery occurs when, without legal justification, a person knowingly “makes physical

contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3(a)(2) (West

2010). A person resists a peace officer when he or she knowingly resists the performance by one

known to the person as a peace officer. 720 ILCS 5/31-1(a) (West 2010). A person acts

knowingly when he or she is “consciously aware that that result is practically certain to be

caused by his conduct.” 720 ILCS 5/4-5(b) (West 2010). Intent, such as knowingness, may be

proven by circumstantial evidence, and inferred from the defendant’s action and the conduct

surrounding it. People v. Phillips, 392 Ill. App. 3d 243, 259 (2009).

¶ 25 At trial and on this appeal, Jackson claims he was having an epileptic seizure during the

incident, rendering his kicking of Officer Wojcik involuntary. He also claims that due to his

mental state, he did not knowingly resist a peace officer. The State maintains Jackson did not

present sufficient proof that he was having a seizure.

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¶ 26 But even if, as the State suggests, we ignore Jackson’s contention that he was having a

seizure, the evidence was insufficient to support a finding that Jackson had the requisite mental

state to commit these crimes. Rather, there was an abundance of evidence—almost all of it from

State witnesses—that Jackson was not “knowingly” acting during the incident. Both paramedics

observed, on their arrival, that Jackson was “nervous” and “agitated.” Piepenerink thought

Jackson was suffering from some type of psychological issue, and Stapleton thought Jackson’s

mental state was altered. Though the paramedics were in uniform, and driving a vehicle

distinctively marked as an ambulance, Jackson repeatedly denied they were paramedics and

continued to call 911. Jackson grew more and more upset and neither the paramedics nor Officer

Piech could communicate with him. Officer Wojcik arrived, and Jackson kicked him and

resisted being handcuffed, but Officer Wojcik immediately recognized Jackson’s behavior as

“irrational.” While, as the dissent points out, Jackson was speaking in complete sentences—

infra ¶ 85 —those sentences included telling Piepenerink and Stapleton that they were not, in

fact, paramedics. Jackson’s verbal coherence does not indicate a “knowing” state of mind

indicating that he understood what was happening to him.

¶ 27 Whatever the cause of Jackson’s behavior—epilepsy, drug intoxication, some

undiagnosed mental illness, or being Tasered 10 times—carries no consequence in as much as

the State presented little-to-no evidence that Jackson behaved “knowingly.” When Jackson was

thrashing in the vestibule in a “defending myself” manner, was he “consciously aware” that his

thrashing would result in kicking Officer Wojcik? If Jackson did not recognize Piepenerink and

Stapleton as paramedics, where was the evidence that he “knew” that Piech and Wojcik were

police officers, as the statute requires?

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¶ 28 The dissent speculates that, even if Jackson’s behavior was caused by voluntary

intoxication or mental illness, he would still need to plead that theory as an affirmative defense.

Infra ¶ 90. But we analyze only the evidence presented by the State, not Jackson’s chosen trial

strategy—after all, as defendant, Jackson was not required to present any evidence. He could

have simply required the State to meet its burden of proof without ever mentioning the word

“seizure.” We do not know why Jackson was behaving this way, but we do not need to know.

Jackson’s mens rea of “knowing” was an element that the State needed to prove, and it failed to

do so.

¶ 29 Jackson’s intent can be inferred from his conduct surrounding the battery and resistance,

as well as the actions themselves. Phillips, 392 Ill. App. 3d at 259. When a defendant behaves

“normally,” it is simple to make this inference—we assume that a rational person who kicks a

police officer, or resists arrest, knows what he or she is doing. But here, all the State witnesses

testified that Jackson was not behaving “normally,” and so we cannot infer from his actions (as

the dissent does) that Jackson was “consciously aware” of what he was doing and the results of

his actions. Rather, from the State’s witnesses’ testimony about his actions and conduct, we can

infer that Jackson’s intent was not “knowing,” in the sense that he was not “consciously aware”

of the results of his actions.

¶ 30 The dissent accuses us of sidestepping the seizure argument, and believes that we should

limit our analysis to Jackson’s trial theory that he was suffering from a seizure. Infra ¶ 84. The

defense attorney’s seizure argument or theory is not evidence. But Jackson challenges the

sufficiency of the evidence under the Jackson v. Virginia standard, which requires us to examine

the essential elements of the crime, and mens rea is undoubtedly essential. See In re Winship,

397 U.S. 358, 364 (1970) (Constitution protects defendant against conviction except on proof

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beyond reasonable doubt of “every fact necessary to constitute the crime with which he is

charged”); Illinois Pattern Jury Instructions, Criminal, No. 2.03 (3d ed. 1992) (defendant

presumed innocent, and State has burden to prove guilt beyond reasonable doubt). In reversing

the convictions, we are not doing Jackson’s legal analysis for him, or raising a new claim on his

behalf—we merely rely on the legal principles he cited in his brief, and a through reading of the

record.

¶ 31 We find the State’s evidence establishing Jackson’s mens rea or mental state, here his

knowledge, was so conflicting, so unsatisfactory, as to create reasonable doubt of Jackson’s

guilt. Accordingly, the evidence was insufficient to support Jackson’s convictions.

¶ 32 Plain Error Analysis

¶ 33 Jackson alleges several trial errors: (i) the trial court failed to follow Illinois Supreme

Court Rule 431(b) (eff. July 1, 2012) and ask potential jurors whether they understood and

accepted certain principles; (ii) the trial court should not have admitted evidence that Jackson

smelled of marijuana; (iii) the trial court should not have admitted the paramedics’ “lay opinion”

testimony that Jackson had not had a seizure; and (iv) the State made improper statements in

closing argument. Jackson acknowledges his trial counsel failed to preserve these errors;

nevertheless, he argues they merit reversal under the plain error doctrine. The burden falls to

Jackson to show a clear or obvious error occurred, and either (i) the evidence is so closely

balanced that the error, standing alone, threatened to tip the scales against him regardless of the

seriousness of the error; or (ii) the error was so serious that it affected the trial’s fairness and

challenged the integrity of the judicial process. People v. Thompson, 238 Ill. 2d 598, 613 (2010).

¶ 34 The dissent states that the plain error doctrine is “(over)use[d].” Infra ¶ 91. It is not for us

to criticize the existence of a doctrine laid out by our Supreme Court (adhered to as recently as

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People v. Sebby, 2017 IL 119445, ¶ 48) or blame appellate attorneys for using it. (After all, it is

rarely the client’s fault that his or her trial attorney failed to preserve an error.) And we do not

share the dissent’s concern that plain error “erodes the proper deference we owe to trial courts.”

Infra ¶ 91. Rather, plain error ensures the integrity of the judicial process and the protection of

the defendant’s right to a fair trial, and has been codified in Illinois Supreme Court Rule 615(a).

¶ 35 The Trial Court’s Questioning of Potential Jurors

¶ 36 Jackson argues that the trial court’s failure during jury selection to ask potential jurors

whether they both understood and accepted the principles of Supreme Court Rule 431(b)

constitutes plain error.

¶ 37 Supreme Court Rule 431(b) mandates that a trial court ask potential jurors whether they

“understand[ ] and accept[ ]” these four principles: (i) the defendant is presumed innocent; (ii)

the State must prove the defendant guilty beyond a reasonable doubt; (iii) the defendant is not

required to offer any evidence on his or her own behalf; and (iv) the defendant’s failure to testify

cannot be held against him or her. Ill. S. Ct. R. 431(b) (eff. July 1, 2012); Thompson, 238 Ill. 2d

at 606. Failure to question the jurors on each of these four principles violates the rule.

Thompson, 238 Ill. 2d at 607. Further, the trial court should use the words “understand and

accept”; asking jurors if they disagree with these principles does not suffice. People v. Belknap,

2014 IL 117094, ¶ 46.

¶ 38 During voir dire, the trial court neglected to use the words “understand and accept,”

rather the judge asked potential jurors if they disagreed with the four principles or would be

unable to follow them. The State rightly concedes error. Id.

¶ 39 Evidence of Marijuana Usage

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¶ 40 Jackson argues the admission of testimony that both he and the vestibule area smelled of

marijuana was plain error. “Other-crimes” evidence may not be admitted to prove a defendant’s

propensity to commit a crime because a jury might convict the defendant not based on the

evidence, but that the defendant deserves punishment. People v. Placek, 184 Ill. 2d 370, 385

(1998). Nonetheless, this type of evidence can be admitted to prove intent, modus operandi,

identity, motive, absence of mistake, or any material fact other than propensity that is relevant to

the case. People v. Donoho, 204 Ill. 2d 159, 170 (2003). Even when the evidence is admissible,

the trial court must weigh its prejudicial effect versus its probative value, and exclude it if too

prejudicial. Placek, 184 Ill. 2d at 385.

¶ 41 The State argues that the testimony regarding the cannabis smell was relevant to the

“continuing narrative” of Jackson’s arrest as it informed the actions of both the police and the

paramedics. People v. Thompson, 2013 IL App (1st) 113105, ¶ 102 (admitting evidence of

defendant’s marijuana usage where it was “intertwined” with crime). But none of the evidence

presented regarding the cannabis smell was, in fact, part of any continuing narrative. Even

crimes that occur in close proximity will not be admitted as part of a continuing narrative “if the

crimes are distinct and undertaken for different reasons at a different place at a separate time.”

(Internal quotations marks omitted) People v. Adkins, 239 Ill. 2d 1, 33 (2010). Assuming the

cannabis smell indicated that Jackson had illegally used marijuana, no medical evidence was

introduced as to when or where he had used it, or that he was still under its influence during the

incident. There was nothing linking possible marijuana use with Jackson’s behavior in the

vestibule. The dissent assumes this connection, infra ¶ 93, but it was not made by the evidence..

¶ 42 And nothing indicates that the marijuana smell impacted anyone’s actions, either

Jackson’s or the police’s and paramedics’. Officer Wojcik testified that the vestibule area

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smelled strongly of burnt cannabis, but admitted that he did not know where the smell had come

from. Paramedics Piepenerink and Stapleton both testified that Jackson smelled like marijuana.

But none of these three witnesses attributed Jackson’s irrational behavior to possible marijuana

use, and none testified that their own decisions or actions had in any way been influenced by the

smell. (In fact, the only person who drew a connection between the marijuana smell and

Jackson’s behavior was the prosecutor in closing argument, which we will address.) These

witnesses consistently testified that Jackson was irrational, uncooperative, and agitated, and that

they were not sure why he was behaving the way he did.

¶ 43 The State also argues that the cannabis-smell testimony showed Jackson’s actions were

intentional, not accidental. The State cites People v. Haley, 2011 IL App (1st) 093585, where

the trial court admitted evidence that Haley had pushed a fisherman into Montrose Harbor about

a month before he pushed another fisherman into the same harbor. Id. ¶ 59. We held that this

evidence showed that Haley’s second action was not accidental or a mistake. But here the State

never explained how a smell of cannabis, or cannabis use, could show that Jackson intentionally,

rather than accidentally, kicked Officer Wojcik. Unlike Haley, there is no obvious connection

between the first action (presumably, Jackson using marijuana) and the second action (kicking

Officer Wojcik and resisting arrest). Admission of this evidence was error.

¶ 44 The dissent argues that the smell showed that Jackson’s actions were not accidental or

involuntary. Infra ¶ 92. The dissent does a better job of justifying the use of this evidence than

the State did at trial, where, again, it failed to connect Jackson’s actions to the marijuana smell

through the evidence (instead of speculating during closing argument).

¶ 45 The dissent also argues (based on a hypothetical posed at oral argument) that if Jackson

had smelled of alcohol, rather than marijuana, the evidence might have been admissible. Infra ¶

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93. But again, the State would need to establish its relevance by connecting the alcohol smell to

the rest of the evidence. For example, if the police had conducted a field sobriety test, then the

smell of alcohol would be admissible to explain their course of conduct. Or, if the paramedics

had opined that Jackson seemed drunk, the alcohol smell would have been admissible to justify

their opinions. Here, there was no such evidence, either from the police or the paramedics. They

testified that Jackson smelled of marijuana, but did not testify that this smell affected their

decisions, or suggest that Jackson was high. To repeat, the marijuana smell was irrelevant

because the State failed to establish a connection to the rest of the evidence—the State (and the

dissent) merely assume one.

¶ 46 “Lay Opinion” Testimony from the Paramedics

¶ 47 Jackson contends the trial court erred by admitting the medical opinion testimony of

Piepenerink and Stapleton that Jackson was not having a seizure during the incident. The trial

court did not qualify either paramedic as an expert witness, so Jackson argues they could only

offer lay witness testimony.

¶ 48 Lay witnesses can testify based on a rational perception of what they observed if it is

helpful for the determination of a fact in issue. Ill. R. Evid. 701(a), (b) (eff. Jan. 1, 2011); People

v. Donegan, 2012 IL App (1st) 102325, ¶ 42. For example, a lay witness could describe a car

accident that he or she observed. Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d

217, 222 (1985). But, lay witnesses cannot testify to an opinion based on scientific, technical, or

other specialized knowledge. Ill. R. Evid. 701(c) (eff. Jan. 1. 2011); Donegan, 2012 IL App (1st)

102325, ¶ 42. The purpose of a lay witness is to assist the jury in drawing inferences based on

the testimony. Freeding-Skokie Roll-Off Service, 108 Ill. 2d at 222.

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¶ 49 In some circumstances, a lay witness may offer his or her opinion if the facts cannot

otherwise be adequately presented so that the jury could “form an opinion or reach an intelligent

conclusion” without the witness’s opinion. People v. Novak, 163 Ill. 2d 93, 102 (1994)

(abrogated on other grounds by People v. Kolton, 219 Ill. 2d 353 (2006)). Should a lay witness

offer an opinion, it must be based on his or her personal observations and recollection of

concrete facts, not on specialized knowledge. Id. at 103. When the jury as well as the witness can

draw the inferences and conclusions, then the witness’s opinion is superfluous. For example, a

lay witness could describe a car accident, but not opine as to which driver was negligent in

causing the accident, because the jury could draw its own inferences from the description.

Freeding-Skokie, 108 Ill. 2d at 222-23. The opinion testimony also is improper and prejudicial

when it goes to the ultimate question of fact to be decided by the jury. People v. Brown, 200 Ill.

App. 3d 566, 579 (1990) (holding witness opinion testimony about whether complainant engaged

in forced or consensual sex was improper and prejudicial because it went to ultimate question of

fact).

¶ 50 Expert witnesses differ from lay witnesses—they have experience and qualifications that

afford them knowledge beyond the average citizen that aids the jury in weighing the evidence.

Novak, 163 Ill. 2d at 104. It is within the discretion of the trial court to determine whether a

witness has been qualified as an expert. People v. Jordan, 103 Ill. 2d 192, 208 (1984). The

qualified expert’s opinion must be based on scientific theories that have gained general

acceptance in his or her field. Id. The expert must offer the basis for his or her opinion using a

reasoned analysis, or the testimony is rendered invalid. Lombardo v. Reliance Elevator Co., 315

Ill. App. 3d 111, 123 (2000).

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¶ 51 Piepenerink’s lay opinion testimony was improper under Illinois Rule of Evidence 701,

and he was not properly qualified as an expert witness. See Ill. R. Evid. 702 (eff. Jan. 1, 2011).

Piepenerink testified: “What we have been trained if the patient responds as what we consider,

[postictal]. It’s a medical term where you just — you are slow *** to respond. They are sluggish.

They have no idea where they are at. They can’t answer questions. It’s kind of slow to respond

usually normally.” This testimony went outside of the bounds of Piepenerink’s personal

observations and recollection of the situation. Novak, 163 Ill. 2d at 103; see also Ill. R. Ev. 701

(nonexpert witness must limit testimony to opinions or inferences which are “not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702”). He provided

testimony beyond the common knowledge and experience of a layperson, and offered a

speculative opinion based on specialized knowledge. Novak, 163 Ill. 2d at 103. His recitation of

a technical medical term and its meaning as his basis for determining that Jackson was not

suffering from a seizure is not the type of information a jury member or lay person would

possess. People v. Mertz, 218 Ill. 2d 1, 72 (2006).

¶ 52 Piepenerink was never offered or qualified as an expert on seizures, and only testified to

his education and experience as a paramedic. He did testify that he had encountered people

having seizures, and received training on how people with seizures behave or react, yet provided

insufficient detail on how much training he received on seizures specifically or what the training

involved. Unlike the dissent (infra ¶ 96), we do not believe that Piepenerink met the

qualifications to be admitted as an expert witness in whether Jackson was suffering from a

seizure (though he could have been qualified as an expert in paramedic practice). See Ill. R. Ev.

702. He had training as a paramedic, not in the diagnosis of seizures. (And, though the dissent

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argues that the paramedics could have been qualified as expert witnesses, infra ¶ 96, the State

never made this argument in its brief.)

¶ 53 The same applies to Stapleton who testified to his education, training, and experience as a

paramedic, but did not testify to having any specialized training in seizures. He was not offered

or qualified as an expert. Stapleton testified: “I have seen a lot of people *** having seizures

during and after, and I in my career I have never seen a person after post seizure act the way Mr.

Jackson did that day. The people coming out of the seizures are more confused *** [m]ore

confused, sometime seem a little aggressive. They are scared. They are more confused, but they

just don’t [show] that type of aggression and strength for that matter. Usually when people are

having seizures, all of the energy in their body is pretty well spent from the seizure itself, and

they don’t just physically have the energy to carry on the way Mr. Jackson did that afternoon.”

Like Piepenerink, Stapleton’s opinion testimony depended on specialized knowledge and

training that would not be common knowledge to a layperson. Mertz, 218 Ill. 2d at 72. And, it

was not admissible as expert testimony because Stapleton was not qualified in that area.

¶ 54 As for Stelly, the dissent asks why her opinion (that Jackson looked like he was coming

out of a seizure) was admissible, but Piepenerink’s and Stapleton’s were not. Infra ¶ 97. Stelly’s

opinion was admissible because hers was proper lay opinion testimony under Rule 701. She

relied on her own perceptions and memories of Jackson’s behavior, and her knowledge of his

medical history, but did not purport to rely on any scientific or specialized knowledge gained

through training or education. If Piepenerink and Stapleton had limited their testimony to their

own observations of Jackson’s behavior, it would have been admissible.

¶ 55 The State relies on People v. Botsis, 388 Ill. App. 3d 422 (2009), to argue that the

paramedics should be allowed to offer their opinions on whether a person is not suffering from a

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seizure based on their experience. In Botsis, two lay witnesses testified that after a car crash, the

driver of one car was convulsing and foaming at the mouth, and opined that the driver had been

having a seizure. Id. at 442. The lay witnesses in Botsis did not rely on specialized training or

knowledge, and the court determined such experience was unnecessary because neither witness

was attempting a medical diagnosis. Id. at 443. But see Steele v. Provena Hospitals, 2013 IL

App (3d) 110374, ¶¶ 47-49 (trial court abused discretion in allowing lay witnesses to testify that

patient’s rash “looked like chicken pox,” as testimony was functional equivalent of medical

diagnosis and witnesses were not qualified as experts).

¶ 56 The State argues that the reverse should be allowable, and that laypersons should be able

to opine that a person is not having a seizure. But, this type of opinion would require technical

knowledge and skills beyond that of a layperson. While some symptoms, such as convulsions,

might indicate a seizure, the absence of a seizure cannot be opined with certainty by a layperson

based solely on their observations. The State’s theory would lead us down some ridiculous

paths. For example, under Botsis, a layperson could opine that because John has a bone sticking

out of his leg, John’s leg is broken. As the State would have it, that same lay person could opine

that, since John does not have a bone sticking out of his leg, his leg is not broken— regardless of

what might be going on below the skin’s surface. We decline the State’s invitation to turn lay

people into medical experts based on what is obvious to the naked eye.

¶ 57 As lay witnesses, both Piepenerink and Stapleton could have described their observations

of Jackson without stating their opinions. Their observations were sufficient to allow the jury

members to draw their own conclusions as to whether Jackson was suffering from a seizure.

Freeding-Skokie Roll-Off Service, 108 Ill. 2d at 222. The admission of these lay opinions was

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error because it violated Illinois Rule of Evidence 701 and went to the ultimate question of fact

to be decided by the jury. Brown, 200 Ill. App. 3d at 579.

¶ 58 Prosecutor’s Comments in Closing Argument

¶ 59 First, Jackson argues that the prosecutor improperly commented on his failure to testify at

trial, and tried to shift the burden of proof, when the prosecutor told the jury they “heard four

witnesses from our side. You heard one witness from the defense side. It’s up to you now to

judge the credibility.”

¶ 60 A defendant has the constitutional right not to testify, and therefore a prosecutor cannot

comment on the exercise of that right. People v. Edgecombe, 317 Ill. App. 3d 615, 620 (2000).

The court should consider whether the prosecutor’s comment was “intended or calculated” to

direct the jury’s attention to the defendant’s decision. Id. Here, the prosecutor did not even

mention Jackson, let alone his failure to testify; viewing the prosecutor’s statement as a comment

on Jackson’s failure to testify would require the jury to extrapolate quite a bit. We do not find

error in this comment. Cf. People v. Smith, 402 Ill. App. 3d 538, 542, 544 (2010) (prosecutor

improperly commented on defendant’s failure to testify by saying, “[h]ave you heard any

evidence that he didn’t know” and “[y]ou didn’t hear anything from that witness stand”).

¶ 61 Similarly, the comments did not improperly shift the burden of proof. While the defense

has no obligation to present evidence, the prosecution may comment on evidence that the

defendant does present. People v. Phillips, 127 Ill. 2d 499, 527 (1989). Merely stating that both

sides had presented witnesses, and it was the jury’s job to judge the witnesses’ credibility is an

accurate statement and not improper. Cf. Smith, 402 Ill. App. 3d at 542, 544 (“you didn’t hear

any evidence that he wasn’t trying to kill anyone” improperly shifted burden of proof to

defendant).

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¶ 62 Next, Jackson argues that the prosecutor tried to bolster the credibility of the paramedics

by telling the jury that Jackson could have been charged with battery for biting Stapleton, and

that “those paramedics have nothing to gain in this case.”

¶ 63 Prosecutors may argue the credibility of witnesses. People v. Williams, 2015 IL App

(1st) 122745, ¶ 12. They may not, however, bolster a witness’s credibility with the power of the

prosecutor’s office, as (i) it might give the jury the impression that “secret” evidence, known

only to the State, supports the charge; or, (ii) it might induce jurors to trust the State’s judgment

over their own evaluation of the evidence. Id. ¶ 13. The prosecutor’s comment did not do either;

the prosecutor simply argued that the paramedics did not have a motive to lie. This is slightly

illogical (whether or not the paramedics were the named “victims,” they would not gain in any

material way from a conviction), but not improper argument.

¶ 64 Jackson further argues that the prosecutor’s statement that he could have been charged

with battery on Stapleton was not based on the evidence. But Stapleton did testify that Jackson

bit him on the arm (getting a mouthful of sweatshirt). The comment was proper.

¶ 65 Next, Jackson argues that in rebuttal closing argument, the prosecutor relied on the

erroneously admitted opinion testimony from the paramedics. As explained, this evidence was

not proper lay opinion testimony. The closing argument accurately recounted that “two

paramedics with training and personal experience and professional experience of seizures tell

you that in their opinion, at no point, did they believe that it was a seizure, either before, or

during, or after.” The prosecutor’s rebuttal reference to this testimony exacerbated the prejudicial

impact of its admission, and was error.

¶ 66 Jackson argues that in rebuttal closing argument, the prosecutor improperly relied on the

“cannabis smell” by theorizing that “maybe smoking a lot of cannabis or something else”

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explained Jackson’s behavior, and misstated the evidence by telling the jury that at least three

witnesses testified that Jackson smelled strongly of cannabis. As discussed, the trial court erred

by admitting the cannabis-smell testimony. The prosecutor attempted to connect the cannabis

smell to the alleged crimes, but that theory was based on the most tenuous evidence. None of the

three witnesses testified that Jackson seemed intoxicated by marijuana. On the contrary, they

testified that Jackson’s behavior was “irrational,” but they did not know why. No medical

evidence indicated that marijuana caused, or could cause, Jackson’s behavior.

¶ 67 Further, the prosecutor’s statement that Jackson had used “something else” other than

cannabis was based on no evidence whatsoever. And finally, the prosecutor misstated the

evidence in saying that three witnesses testified that Jackson smelled of marijuana. In fact, only

Piepenerink and Stapleton testified that Jackson smelled of cannabis; Wojcik testified that the

vestibule smelled like cannabis.

¶ 68 At issue was the explanation for Jackson’s behavior: there was no dispute that Jackson

kicked Wojcik and resisted the officers. Throughout, Jackson’s attorney presented the theory

that Jackson’s behavior had actually been caused by a seizure. The prosecutor needed an

alternative explanation that would not undermine Jackson’s legal culpability. The explanation

theorized—that marijuana use caused agitation and violent outbursts—was not based on the

evidence. This was error.

¶ 69 Serious Error

¶ 70 Jackson claims that two of the errors—admission of the other crimes evidence and the

State’s closing argument—are “serious” errors that affected the trial’s fairness and challenged

the integrity of the judicial process. Thompson, 238 Ill. 2d at 613.

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¶ 71 As we have said, other-crimes evidence endangers a fair trial due to the possibility that

the jury might convict a defendant as “a bad person who deserves punishment,” rather than

because the elements of the crime have been proven. Placek, 184 Ill. 2d at 385. In light of this

danger, other courts have held that erroneous admission of other-crimes evidence could

constitute a “serious” error under the plain error doctrine. People v. Jackson, 399 Ill. App. 3d

314, 321 (2010); People v. Norwood, 362 Ill. App. 3d 1121, 1129 (2005). The State argues that

Norwood is unpersuasive in that the Norwood court ultimately did not review the admission of

evidence for plain error. This is because the Norwood court held that the evidence was

admissible, but also stated that “erroneous admission of such other-crimes evidence could

deprive a defendant of a fair trial.” 362 Ill. App. 3d at 1129.

¶ 72 The State argues, relying on People v. Strawbridge, 404 Ill. App. 3d 460, 468 (2010), that

the error cannot possibly be serious enough to meet the second-prong plain error standard as the

admission of other-crimes evidence can be reviewed for harmlessness if the error is properly

preserved. We disagree with Strawbridge, and the State’s analysis. Whether an error is

reviewed under the harmless error doctrine or the plain error doctrine has nothing to do with the

seriousness of the error or the prejudice resulting from it: rather, it is whether the error has been

properly preserved. With the exception of “structural” errors (a limited class), any error, no

matter how serious or trivial, will be reviewed under the harmless error doctrine if it garnered a

contemporaneous objection and inclusion in a posttrial motion. Without that preservation, it will

be reviewed under the plain error doctrine.

¶ 73 The State theorizes that a defendant’s attorney could “sit” on an error and deliberately

leave it unpreserved to avoid harmless-error analysis. Our Supreme Court rejected a similar

concern as “fanciful and denigratory to the defense bar.” Sebby, 2017 IL 119445, ¶ 71. For a

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defense attorney to do so would be a bad strategy, for a defense attorney’s best and earliest

opportunity to avoid prejudice to his or her client involves bringing that error to the trial court’s

attention, in other words, to preserve the error. Further, the defendant is advantaged by

harmless-error analysis, since it is the State’s burden to prove the error harmless beyond a

reasonable doubt. No competent defense attorney would consider deliberately prejudicing his or

her client at trial in the hope that it might later be overturned on appellate review: it would be “a

foolhardy gamble with the defendant’s liberty.” Id.

¶ 74 We find that the admission of the other-crimes evidence to be “serious” error. As

explained, the evidence of the marijuana smell was purely propensity evidence and of little

probative value. Though it had no relevance in explaining Jackson’s behavior in the vestibule,

the prosecutor exaggerated its importance during closing argument by trying to attribute

Jackson’s irrationality to marijuana use. This is precisely the type of situation where evidence

can “overpersuade” the jury and require a new trial. Jackson, 399 Ill. App. 3d at 321-22 (finding

admission of evidence of defendant’s drug use is “serious” under plain error doctrine).

¶ 75 We also must consider whether the prosecutor’s improper comments during closing

argument (regarding the marijuana smell and the opinion testimony) constituted “serious” error.

Some types of closing argument can rise to this level, such as when the prosecutor makes highly

inflammatory comments or misstates the burden of proof. See People v. Johnson, 208 Ill. 2d 53,

84 (2003); People v. Coleman, 158 Ill. 2d 319, 345 (1994). Not all improper argument is

“serious” error under the plain error doctrine. See People v. Adams, 2012 IL 111168, ¶¶ 16, 24

(prosecutor’s comment that police witness would not risk job by planting evidence was

impermissible speculation, but not so serious that it affected fairness of trial). We believe the

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prosecutor’s comments fall into the latter category: improper, but not so serious that they denied

Jackson a fair trial or cast doubt on the reliability of the judicial process.

¶ 76 The Evidence Is Closely Balanced.

¶ 77 Next, we must consider whether the evidence was closely balanced. (Though we have

already found the evidence legally insufficient.) There is no dispute that Jackson’s acts met the

actus reus elements of battery and resisting arrest; the only question is whether he met the mens

rea requirement of “knowingly.” The State argues that this mens rea can be inferred from

Jackson’s acts of kicking and resisting, and the paramedics’ testimony that Jackson was not

having a seizure (which we already have held was inadmissible opinion testimony).

¶ 78 Even if we do not consider Jackson’s trial theory that he was suffering a seizure, there

was substantial evidence indicating that Jackson did not “knowingly” perform those actions.

Notably, this evidence all comes from the testimony of state witnesses, and those four witnesses

all testified, with remarkable consistency, that Jackson was behaving irrationally throughout this

encounter. When the paramedics arrived, Jackson was “nervous,” “upset,” and “agitated,”

suffering from some type of psychological issue and an altered mental state. Though Jackson

had called for an ambulance, he refused to believe that the uniformed paramedics standing before

him were in fact paramedics, and did not recognize the clearly marked ambulance outside the

building—going so far as to call 911 yet again for an ambulance that had already arrived.

Stapleton flatly stated that Jackson’s “mental status was altered” during the encounter.

Piepenerink thought that Jackson was either under the influence of some unknown controlled

substance or was suffering from some type of psychological issue, and consequently Jackson did

not understand what was happening. Officer Piech was told on his arrival that Jackson was

“mentally unstable” and possibly under the influence. Officer Piech, like the paramedics, had

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difficulty communicating with Jackson. By the time Officer Wojcik arrived, Jackson was

screaming and fighting in the vestibule, but even Wojcik recognized Jackson’s behavior as

“irrational.” From all this contradictory evidence, the dissent still concludes that the evidence

supported the inference that Jackson “knowingly” committed the crimes. We disagree.

¶ 79 When error occurs in a close case, we will “err on the side of fairness, so as not to convict

an innocent person.” People v. Herron, 215 Ill. 2d 167, 193 (2005); see also Sebby, 2017 IL

119445, ¶ 78. The State has conceded that Rule 431 was violated; and though “[i]t is not

inevitable that a jury who receives faulty instructions on the Zehr principles is biased ***, it is

possible. And if it is possible, it is also possible that those faulty instructions contributed to the

result.” Sebby, 2017 IL 119445, ¶ 78. We still do not know why Jackson behaved as he did that

night—whether he was under the influence, having a seizure, or suffering from some unknown

psychological issue. The State was required to prove that Jackson acted “knowingly,” and the

evidence was not there. Importantly, several of the errors we have found (the improper

admission of other crimes evidence, the improper lay opinion testimony, and improper closing

argument) directly relate to the State’s attempt to prove Jackson’s mens rea. We will not affirm

a conviction where the State failed to prove Jackson’s mens rea or mental state, based on

inadmissible lay witness opinion testimony.

¶ 80 Since we are reversing Jackson’s convictions, we need not address his arguments that his

trial counsel was ineffective.

¶ 81 Reversed.

¶ 82 JUSTICE MASON, dissenting:

¶ 83 The evidence is undisputed that Jackson kicked Officer Wojcik and resisted Officer

Piech’s efforts to arrest him. The only issue the jury was called on to decide was whether

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Jackson acted knowingly, as the State claimed, or whether his actions were the involuntary result

of a seizure. Jackson never separately claimed in the trial court that he lacked the mental

capacity to act knowingly. Because a rational jury could have concluded that Jackson — who

was conscious and speaking coherently, albeit irrationally, during the episode — acted

knowingly, there was sufficient evidence to sustain his convictions. Therefore, I respectfully

dissent from the majority’s decision to reverse Jackson’s convictions outright.

¶ 84 In reaching the conclusion that the evidence was insufficient to sustain Jackson’s

conviction, the majority sidesteps the issue of whether Jackson was having a seizure and instead

holds that whatever caused Jackson’s behavior—epilepsy, drug intoxication, an undiagnosed

mental illness, or being Tasered—is irrelevant given the State’s failure to prove that Jackson’s

actions were knowing. Specifically, the majority concludes that the testimony from the

responding officers and paramedics that Jackson was “nervous,” “agitated” and “irrational,”

coupled with Jackson’s failure to recognize the ambulance or the paramedics, inexorably leads to

the conclusion that Jackson was not consciously aware of his actions. Supra ¶ 78. In my view,

Jackson’s behavior was not inconsistent with acting knowingly, and the evidence was sufficient

for a reasonable fact finder to conclude that Jackson had the requisite mental state to commit

battery and resist arrest.

¶ 85 As the majority points out, intent is rarely proved by direct evidence, and may be inferred

from the defendant’s actions and the surrounding circumstances. Supra ¶ 24 (citing Phillips, 392

Ill. App. 3d at 259). Here, the unrebutted testimony of all four state witnesses established that

Jackson was wildly swinging his arms and legs in a confined space while in the presence of

uniformed police officers. When Stapleton attempted to assist the officers by holding down

Jackson’s arm, Jackson tried to bite him. Jackson was also speaking in complete sentences such

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as “get away from me,” “they are trying to kill me,” and “somebody help me.” Based on this

evidence, it is reasonable to infer that Jackson was consciously aware that his behavior would

result and was intended to result in physical contact with those officers. This is particularly true

since Jackson kicked Officer Wojcik three to five times in quick succession. The repeated

kicking of a person suggests a deliberate, conscious action, rather than the involuntary

movements of a mentally ill or seizing patient. This is precisely the inference the jury, as the

finder of fact, was entitled to draw.

¶ 86 While Jackson maintains that he presented unrebutted evidence that he was having an

epileptic seizure at the time of his arrest (and so could not have acted knowingly), this is an

overstatement of the record. To be sure, Jackson’s long-time girlfriend testified that Jackson’s

movement of his head from side to side as he was being loaded into the ambulance was

indicative of his behavior when he was going into or coming out of a seizure. However, the

paramedics flatly contradicted her testimony. Both Piepenerink and Stapleton testified that

Jackson’s behavior was not consistent with a patient experiencing a seizure. In particular, they

noted that after a seizure, patients are generally sluggish, confused, and slow to respond.

Jackson, in contrast, was very vocal and exhibited significant strength as paramedics loaded him

into the ambulance and during the trip to the hospital. This conflicting testimony gave rise to a

question of fact, which the jury reasonably resolved in favor of the State. See People v.

Simmons, 2016 IL App (1st) 131300, ¶ 93 (holding that conflict in testimony was the jury’s

responsibility to resolve).

¶ 87 The majority emphasizes Jackson’s irrational behavior in support of its conclusion that no

reasonable fact finder could find that his actions were knowing. Supra ¶ 26. But a defendant’s

irrational behavior does not necessarily indicate that he was not consciously aware of the results

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of his actions. For example, the consumption of drugs or alcohol may cause a defendant to act

irrationally or become agitated, but if that consumption was voluntary, a defendant can still be

criminally responsible for his conduct. See 720 ILCS 5/6-3 (West 2012) (intoxicated person is

criminally responsible for conduct unless the intoxication is involuntary). Likewise, a defendant

who claims to be suffering from a “psychological issue” may be irrational, but he is not

automatically relieved of all criminal responsibility for his actions; he must plead and prove that

he lacked the capacity to appreciate the criminality of his conduct. People v. Burnett, 2016 IL

App (1st) 141033, ¶ 46; see also 720 ILCS 5/6-2(c) (2012) (person who was not insane at the

time offense committed, but was suffering from a mental illness, is not relieved of responsibility

for his conduct, and may be found guilty but mentally ill). Thus, Jackson’s irrationality, standing

alone, does not render the evidence insufficient to sustain his convictions.

¶ 88 Jackson’s defense at trial was that he was having a seizure and, therefore, his actions

were involuntary. This was emphasized both in defense counsel’s opening statement (“We are

talking about a seizure, ladies and gentlemen. If they want to describe that as being out of

control, then so be it, but I submit to you that none of his actions were voluntary.”) and his

closing argument (“If this is movement because of the seizure, if indeed he was having a seizure,

then the movements were [involuntary].”). Jackson’s counsel repeatedly argued that his client’s

actions were not “knowing” because they were involuntary. Through the testimony of four

witnesses present during the encounter, the State sustained its burden to show, beyond a

reasonable doubt, that Jackson’s defense—involuntary contact with the police officers as a result

of a seizure—was not supported by the evidence.

¶ 89 Consistent with his position during trial, Jackson’s posttrial motion specifically argued

that the evidence supported his claim that his movements were involuntary—and thus not

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“knowing”—because they were the result of a seizure. And in this court, Jackson’s briefs do not

refer to a mental illness that rendered him incapable of forming the requisite intent. Like the

defense he advanced at trial, Jackson argues here that he was unable to control his actions

because of a seizure: “[T]he evidence presented at trial demonstrates that Jackson’s conduct was

involuntary, inadvertent or accidental because he was suffering from an epileptic seizure after he

called 911. Thus, he was incapable of controlling his body and his act of kicking was an

involuntary act for which he cannot be held accountable.” (Emphasis added).

¶ 90 Despite the lack of any argument regarding Jackson’s mental capacity advanced in the

trial court or on appeal, the majority reverses Jackson’s conviction outright based on its

conclusion that Jackson suffered from some unidentified mental condition that rendered him

incapable of acting knowingly. But Jackson never requested that the jury be instructed regarding

a verdict of guilty but mentally ill. See Illinois Pattern Jury Instructions, Criminal, No. 24-25.01I

(4th ed. 2000). And there was no testimony at trial that, apart from seizures, Jackson suffered

from any mental illness. Thus, the majority conflates Jackson’s claim that he lacked control over

his bodily movements because of a seizure with a different defense—never raised at trial—that

Jackson lacked the mental capacity to intentionally commit a battery or resist arrest based on his

“irrational” behavior. Because this issue was never raised by Jackson, we should refrain from

addressing it. People v. Givens, 237 Ill. 2d 311, 323 (2010) (“‘a reviewing court should not

normally search the record for unargued and unbriefed reasons to reverse a trial court judgment’”

(emphasis in original) (quoting Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379 (1978))).

¶ 91 I would further find that none of the other trial errors identified by Jackson warrants a

new trial. In the first place, none of the errors Jackson cites—the admission of testimony

regarding (1) the cannabis smell, and (2) opinion testimony from the paramedics that Jackson

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had not had a seizure; prosecutorial misconduct during closing argument; and failure to comply

with Rule 431(b)—was properly preserved. Accordingly, Jackson urges us to review for plain

error and makes a separate claim of ineffective assistance of counsel. I am troubled by the

continued (over)use of these methods to review unpreserved error, as it erodes the proper

deference we owe to trial courts. For example, had it been properly preserved, we would review

the admission of the “other crimes” evidence (i.e. the cannabis smell), as well as the paramedics’

opinion testimony, for an abuse of discretion. See People v. Williams, 238 Ill. 2d 125, 136

(2010); Simmons, 2016 IL App (1st) 131300, ¶ 135. And, as I discuss below, I would be unable

to find an abuse of discretion on either issue. But an assertion of plain error requires us to

undertake what is essentially de novo review of rulings that the trial court was never asked to

make and is better equipped to address. See People v. Downs, 2015 IL 117934, ¶ 15 (in

determining whether an error occurred for purposes of undertaking plain error analysis, standard

of review is de novo). Plain error is “a narrow and limited exception” to procedural forfeiture and

is “not a general saving clause preserving for review all errors affecting substantial rights ***.”

(Internal quotation marks omitted) Herron, 215 Ill. 2d at 177. The habitual use of plain error to

reach forfeited issues contravenes our supreme court’s definition of the doctrine and renders the

exception the rule.

¶ 92 In any event, even under plain error review, I do not believe any of these alleged errors

warrant a new trial. Initially, I find no error in the admission of evidence regarding the cannabis

smell or the paramedics’ testimony that Jackson was not suffering from a seizure. With regard to

the testimony of the two paramedics that Jackson smelled of cannabis, I do not agree that this

was inadmissible “other crimes” evidence. Our supreme court has held that while evidence of

other crimes may not be used to show a defendant’s propensity for criminal conduct, it may be

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used to show that “the act in question was not performed inadvertently, accidently, involuntarily,

or without guilty knowledge.” People v. Wilson, 214 Ill. 2d 127, 136 (2005). The latter was

precisely the purpose of the State’s use of the cannabis evidence here: the State argued that

Jackson’s actions could be attributed to marijuana use and thus were not accidental or

involuntary: “Maybe smoking a lot of cannabis or something else could be the reason why

you’re out of control ***.”

¶ 93 Contrary to the majority, I find an obvious connection between Jackson’s use of

marijuana and his actions of resisting arrest and kicking a police officer. The use of illicit drugs

(or any mind-altering substance) may result in irrational behavior of the type Jackson exhibited.

Indeed, at oral argument, Jackson’s counsel conceded that, had Jackson smelled of alcohol rather

than marijuana, the paramedics could have testified to that fact because that is part of assessing

the patient’s condition. I see no difference between the two scenarios; in either case, the

testimony leads to the inference that Jackson consumed a substance that could have caused his

irrational behavior.

¶ 94 Turning to the paramedics’ testimony that Jackson was not suffering from a seizure, I

disagree with the majority’s characterization of this as improper “lay opinion” testimony. The

majority’s conclusion rests on its belief that the paramedics were lay witnesses rather than

experts, and thus could not offer opinions based on specialized knowledge. Supra ¶¶ 51-53

(citing Ill. Rs. Evid. 701, 702). But our supreme court has held that lay witnesses who offer an

opinion based on specialized knowledge may become expert witnesses once properly qualified.

Novak, 163 Ill. 2d at 104.

¶ 95 In Novak, the State expressly denied at trial that its two rebuttal witnesses were experts

and elicited opinions from them as lay witnesses. Id. at 99. While the supreme court initially

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held that the witnesses’ testimony was inadmissible as lay opinion testimony, it concluded that

the State established the witnesses’ qualifications as experts, and as such, the admission of their

testimony was not error. Id. at 102, 104. In reaching its conclusion, the supreme court

explained:

“An individual will be permitted to testify as an expert if that person’s experience

and qualifications afford him or her knowledge that is not common to laypersons

and where such testimony will aid the fact finder in reaching its conclusion.

[Citation.] The indicia of expertise is not an assigned level of academic

qualifications. Rather, the test is whether the expert has knowledge and

experience beyond the average citizen that would assist the jury in evaluating the

evidence. [Citation.]. The expert may gain his or her knowledge through practical

experience rather than scientific study, training, or research. There is no precise

requirement as to how the expert acquires skill or experience. [Citation.] Id. at

104.

¶ 96 Here, just as in Novak, the State elicited testimony from both Piepenerink and Stapleton

that revealed both had the education and practical experience to allow them to testify as experts.

Piepenerink testified that he was certified as a paramedic after attending paramedic school for

eight to nine months and completing field training, which was conducted in a hospital. He went

on to testify that he received training on how people with seizures “behave or react” and that in

his five years as a paramedic, he had attended to and assisted “a thousand” people having

seizures. Stapleton likewise testified that he had been a licensed paramedic for eight years. His

training consisted of 13 months of classroom work, multiple hours of ER time, and working with

different units of the hospital. Stapleton had seen over 100 people having seizures and emerging

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from them. While neither Piepenerink nor Stapleton had training in the diagnosis of seizures,

both had “knowledge and experience beyond the average citizen” (id.) regarding how seizure

patients behave. Indeed, Stapleton testified that had he believed Jackson was suffering a seizure,

he would not have touched him as paramedics are trained not to attempt to control a patient’s

movements during a seizure. In my view, this testimony was sufficient to render both paramedics

experts in the recognition of symptoms of a seizure, and the trial court did not err in allowing

them to express their opinions.

¶ 97 Again, by invoking plain error and urging de novo review on this issue, Jackson avoids

the hurdle he would have otherwise faced to establish that the trial court abused its discretion in

determining that these witnesses were qualified by training and experience to opine that Jackson

was not suffering from a seizure when he kicked Wocjik and resisted Piech’s efforts to arrest

him. There is no basis to distinguish Stelly’s opinion testimony that Jackson’s head movements

looked like he was either going into or coming out of a seizure—which the majority deems

admissible—from the testimony of trained paramedics that he did not appear to be suffering a

seizure. The jury was entitled to consider all of the opinion testimony in determining whether

Jackson, as he claimed, was suffering from a medical condition that rendered his bodily

movements involuntary.

¶ 98 Jackson’s final allegations of trial error concern the prosecutor’s closing arguments and

the trial court’s questioning of potential jurors. The majority agrees with Jackson that the

prosecutor’s comments during closing regarding the paramedics’ testimony that Jackson was not

suffering from a seizure as well as the reference to the cannabis smell were in error, again based

on its finding that this evidence should not have been admitted. But because I believe that the

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testimony on both issues was properly admitted, I likewise do not find these comments

erroneous.

¶ 99 And with regard to the trial court’s questioning of the jurors during voir dire, while I

agree with the majority that the court erred in failing to strictly comply with Rule 431(b), I do

not agree that this amounted to plain error, as I do not believe the evidence was closely balanced.

The State presented evidence that supported the inference that Jackson’s actions in kicking

Officer Wojcik and resisting arrest were knowing, whereas Jackson’s contention that he was

having a seizure was supported only by the weak testimony of his girlfriend who was not present

at the time of the events. Moreover, Stelly did not know whether Jackson was going into or

coming out of a seizure when she saw him on the stretcher. And if he was going into a seizure at

that time, then his actions in the vestibule (which Stelly did not see) cannot be attributed to that

condition. Under these circumstances, the evidence was not closely balanced so as to require

reversal. See People v. White, 2011 IL 109689, ¶ 139 (undertaking qualitative rather than

“strictly quantitative” “commonsense assessment of the evidence” to determine that the evidence

was not closely balanced).

¶ 100 Finally, I do not join in the majority’s criticism of the law enforcement officers and

prosecutors involved in this case. Although the majority chides the officers for not de-escalating

the situation, my colleagues offer no suggestions as to what the officers should have done.

Certainly, the paramedics and police officers could not simply have left the scene as Jackson

called 911 requesting an ambulance, presumably for a medical emergency. Further, because

Jackson’s aggressive behavior prevented the paramedics from assessing him medically, it was

necessary to subdue him and so police were contacted. And when two uniformed police officers

were unable to handcuff Jackson because he was fighting them, it was reasonable for Piech to

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use his Taser (the first time he had done so in his more than 19-year career) to attempt to get

Jackson under control, ultimately to no avail. Based on my reading of the record, Piech used his

Taser twice, once without darts and once with. Neither had any effect on Jackson, so the

majority’s characterization of Jackson as being “zapped with 50,000 volts” (supra ¶ 3) is

irrelevant. And the jury in this case was instructed, without objection, that the arresting officers

were not required to retreat or desist in an effort to make a lawful arrest because of Jackson’s

efforts to resist and that they were justified in the use of any force reasonably necessary to effect

his arrest and defend themselves from bodily harm. See Illinois Pattern Jury Instructions,

Criminal, No. 24-25.12 (4th ed. 2000). They do not deserve criticism for doing what the law

entitles them to do.

¶ 101 Although the majority likens this case to those involving citizens suffering from mental

illness, there is, as noted, absolutely no evidence in the record that Jackson was mentally ill and

he did not assert any such defense at trial. Thus, I cannot find fault with the officers for their

treatment of an aggressive, irrational individual, nor do I join in my colleagues’ criticism of the

prosecutors involved in this case for pursuing charges against a person who attacked both the

paramedics he called to help him and the officers who responded to the scene.

¶ 102 I would affirm.

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