People v. Jones , 2023 IL 127810 ( 2023 )

2023 IL 127810IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127810)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
TERANZA JONES, Appellant.
Opinion filed January 20, 2023.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, and Cunningham
concurred in the judgment and opinion.
Justices Holder White and O’Brien took no part in the decision.
OPINION
¶1 Following a jury trial, defendant Teranza Jones was convicted of unlawful
possession of ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2018)) and was
sentenced to two years’ imprisonment. Defendant appealed her conviction, arguing
that the State failed to prove her guilty beyond a reasonable doubt. Defendant also
argued she was denied a fair trial, as well as the effective assistance of counsel,
based upon an instruction given to the jury.
¶2 The Appellate Court, Fourth District, affirmed the Macon County circuit court’s
judgment. 2021 IL App (4th) 190751-U. For the following reasons, we affirm the
appellate court.
¶3 BACKGROUND
¶4 Defendant was arrested following a traffic stop on January 1, 2019, and
subsequently was charged with unlawful possession of ammunition by a felon. The
case proceeded to a jury trial. The State presented one witness in its case-in-chief,
Officer Zachary Wakeland. Officer Wakeland testified that he was a patrol officer
with the Decatur Police Department. On January 1, 2019, Officer Wakeland
stopped a vehicle driven by defendant. During the stop, Officer Wakeland searched
defendant’s car and found two rounds of .40-caliber ammunition in the glove
compartment underneath the vehicle’s owner’s manual, in a stack of papers. Officer
Wakeland explained that, when an officer finds ammunition or anything to do with
firearms, the officer checks to see if the person in possession of that ammunition or
firearm has a Firearm Owner’s Identification card (FOID card) or if the person is a
convicted felon. Officer Wakeland told defendant that she was going to be arrested
for possession of the ammunition. Defendant responded that the ammunition
belonged to her husband.
¶5 The State rested its case following the testimony of Officer Wakeland. At the
close of the State’s case, defense counsel moved for a directed verdict, arguing that
the State had not proved the elements necessary for the offense. The trial court
denied defendant’s motion.
¶6 Defendant then testified in her own defense. Defendant acknowledged that she
had a prior felony conviction for identity theft from 2002. On the night she was
stopped, defendant was leaving her uncle’s house and was going around the corner
to another house. While her vehicle was being searched, defendant was placed in
the back of a police vehicle for approximately an hour. When asked about the .40-
caliber ammunition that was found in the vehicle, defendant told the officer that the
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ammunition belonged to her husband. 1 Defendant explained that she knew it was
her husband’s ammunition because they shared a vehicle and because her husband
had guns and a FOID card. If a bullet was found in her vehicle, defendant’s
automatic assumption was that it belonged to her husband. Defendant had no idea
that the ammunition was there before the officer confronted her with it.
¶7 Defendant’s husband, Lee Brown, then testified on defendant’s behalf. Brown
stated that he and defendant had been married for almost 10 years. Brown stated
that the vehicle defendant was driving on January 1, 2019, was registered in her
name only but that he also used the vehicle. Brown drove the vehicle to and from
East St. Louis, where his children lived. Whenever Brown drove to East St. Louis,
he took his firearm with him. When Brown transported his firearm, he put the gun
in its case in the trunk and put the clip, or the ammunition, in the glove
compartment. Brown identified his FOID card, which was introduced into
evidence. Brown also identified the two .40-caliber cartridges as his. Brown
testified that he was home, sleeping, when defendant was pulled over. Defendant
was pulled over to the side of their house, so Brown was awakened by the police
lights and went outside. After an officer put defendant into the squad car, Brown
told the officer that the bullets were his and that he had a FOID card.
¶8 On cross-examination, Brown testified that defendant knew that he transported
a firearm in her car. At the close of Brown’s testimony, the defense rested.
¶9 Following closing arguments, the jury was given its instructions and was sent
back to deliberate. Regarding the charges against defendant, the jury was instructed:
“To sustain the charge of unlawful possession of ammunition by a felon, the
State must prove the following propositions:
First Proposition: That the defendant knowingly possessed firearm
ammunition; and
1
In her testimony and in her brief to this court, defendant describes Lee Brown as her husband.
Brown likewise testified that defendant was his wife. Upon review of the record in this case,
however, it appears that defendant and Brown had been in a relationship for 10 years at the time of
trial but were not married. For purposes of consistency, however, we will describe the relationship
of Brown and defendant as husband and wife.
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Second Proposition: That the defendant had previously been convicted of
the offense of Identity Theft.”
¶ 10 During its deliberation, the jury tendered two questions to the court. Relevant
to the instant case, the jury asked for the definition of “knowingly.” In discussing
the jury’s question with the court, the assistant state’s attorney noted that there was
an Illinois Pattern Jury Instruction (IPI) defining “knowingly,” which was to be
given only if the jury asked. That instruction provides:
“[1] 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 that nature or that those circumstances
exist. Knowledge of a material fact includes awareness of the substantial
probability that the fact exists.
[2] A person [(knows) (acts knowingly with regard to) (acts with knowledge
of)] the result of his conduct when he is consciously aware that that result is
practically certain to be caused by his conduct.
[3] [Conduct performed knowingly or with knowledge is performed
willfully.]” Illinois Pattern Jury Instructions, Criminal, No. 5.01B (approved
Dec. 8, 2011) (hereinafter, IPI Criminal No. 5.01B).
¶ 11 Upon review of IPI Criminal No. 5.01B, the trial court stated that only
paragraph 1 of the instruction would be applicable, because the committee notes to
the instruction stated that paragraph 1 is to be given if the offense is defined in
terms of prohibited conduct. Paragraph 2 is given if the offense is defined in terms
of prohibited result, or both are given if the offense is defined in terms of both
conduct and result. The assistant state’s attorney agreed. Defense counsel
responded, “I understand what the committee is saying, but I think just giving one,
given that last sentence, could—I’d rather give them 1 and 2 personally.” When the
trial court asked defense counsel how the offense was defined in terms of prohibited
conduct, as set forth in paragraph 2, defense counsel responded that defendant
would be in possession of the ammunition. Defense counsel then explained that he
was “just really worried about that last sentence on number 1, the substantial
probability that the fact exists.”
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¶ 12 The trial court agreed with defense counsel’s concerns, stating that its initial
reaction to the jury’s question was that “knowingly has a plain meaning within a
juror or person’s common understanding.” The trial court noted that the committee
comments to the instruction took no position as to whether the instruction should
be routinely given in the absence of a specific jury request. The trial court told
defense counsel that it could see counsel’s concern and that the definition in the
instruction did not make matters any easier.
¶ 13 The assistant state’s attorney stated:
“the last sentence in paragraph 1 is basically saying knew or should have known
which is a recklessness standard in my mind. I’ve never used this instruction
before. I’ve never had it come up, but I—I know what [defense counsel] is
saying is that this recklessness would, I think, be enough to sustain a conviction.
And recklessness is a lower standard than actual knowledge in my opinion. ***
Frankly, I’m fine with just telling the jury that it’s within their common
knowledge and not doing an instruction.”
Defense counsel agreed that he would “rather just have the jury define it for
themselves.” The trial court stated that its inclination was the same as the parties,
that the jury should just rely on the common understanding of the word,
“knowingly.” The parties thus agreed that the trial court’s response to the jury’s
question should be, “[t]he word ‘knowingly’ should be given its plain meaning
within the jury’s common understanding.”
¶ 14 Following deliberations, the jury found defendant guilty of unlawful possession
of ammunition by a felon. Defendant then filed a motion for a new trial, arguing
that the State did not prove its case beyond a reasonable doubt. The trial court
denied defendant’s motion.
¶ 15 At defendant’s sentencing hearing, both the State and defense counsel asked for
the mandatory minimum sentence of two years’ imprisonment. The trial court
sentenced defendant to two years, stating that he wished he could give only
probation.
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¶ 16 Defendant appealed her conviction. 2021 IL App (4th) 190751-U. 2 Defendant
first argued that the State failed to prove her guilty beyond a reasonable doubt. Id.
¶ 28. The appellate court rejected this claim. Id. ¶ 39. Viewing the evidence in the
light most favorable to the State, the appellate court concluded that a rational trier
of fact could find the essential elements of unlawful possession of ammunition by
a felon had been proven beyond a reasonable doubt. Id.
¶ 17 Defendant next argued that she was denied a fair trial and the effective
assistance of counsel when the trial court improperly instructed the jury on the
definition of “knowingly” and when counsel failed to object to the instruction. Id.
¶ 41. The appellate court found that defendant failed to overcome the presumption
that defense counsel’s conduct was sound trial strategy. Id. ¶ 44. The appellate court
further found that the trial court did not err in refusing to tender IPI Criminal No.
5.01B, as that instruction might have prejudiced defendant under the facts of this
case. Id. ¶ 50. Finally, having found no error, the appellate court rejected
defendant’s request to review the alleged instructional error for plain error. Id. ¶ 51.
¶ 18 Defendant filed a petition for leave to appeal the appellate court’s decision to
this court pursuant to Illinois Supreme Court Rule 315 (eff. Oct. 1, 2021). We
allowed defendant’s petition.
¶ 19 ANALYSIS
¶ 20 In this court, defendant again argues that the State failed to prove her guilty
beyond a reasonable doubt. Defendant also argues she was denied a fair trial, as
well as the effective assistance of counsel, when the trial court failed to give the
jury the IPI defining “knowingly.”
¶ 21 In addressing her first issue, defendant argues, as she did in the appellate court,
that the standard of review on her reasonable doubt claim is de novo. Defendant
acknowledges that, generally, the standard of review for a reasonable doubt
challenge is whether, viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found all the essential elements of the crime
2
The appellate court’s opinion was modified upon denial of defendant’s petition for rehearing
to correct some factual errors.
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beyond a reasonable doubt. Defendant claims the facts in this case are undisputed,
however, so de novo review applies. In support, defendant cites In re Ryan B., 212
Ill. 2d 226 (2004), People v. Smith, 191 Ill. 2d 408 (2000), and People v. Howard,
2016 IL App (3d) 130959.
¶ 22 The State responds that de novo review applied in those cases because the issues
involved questions of statutory interpretation, i.e., what facts must be proved to
establish guilt, rather than whether the evidence was sufficient to prove that fact.
This court reviews de novo the construction of a statutory element. People v.
Gonzalez, 239 Ill. 2d 471, 479 (2011). The State argues that de novo review does
not apply in this case because the issue does not involve a question of statutory
interpretation. Rather, the issue in this case presents a material issue of fact—
whether defendant knowingly possessed the ammunition.
¶ 23 We agree with the State that the cases cited by defendant in support of de novo
review are distinguishable. For example, the issue in In re Ryan B. was whether the
undisputed fact that the defendant asked a child to lift up her shirt constituted
enticing, coercing, or persuading for purposes of the sexual exploitation of a minor
statute. In re Ryan B., 212 Ill. 2d at 231. The court looked to the language of the
statute to determine whether asking constituted coercing, enticing, or persuading.
Id. at 232. In doing so, the court applied de novo review. Id. at 231.
¶ 24 Similarly, in Smith, the issue was whether the undisputed facts established that
the defendant committed the offense of armed violence. Smith, 191 Ill. 2d at 411.
The court applied de novo review to determine whether the undisputed fact that the
defendant dropped a gun out of a window before the police entered his apartment
constituted armed violence within the meaning of the statute. Id.¶ 25 The court in Howard also was asked to apply undisputed facts to the relevant
statutory language to determine whether the essential elements of the offense had
been proven. Howard, 2016 IL App (3d) 130959, ¶ 18. The issue in Howard was
whether the undisputed facts were sufficient to prove the defendant guilty of being
present in a school zone as a child sex offender, based upon the definition of
loitering in the statute. Id. ¶ 23. The court thus reviewed the issue de novo. Id. ¶ 18.
¶ 26 Defendant argues that de novo review applies in this case because she does not
contest the credibility of the State’s lone witness, Officer Wakeland. Defendant
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states that there also is no dispute as to any of the facts in this case, including
defendant’s prior felony conviction for identity theft or the fact that two bullets
were found in the glove box of the car defendant was driving. Defendant frames
the issue in this case as whether she had the requisite legal knowledge for purposes
of the statute. According to defendant, because that determination depends solely
upon the application of undisputed facts, that issue should be reviewed de novo.
¶ 27 Contrary to defendant’s characterization of the issue, the question of whether
defendant knowingly possessed the ammunition in this case was a question of fact,
rather than a question of statutory interpretation. Knowledge is the mental element
of the offense of unlawful possession of ammunition by a felon. See People v. Leib,
2022 IL 126645, ¶ 37 (“Knowledge *** is the mental element of an offense ***.”).
This court has long recognized that the question of whether a defendant had
knowledge is “one of fact and is for the jury, or for the court where a jury is
waived.” People v. Embry, 20 Ill. 2d 331, 334 (1960); see also People v. Schmalz,
194 Ill. 2d 75, 81 (2000) (“Whether there is knowledge and whether there is
possession or control are questions of fact to be determined by the trier of fact.”
(citing People v. Galloway, 28 Ill. 2d 355, 358 (1963))). It was within the province
of the jury, then, to determine whether defendant knowingly possessed the
ammunition.
¶ 28 Accordingly, we review defendant’s claim that the State did not prove her guilty
beyond a reasonable doubt under the familiar standard that applies to sufficiency of
the evidence claims. When faced with a challenge to the sufficiency of the evidence,
it is not this court’s function to retry the defendant. Schmalz, 194 Ill. 2d at 80. In
reviewing the sufficiency of the evidence in a criminal case, this court asks whether,
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. People v. Hardman, 2017 IL 121453, ¶ 37. A reviewing court
will not substitute its judgment for that of the trier of fact on questions involving
the weight of the evidence or the credibility of witnesses. Id. All reasonable
inferences from the evidence must be drawn in favor of the State. Id. A criminal
conviction will not be overturned unless the evidence is so unreasonable,
improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s
guilt. Id.-8-
¶ 29 Defendant argues that, even under the reasonable doubt standard, the State did
not prove her guilty. To sustain a conviction for unlawful possession of ammunition
by a felon, the State must prove that (1) the defendant has a prior felony conviction
and (2) the defendant had knowing possession of the ammunition. Defendant
concedes that she had a prior felony conviction and that two bullets were found in
the glove box of her vehicle. Defendant denies that the State proved she knowingly
possessed the ammunition.
¶ 30 Possession may be actual or constructive. People v. Givens, 237 Ill. 2d 311, 335
(2010). In this case, the ammunition was found near defendant, not on her person,
so the State had to show constructive possession of the ammunition. To establish
constructive possession, the State must prove that the defendant knew contraband
was present and that the defendant exercised immediate and exclusive control over
the area where the contraband was found. People v. Wise, 2021 IL 125392, ¶ 28.
Further, proof that a defendant had control over the premises where contraband is
located gives rise to an inference of knowledge and possession of that contraband.
Givens, 237 Ill. 2d at 335. Because knowledge is the mental element of an offense,
it is often proved by circumstantial evidence rather than direct proof. Leib, 2022 IL
126645, ¶ 37.
¶ 31 Defendant argues that she was convicted based solely on the fact that she
correctly guessed that the two bullets belonged to her husband, along with her
husband’s testimony that defendant knew he transported his firearm in her vehicle.
Defendant maintains that this evidence is not sufficient to prove her guilty beyond
a reasonable doubt.
¶ 32 We disagree. As noted, in reviewing the sufficiency of the evidence in a
criminal case, all reasonable inferences must be drawn in favor of the prosecution.
Hardman, 2017 IL 121453, ¶ 37. That standard of review does not allow a
reviewing court to substitute its judgment for that of the trier of fact on questions
involving the weight of the evidence or the credibility of the witnesses. Id. In
weighing the evidence, a trier of fact need not search out all possible explanations
consistent with innocence and raise them to a level of reasonable doubt. Id.¶ 33 We find that a rational trier of fact could have found defendant had control over
the premises where the ammunition was located. The evidence showed that
defendant was the only registered owner of the vehicle. The ammunition was found
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in the glove box of that vehicle when defendant was stopped while driving. Viewing
the evidence in the light most favorable to the State, this evidence was sufficient
for the trier of fact to reasonably infer that defendant had constructive possession
of the ammunition.
¶ 34 We further find that a rational trier of fact could find that defendant had
knowledge of the ammunition. This court has recognized that, where possession
has been shown, an inference of culpable knowledge can be drawn from the
surrounding facts and circumstances. Givens, 237 Ill. 2d at 335.
¶ 35 In this case, when Officer Wakeland told defendant that she was being arrested
for possessing ammunition, defendant responded that the ammunition belonged to
her husband. Defendant’s husband testified that he transported his firearm in
defendant’s vehicle when he drove to visit his children and that defendant knew
that he transported his firearm in her vehicle. Defendant testified and denied that
she knew the ammunition was in the vehicle before the officer confronted her with
it. Defendant further testified that her automatic assumption was that the
ammunition belonged to her husband because he was the one with the guns and a
FOID card.
¶ 36 The evidence concerning defendant’s knowledge, while highly circumstantial,
was not entirely lacking. The credibility of defendant and her husband, and the
weight to be given their testimony, are determinations exclusively within the
province of the trier of fact. We will reverse a criminal conviction only when the
evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable
doubt of the defendant’s guilt. Hardman, 2017 IL 121453, ¶ 37. This standard does
not require a reviewing court to determine whether it would find the defendant
guilty beyond a reasonable doubt, but only whether any rational trier of fact, taking
all the evidence in a light most favorable to the State, could have found the essential
elements of the offense beyond a reasonable doubt.
¶ 37 Applying that standard, we find that a rational trier of fact could find that
defendant knowingly possessed the ammunition. While defendant maintained that
she did not know the ammunition was in the glove box, the trier of fact was not
obligated to accept her testimony. Construing the evidence in this case in a light
most favorable to the prosecution, the trier of fact could infer that defendant did
knowingly possess the ammunition. The appellate court, therefore, did not err in
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finding that the State proved defendant guilty of unlawful possession of
ammunition by a felon beyond a reasonable doubt.
¶ 38 Defendant next argues that she was denied a fair trial and the effective
assistance of counsel when the trial court improperly instructed the jury on the
definition of knowingly. Defendant first contends that the trial court committed
plain error when it failed to give the jury IPI Criminal No. 5.01B in response to the
jury’s question asking for the definition of “knowingly.” Citing People v. Childs,
159 Ill. 2d 217, 228-29 (1994), defendant argues that, when the jury has posed an
explicit question or has requested clarification on a point of law arising from facts
about which there is doubt or confusion, a trial court has a duty to provide an
instruction to the jury.
¶ 39 Defendant did not object to the trial court’s answer to the jury’s question, nor
did defendant raise the issue in a posttrial motion. This court has held that a
“defendant forfeits review of any putative jury instruction error if the defendant
does not object to the instruction or offer an alternative instruction at trial and does
not raise the instruction issue in a posttrial motion.” People v. Herron, 215 Ill. 2d
167, 175 (2005). Defendant does not directly address the forfeiture but asks this
court to review the error as plain error.
¶ 40 The State responds that defendant’s claim is not subject to plain error review
because defendant not only failed to object to the trial court’s answer but
affirmatively acquiesced to that answer.
¶ 41 We agree. In discussing the jury’s question and whether to give the IPI defining
“knowingly,” defense counsel indicated his concern with giving paragraph 1 of the
instruction, the paragraph applicable to defendant’s case. Defense counsel stated
that he was “just really worried about that last sentence on number 1, the substantial
probability that the fact exists.” The trial court and the assistant state’s attorney
agreed with defense counsel’s concerns. The assistant state’s attorney explained
that what defense counsel was saying was that the last sentence of paragraph 1
basically created a reckless standard, which would be enough to sustain a
conviction. The assistant state’s attorney said that in his opinion, recklessness was
a lower standard than actual knowledge. Defense counsel stated that he would
rather have the jury define knowingly for themselves. The trial court and the parties
agreed that the jury should simply be told that the definition of knowingly was the
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jury’s common understanding of the word, rather than the IPI definition of
knowingly. In agreeing to that answer to the jury’s question, defense counsel
invited any error concerning the instruction. See People v. Parker, 223 Ill. 2d 494,
508 (2006) (defendant invited any error concerning jury instructions when he
submitted an instruction and agreed to the giving of another).
¶ 42 Defendant, however, argues that this case is analogous to People v. Johnson,
2013 IL App (2d) 110535, ¶ 73, where the appellate court found that the trial court
committed reversible error in failing to give the jury a precisely tailored version of
the applicable IPI, despite the fact that the prosecutor and defense counsel agreed
to the unmodified instruction. The Johnson defendant was charged in two separate
cases with unlawful possession of a weapon by a felon and with misdemeanor
domestic battery. Id. ¶¶ 4-5. The parties agreed to join the charges for purposes of
a jury trial. Id. ¶ 5. Prior to trial, the State moved to introduce evidence of other
domestic violence incidents. Id. ¶ 7. The trial court ruled that the victim could
testify that defendant had committed domestic violence against her prior to the
charged offense and held that certain threats made by defendant were admissible
for purposes other than to show propensity. Id. ¶¶ 10-11. The parties also stipulated
to defendant’s prior felony conviction but agreed that conviction was inadmissible
for impeachment purposes because it was more than 10 years old. Id. ¶ 12.
¶ 43 During the trial, the trial court did not give limiting instructions when witnesses
testified to uncharged conduct. Id. ¶ 66. The trial court did not instruct the jury
concerning charged and uncharged conduct. Id. The trial court also did not instruct
the jury that defendant’s prior felony conviction was to be considered for the limited
purpose of determining defendant’s guilt or innocence on the unlawful possession
of a weapon by a felon charge only. Id. ¶ 71. At the jury instruction conference, the
trial court suggested that the jury be instructed concerning which statements at trial
went to propensity. Id. ¶ 72. Defense counsel rejected the trial court’s suggestion,
responding that she did not object to the State’s tendered instruction concerning
other crimes evidence, commenting that any change to the instruction would
confuse the jury. Id.
¶ 44 On appeal, the Johnson defendant argued that the trial court erroneously failed
to give limiting instructions when witnesses testified to uncharged conduct. Id.
¶ 66. The appellate court agreed, finding the trial court committed plain error. Id.
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¶ 67. The appellate court concluded that the instructional error was so grave that it
denied defendant a fair trial and undermined the integrity of the judicial process.
Id. ¶ 76.
¶ 45 In so holding, the appellate court rejected the State’s claim that plain error
review was forfeited because defendant invited the error. The appellate court found
that the concerns underlying the invited error rule were not present in the case. Id.
¶ 78. The appellate court explained it was the prosecution that first introduced the
flawed instruction and offered no suggestion for curing the defect, even when
pointed out by the trial court. Id. In addition, although defense counsel persistently
declined the trial court’s attempts to modify the instruction, the appellate court
viewed counsel’s tactics as an attempt to mitigate the jury confusion resulting from
a convoluted instruction, rather than invited error. Id.
¶ 46 Defendant claims that in this case, like Johnson, the trial court committed grave
error when it gave the jury an improper jury instruction on the definition of
“knowingly.” Defendant maintains that the trial court had a duty to give IPI
Criminal No. 5.01B, despite defense counsel’s agreement to not give the jury that
instruction.
¶ 47 We find this case distinguishable from Johnson. The Johnson court found plain
error, and overlooked any invited error, on the basis that the erroneous jury
instruction constituted such a substantial defect that the instruction created a serious
risk that the defendant was incorrectly convicted because the jury did not
understand the applicable law. Id. ¶ 76. That error was compounded by the
erroneous joinder of the unlawful possession of a weapon by a felon case and the
domestic battery case. Id. ¶ 75. The verdict thus was unreliable because the
defendant’s convictions might have been based upon uncharged conduct,
defendant’s threats, and defendant’s prior felony conviction. Id. ¶ 67.
¶ 48 Similar concerns are not present in this case. Defendant points to the first part
of paragraph one, that a person acts knowingly when “he is consciously aware that
his conduct is of that nature or that those circumstances exist.” IPI Criminal No.
5.01B. Defendant claims that a proper jury instruction, containing the “consciously
aware” language, would have helped the jury acquit her. Defendant, however, does
not address the last sentence of the first paragraph, which states that knowledge
includes awareness of the substantial probability that the fact exists. Id. This was
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the portion of the instruction that worried the parties and the trial court. In fact, as
the prosecutor pointed out, the IPI definition of “knowingly” in paragraph 1 likely
would have been enough to sustain a conviction, as the definition suggested a
reckless standard of proof. Considering Brown’s testimony that defendant knew he
transported his firearm in her vehicle, it is likely that the jury would have found
defendant had an awareness of the substantial probability that there were two
bullets in her glove box.
¶ 49 Under the circumstances, it was in defendant’s interest to instruct the jury to
use their common understanding of the word “knowingly” rather than give IPI
Criminal No. 5.01B. The trial court’s failure to give the jury IPI Criminal No. 5.01B
was not a grave error that prejudiced defendant’s right to a fair trial and undermined
the integrity of the judicial process. The trial court, therefore, did not commit plain
error when it declined to give the jury IPI Criminal No. 5.01B.
¶ 50 Defendant also argues that she was deprived of her right to the effective
assistance of counsel when defense counsel failed to insist that the jury be given
IPI Criminal 5.01B.
¶ 51 The familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984)
applies to claims of ineffective assistance of counsel. A defendant must show that
his counsel’s performance fell below an objective standard of reasonableness and
that there is a reasonable probability that the result of the proceeding would have
been different but for counsel’s unprofessional errors. Id. at 694. Matters of trial
strategy are generally immune from ineffective assistance of counsel claims.
People v. Manning, 241 Ill. 2d 319, 327 (2011).
¶ 52 Defendant denies that defense counsel’s actions were trial strategy. Defendant
suggests that defense counsel’s conduct concerning the jury instruction was based
upon a mistake of law, rather than trial strategy. In support, defendant notes that
defense counsel stated that he wanted to include paragraph 2 of IPI Criminal No.
5.01B in the jury instruction, even though that paragraph did not apply to
defendant’s case. Defendant also asserts that defense counsel never gave a clear
reason for his concern about the language in paragraph 1 of IPI Criminal No. 5.01B.
¶ 53 We disagree with defendant’s characterization of defense counsel’s actions.
Taken in context, it is clear that defense counsel was concerned with the last line of
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paragraph 1 of IPI Criminal No. 5.01B, that “[k]knowledge of a material fact
includes awareness of the substantial probability that the fact exists.” In response
to the trial court’s statement that only paragraph 1 of the instruction would apply,
defense counsel responded that he thought that “just giving one, given that last
sentence, could—I’d rather give them 1 and 2 personally.” Further, when the trial
court asked defense counsel how the offense was defined in terms of a prohibited
result for purposes of paragraph 2, defense counsel said that defendant would be in
possession of the ammunition but explained that he was “just really worried about
that last sentence on number 1, the substantial probability that the fact exists.” Both
the prosecutor and the trial court agreed with defense counsel’s concerns. When the
prosecutor stated that he would be fine with not providing an instruction, defense
counsel agreed, saying that he would rather have the jurors define “knowingly” for
themselves.
¶ 54 It is clear from the exchange between defense counsel, the prosecutor, and the
trial court that the language of IPI Criminal No. 5.01B was potentially harmful to
defendant’s case. Defense counsel’s reason for including paragraph 2 of IPI
Criminal No. 5.01B was not due to confusion but rather to lessen the impact of the
second sentence of paragraph 1. Defense counsel’s concerns were well placed, as
the evidence that defendant knew her husband transported his firearm in her vehicle
was sufficient to support a finding that defendant had an “awareness of the
substantial probability” that there would be ammunition in her glove box. Given
that evidence, defense counsel chose, as a matter of trial strategy, not to give the
jury IPI Criminal No. 5.01B.
¶ 55 Defendant, however, claims that this case is analogous to the decisions in
People v. Lowry, 354 Ill. App. 3d 760 (2004), People v. Sperry, 2020 IL App (2d)
180296, and People v. Ayala, 2022 IL App (1st) 192063-U. Defendant claims those
cases support a finding that defense counsel’s failure to request that the trial court
instruct the jury on IPI Criminal No. 5.01B amounted to ineffective assistance.
¶ 56 We disagree. In Lowry, the defendant was charged with aggravated battery with
a firearm, as well as attempted first degree murder and armed robbery. Lowry, 354
Ill. App. 3d at 761. During deliberations, the jury sent a note to the trial court asking
if “knowingly” implied that “ ‘it wasn’t an accident, or can it be accidental and
knowing?’ ” Id. at 762. Defense counsel agreed with the State and the trial court to
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simply respond by telling the jury to keep deliberating. Id. at 763. The appellate
court found defense counsel’s failure to offer IPI Criminal No. 5.01B was not trial
strategy but, rather, reflected counsel’s confusion regarding the jury’s question. Id.
at 767. The record showed that defense counsel believed the jury’s question
concerned the intent element of the attempted murder charge against defendant,
rather than the jury’s confusion over the “knowingly” element of the aggravated
battery charge. Id. The appellate court found that defense counsel provided
deficient representation by failing to answer the jury’s question. Id. In addition, the
error was not harmless beyond a reasonable doubt, because the issue of whether the
shooting was committed knowingly or accidentally was critical to the aggravated
battery charge. Id. at 768.
¶ 57 Here, in contrast, despite defendant’s attempt to portray defense counsel as
confused concerning the proper definition of “knowingly,” it is clear that defense
counsel was concerned about the instruction’s definition of “knowingly” and
wished to limit the impact of the definition by presenting the jury with paragraphs
1 and 2 from the instruction. Moreover, the jury in this case was given an instruction
that “knowingly has a plain meaning within a juror or person’s common
understanding.” The Lowry jury was given no instruction and instead was told to
simply keep deliberating.
¶ 58 The decision in Sperry, 2020 IL App (2d) 180296, is similarly distinguishable.
There, the defendant was charged with aggravated battery based on the use of a
firearm. Id. ¶ 3. The trial jury was instructed that it had to find that the defendant
knowingly discharged a firearm in order to find the defendant guilty of that charge.
Id. ¶ 7. During deliberations, the jury sent a note asking whether “knowingly
discharged a firearm” meant that the defendant “ ‘intended to discharge the gun on
purpose or he knew a gun was discharged?’ ” Id. ¶ 8. The trial court and the parties
decided not to give IPI Criminal No. 5.01B and instead agreed to respond that the
trial court was not giving any further instructions and that the instructions the jury
received were sufficient. Id.
¶ 59 The appellate court found that the defense counsel’s performance was deficient
and prejudiced the defendant. Id. ¶ 18. The appellate court stated that IPI Criminal
No. 5.01B would have eliminated the jury’s confusion over whether it could convict
the defendant of aggravated battery, even though it found that the defendant’s
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weapon discharged accidentally. Id. ¶ 21. Under the circumstances, the appellate
court held that defense counsel’s actions could not be considered trial strategy. Id.
Further, those actions prejudiced the defendant, requiring the appellate court to
reverse and remand the case for a new trial. Id.
¶ 60 Here, in contrast, it was probable that giving IPI Criminal No. 5.01B would
have increased the likelihood that defendant would be convicted, rather than
reduced that likelihood. Further, as previously noted, the jury in this case was given
an instruction on “knowingly,” albeit not the IPI Criminal No. 5.01B instruction,
while the jury in Sperry was given no instruction.
¶ 61 The court in Ayala relied upon Lowry and Sperry to find that defense counsel
committed reversible error in failing to offer IPI Criminal No. 5.01B in response to
a question from the trial jury. 2022 IL App (1st) 192063-U. The defendant was
charged with unlawful use of a weapon by a felon. During deliberations, the trial
jury sent the trial court a note stating, “ ‘[D]efine knowingly possessed. Does this
mean he was aware that those items were in his possession?’ (Emphasis in
original.)” Id. ¶ 9. Neither the State nor defense counsel suggested the use of IPI
Criminal No. 5.01B. Id. The trial court instructed the jury that it had all the evidence
and all the instructions and to “ ‘[p]lease continue to deliberate.’ ” Id.
¶ 62 The Ayala court found no significant difference between the case before it and
the decisions in Lowry and Sperry. Id. ¶ 25. The court stated that it did not see any
strategic purpose for failing to request the instruction and therefore reversed the
defendant’s conviction and remanded for a new trial. Id.
¶ 63 As discussed, we find significant differences between the instant case and the
decisions in Lowry and Sperry. Consequently, we reject defendant’s claim that this
case is analogous to Ayala. Defense counsel’s actions in this case, in contrast to the
preceding cases, established that defense counsel’s decision not to instruct the jury
on IPI Criminal No. 5.01B was a matter of trial strategy. The decisions in Lowry,
Sperry, and Ayala are distinguishable and do not support defendant’s claim that she
received ineffective assistance of trial counsel.
¶ 64 In so holding, we find that this case is analogous to the appellate court’s
decision in People v. Mims, 403 Ill. App. 3d 884 (2010). The defendant in Mims
was charged with aggravated criminal sexual assault, as well as aggravated
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kidnapping and aggravated robbery. Id. at 885. The defense counsel presented a
theory of consent as a defense. On appeal following his conviction, defendant
argued that his defense counsel was ineffective for failing to request a jury
instruction on the defense of consent, arguing that, without the instruction, the jury
was given no legal basis upon which to acquit him. Id. at 890.
¶ 65 During the jury instruction conference, the trial court raised the jury instruction
defining consent. Id. at 891. The jury instruction concerning consent, Illinois
Pattern Jury Instructions, Criminal, No. 11.63 (4th ed. 2000) (hereinafter IPI
Criminal 4th No. 11.63), stated that “It is a defense to the charge of ______ that
_______ consented.” The committee note to IPI Criminal 4th No. 11.63 advised
that the definition of consent (IPI Criminal 4th No. 11.63A) is to be given with the
consent instruction. IPI Criminal 4th No. 11.63A stated that the word “consent”
meant a “freely given agreement to the act of [(sexual penetration) (sexual
conduct)] in question.” The second sentence of the instruction, however, stated that
“[l]ack of verbal or physical resistance or submission by the victim resulting from
the use of force or threat of force by the defendant [or the victim’s manner of dress]
shall not constitute consent.” Id.
¶ 66 At the jury instruction conference, defense counsel indicated he was not asking
for IPI Criminal 4th No. 11.63, explaining that, given the way the case had gone,
he did not believe the instruction helped his case. Mims, 403 Ill. App. 3d at 891.
The trial court agreed, stating that further definition of consent would, in fact, assist
the State. Id. The appellate court found that defense counsel made a reasonable
tactical decision not to instruct the jury on the definition of consent, as the second
sentence of the instruction undermined the defendant’s defense. Id. at 893. The
appellate court concluded that defense counsel’s strategy was reasonable given the
State’s evidence. Id. The appellate court declined to find defense counsel’s
performance to be deficient in hindsight. Id.
¶ 67 Here too, we find defense counsel’s strategy was reasonable given the wording
of the last sentence of paragraph 1 of IPI Criminal No. 5.01B. Defense counsel
made a tactical decision that the jury’s common understanding of the word
“knowingly” would encompass a higher standard of proof than an “awareness of
the substantial probability that the fact exists.” Like the Mims court, we will not
now second-guess counsel’s strategic decision. Defense counsel’s actions were not
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objectively unreasonable. Under the facts of this case, we find that defendant cannot
show that she received ineffective assistance of counsel. We therefore find that the
appellate court properly affirmed the trial court’s judgment.
¶ 68 CONCLUSION
¶ 69 For all the foregoing reasons, we affirm the appellate court’s judgment, which
affirmed defendant’s conviction and sentence.
¶ 70 Affirmed.
¶ 71 JUSTICES HOLDER WHITE and O’BRIEN took no part in the consideration
or decision of this case.
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