People v. Messenger

2015 IL App (3d) 130581
Opinion filed September 1, 2015
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Whiteside County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-13-0581
v. ) Circuit No. 13-CF-32
)
JOSHUA E. MESSENGER, )
) Honorable John L. Hauptman,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justice O'Brien concurred with the judgment and opinion.
Justice Carter specially concurred, with opinion.
OPINION
¶1 A Whiteside County jury convicted defendant, Joshua Messenger, of aggravated battery
(720 ILCS 5/12-3.05(c) (West 2012)). The trial court later sentenced him to 10 years in prison.
Defendant does not dispute that the State’s evidence was sufficient to prove beyond a reasonable
doubt that he committed a battery. The sole overarching issue before us is whether defendant
was properly convicted of aggravated battery on the theory that the area inside the Whiteside
County jail—where defendant committed the battery at issue—was “public property” within the
meaning of section 12-3.05(c) of the Criminal Code of 2012. Id.
¶2 Defendant appeals, arguing that: (1) the State failed to prove him guilty of aggravated
battery; (2) the trial court erred by taking judicial notice that a cell block in a county jail is public
property; and (3) the trial court erred when it instructed the jury. We affirm the trial court’s
ruling.
¶3 BACKGROUND
¶4 In January 2013, the State charged defendant with aggravated battery. The State alleged
that defendant’s battery of another inmate, while they were both incarcerated at the Whiteside
County jail, constituted aggravated battery because the jail is “public property” as contemplated
by section 12-3.05(c) of the Criminal Code. Id. At trial, defendant argued: (1) the victim
consented to the contact and therefore the battery was not insulting or provoking; and (2) the jail
is inaccessible to the public and thus, not “public property” under the aggravated battery statute.
¶5 Before trial, the State filed a motion, requesting the trial court take judicial notice that the
Whiteside County jail is public property. During trial, but outside the presence of the jury, the
State presented evidence that Whiteside County owns the entire jail complex. Defendant
objected, stating that judicial notice of this fact directed the jury to a “factual finding.” The court
disagreed with defendant’s position and granted the State’s motion. In so doing, the trial court
noted, “the plain and ordinary meaning of public property is property owned by the
government.” At trial, the court informed the jury that it “can take judicial notice of certain facts
that are, cannot be in legitimate dispute. I have taken judicial notice of the following fact, that
the Whiteside County Jail is public property.”
¶6 Following the presentation of evidence, which included video footage of the defendant
battering the victim inside a jail, a jury instructions conference was held. The State proposed a
jury instruction stating:
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“The entire county jail is public property. The definition of public
property does not require that the property be an area open or
accessible to the public.”
Defendant renewed his objection that the jail was not public property for purposes of the
aggravated battery statute. The trial court disagreed, allowing the instruction and subsequently
informing the jury that judicially-noticed facts are not necessarily conclusive. Following closing
arguments, the jury convicted defendant of aggravated battery. Id. The trial court later
sentenced him to 10 years in prison.
¶7 This appeal followed.
¶8 ANALYSIS
¶9 I. Defendant’s Failure of Proof Claim
¶ 10 Defendant argues the trial court failed to prove him guilty of aggravated battery.
Specifically, defendant asserts that a cellblock in a county jail, which is generally inaccessible to
the public, is not “public property” under the statute. Defendant contends the trial court relied on
an outlier case (People v. Hill) when deciding to take judicial notice that the Whiteside County
jail is public property. People v. Hill, 409 Ill. App. 3d 451, 454 (2011). In support of this
argument, defendant further asserts that being open and accessible to the public is the pivotal
factor in defining public property. Thus, concluding that any other criteria used to define public
property is based on a rationale inherently at odds with the Illinois courts’ long-held belief that
the purpose of the aggravated battery statute is to protect the community.
¶ 11 A. The Standard of Review
¶ 12 When reviewing a question of statutory interpretation, we apply a de novo standard of
review. In re Jerome S., 2012 IL App (4th) 100862, ¶ 9.
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¶ 13 B. Public Property under the Aggravated Battery Statute
¶ 14 Under Illinois’s aggravated battery statute, the offense of battery can be aggravated based
on the location of the incident:
“A person commits aggravated battery when, in committing a
battery, other than by the discharge of a firearm, he or she is or the
person battered is on or about a public way, public property, a
public place of accommodation or amusement, a sports venue, or a
domestic violence shelter.” 720 ILCS 5/12-3.05(c) (West 2012).
The term “public property” and the others that appear with it are not defined by the statute.
¶ 15 The primary goal of statutory interpretation is to determine and effectuate the intent of
the legislature. People v. Amigon, 239 Ill. 2d 71, 84 (2010). “The most reliable means of
accomplishing that goal is to apply the plain and ordinary meaning of the statutory language.”
Id. at 84-85. “Where the language is plain and unambiguous we must apply the statute without
resort to further aids of statutory construction.” People v. Collins, 214 Ill. 2d 206, 214 (2005).
¶ 16 The defendant in this case battered a fellow inmate while they were in a common area for
inmates. At the prosecution’s request, the trial court deemed the county jail “public property”
via judicial notice. Defense counsel objected, arguing that areas must be accessible to the public
in order to be deemed public property. The trial court agreed with the State and took judicial
notice.
¶ 17 We find that under section 12-3.05(c) of the Criminal Code, the place where a battery
occurred can be a “public place of accommodation” or “public property.” The categories listed
in the statute are not necessarily mutually exclusive. “The word ‘or’ is a disjunctive
conjunction.” Central Mortgage Co. v. Kamarauli, 2012 IL App (1st) 112353, ¶ 18. Use of the
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word “or” in the statutory language indicates a list of alternatives, each of which requires
separate treatment. In re E.B., 231 Ill. 2d 459, 468 (2008).
¶ 18 Defendant relies on People v. Kamp, 131 Ill. App. 3d 989 (1985), and People v. Ward, 95
Ill. App. 3d 283 (1981), in arguing otherwise. These cases do not persuade us. Initially, we note
that Kamp is distinguishable from the case at bar on its face. The defendant’s argument in Kamp
is that the State failed to prove him guilty of aggravated battery when it only proved the incident
occurred in an area accessible to the public, a park. Kamp, 131 Ill. App. 3d at 993. The
defendant in this case is arguing the reverse: the State failed to prove him guilty of aggravated
battery when it only proved the incident occurred in an area owned by the government, a jail.
¶ 19 The Kamp court found public accessibility sufficient to support a charge of felony murder
where the underlying felony—an aggravated battery—occurred in a public park. Id. The Kamp
court’s finding that a park is public property without evidence at trial of government ownership
does not exclude courts from finding that an area is public property based solely on proof that it
is government owned. The State in Kamp established at trial that the park where the defendant
battered the victim was accessible to the public, proving the defendant guilty of aggravated
battery. The trial and appellate courts did not find it necessary for the State to further prove the
park was government owned in order to sustain the defendant’s conviction. Kamp does not
address the issue of whether the State can prove property is public in nature by establishing that
it is government owned.
¶ 20 Defense counsel in this case claims that government ownership is irrelevant in
determining whether property is “public” under the aggravated battery statute. This is based
upon a misreading of applicable case law. In support of his argument, defendant focuses on the
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Ward court’s use of the term irrelevant. Ward, 95 Ill. App. 3d at 287-88. The Kamp court
further highlighted the Ward court’s use of the term:
“Whether the property was actually publicly owned and, therefore,
public property rather than a privately owned public place of
accommodation is irrelevant; what is significant is that the alleged
offense occurred in an area accessible to the public.” (Emphasis
added.) (Internal quotation marks omitted.) Kamp, 131 Ill. App.
3d at 993 (quoting Ward, 95 Ill. App. 3d at 287-88).
¶ 21 The Ward court defined “public property” as government owned and then went on to
declare that ownership was an extraneous matter to their case. This commentary was not a
universal declaration. The State in Ward had initially argued the battery, which occurred in a
hotel parking lot, had occurred “ ‘about public property.’ ” Ward, 95 Ill. App. 3d at 286. The
trial court later declared the battery had actually occurred “ ‘about a public place of
accommodation’ ” and the indictment was subsequently amended. Id. at 286-87. To the extent
the Kamp and Ward courts characterize ownership as irrelevant, these discussions were in the
context that public property, for purposes of the statute, need not necessarily be publicly owned.
¶ 22 Public property need not necessarily be accessible to the general public in order to be
defined as such. “Nothing indicates the General Assembly meant for the plain and ordinary
meaning of ‘public property’ to be anything other than government-owned property. Moreover,
the county jail is property used for the public purpose of housing inmates.” Hill, 409 Ill. App. 3d
at 455. Likewise, one temporarily detained in a county jail is still a citizen and member of the
community. We cannot believe that the General Assembly meant to discourage attacks on
people in the courthouse, but not in the jail.
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¶ 23 Here, as in Hill, the county jail where the incident occurred was owned by the
government and therefore considered public property. The State presented evidence that
defendant battered someone in a jail owned by a government entity. Therefore, as a matter of
statutory interpretation, the battery clearly falls within the aggravated battery statute.
¶ 24 II. Judicial Notice of an Element of the Offense
¶ 25 Next, defendant argues the court erroneously took judicial notice of an essential element
of aggravated battery. Specifically, defendant contends that the State was unjustly relieved of its
burden of proving he battered the victim on public property when the trial court took judicial
notice that the Whiteside County jail is public property. Again, we disagree.
¶ 26 A. The Standard of Review
¶ 27 As an evidentiary matter, judicial notice is reviewed for abuse of discretion. In re A.B.,
308 Ill. App. 3d 227, 234 (1999); In re J.G., 298 Ill. App. 3d 617, 627 (1998). “We review the
trial court’s ruling on an evidentiary matter, including judicial notice, by applying an abuse of
discretion standard.” In re S.M., 2015 IL App (3d) 140687, ¶ 13.
¶ 28 B. Judicial Notice
¶ 29 Under Rule 201 of the Illinois Rules of Evidence, a trial court must take judicial notice of
an adjudicative fact when a party requests it to do so and provides the necessary supporting
information. Ill. R. Evid. 201(d) (eff. Jan. 1, 2011). The extension of the judicial notice doctrine
to include “facts which, while not generally known, are readily verifiable from sources of
indisputable accuracy is an important aid in the efficient disposition of litigation, and its use,
where appropriate, is to be commended.” People v. Davis, 65 Ill. 2d 157, 165 (1976).
Furthermore, “[a] court may take judicial notice of a fact even if it constitutes an element of the
offense.” Hill, 409 Ill. App. 3d at 456 (citing People v. White, 311 Ill. App. 3d 374, 380 (2000)).
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¶ 30 The due process clause of the fifth amendment and the notice and jury trial guarantees of
the sixth amendment require “any fact (other than prior conviction) that increases the maximum
penalty for a crime [to] be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Jones v. United States, 526 U.S. 227, 243, n.6 (1999). By way of the
fourteenth amendment, the same is true for cases involving state statutes. Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000). In criminal cases, judicially-noticed facts are in the province
of the jury, preserving a criminal defendant’s right to a jury trial. U.S. Const., amend. VI; Ill.
Const. 1970, art. I, § § 8, 13; People v. Love, 2013 IL App (3d) 120113, ¶ 26. Taking judicial
notice of an element of an offense does not contradict Apprendi and its progeny. Compliance
with Rule 201(g) (Ill. R. Evid. 201(g) (eff. Jan. 1, 2011)) ensures that judicial notice in criminal
cases is merely another form of proof for the jury to accept or reject. United States v. Chapel, 41
F.3d 1338, 1342-43 (9th Cir. 1994).
¶ 31 The trial court in this case was asked to take judicial notice of a fact and provided with
the necessary supporting information. The record is clear on the following facts. Outside the
presence of the jury, Whiteside County jail correctional officer Corporal John Willhite testified
that Whiteside County owns the entire jail complex, including the area where defendant
committed the battery. Defense counsel further solicited from Corporal Willhite that the area
where defendant committed the battery was not open or accessible to the public. The trial court
informed the parties that it would take judicial notice that the Whiteside County jail is public
property. Defendant objected on the grounds that government ownership does not equate to
public property. The trial court later informed the jury that it had taken judicial notice that the
Whiteside County jail is public property and that judicially-noticed facts are not conclusive facts.
In other words, the jury was free to disregard the judicially-noticed fact.
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¶ 32 On appeal, defendant argues the status of a county jail as public property under the
aggravated battery statute is subject to legitimate dispute. Defendant alleges there is a split
among the appellate courts as to the definition of public property in this context. As previously
discussed, we disagree. This court has found no decision that characterizes a county jail as
anything other than public property. We see no reason to rule that a county jail is not public
property under the aggravated battery statute or that it is, per se, an issue subject to reasonable
dispute.
¶ 33 We note that defendant also implies on appeal that taking judicial notice of an element of
an offense is erroneous. The Illinois courts, however, have regularly sanctioned the use of
judicial notice to establish an element of the offense. Davis, 65 Ill. 2d at 165; People v. Scott,
278 Ill. App. 3d 468, 475 (1996); White, 311 Ill. App. 3d at 380; Hill, 409 Ill. App. 3d at 456.
We reiterate the Davis court’s expansion of judicial notice for this purpose, as discussed in
White:
“The quoted principle in Davis that ‘the extension of the doctrine
of judicial notice to include facts *** readily verifiable from
sources of indisputable accuracy is an important aid in the efficient
disposition of litigation’ [citation] applies with equal force
regardless of the standard of proof required. Neither the Davis nor
Scott court conditioned their sanction of the use of judicial notice
upon the level of proof required.” White, 311 Ill. App. 3d at 380.
¶ 34 III. Jury Instruction
¶ 35 Last, defendant argues the trial court’s jury instruction that the Whiteside County jail is
public property was improper. Defendant asserts the trial court’s reliance on Hill renders the
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instruction an inaccurate statement of the law. Having disposed of this issue previously, we will
not address it further.
¶ 36 Defendant also points out, however, that the instruction failed to inform the jury this was
a judicially-noticed fact, which it was not required to accept as conclusive. Defendant argues
this created an unconstitutional mandatory conclusive presumption. Without citing Apprendi,
defendant argues the instruction did not allow the jury to decide the battery occurred on public
property, denying the defendant his due process rights. Apprendi v. New Jersey, 530 U.S. 466
(2000). In response, the State counters that the trial court remedied any problem with the
constitutionality of the jury instruction by orally admonishing the jury that it need not accept
judicially-noticed facts as conclusive. We find the instruction erroneous, but an error that was
ultimately harmless.
¶ 37 A. The Standard of Review
¶ 38 “Generally, an issue concerning the propriety of a jury instruction is reviewed under an
abuse of discretion standard; however, review is de novo when the issue is whether the
applicable law was correctly conveyed in the jury instruction.” People v. Franklin, 2012 IL App
(3d) 100618, ¶ 21 (citing People v. Turman, 2011 IL App (1st) 091019, ¶ 18).
¶ 39 B. The Jury Instruction
¶ 40 During a jury instructions conference in this case, the State proposed a non-Illinois
Pattern Jury Instruction which was later provided to the jury. The instruction stated as follows:
“The entire county jail is public property. The definition of public
property does not require that the property be an area open or
accessible to the public.”
The court gave the instruction over defendant’s objection.
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¶ 41 The trial court converted a judicially-noticed fact into an instruction and submitted it to
the jury without including the Illinois Rules of Evidence Rule 201(g) caveat language; ceasing to
remind the jury that they need not accept that fact as conclusive. The jury instruction removed
an element of the offense from the hands of the jury. This was a clear violation of Apprendi.
And under Illinois law, all mandatory presumptions are per se unconstitutional. People v.
Pomykala, 203 Ill. 2d 198, 203-04 (2003). The erroneous instruction in this case, however, is not
akin to an unconstitutional directed verdict.
¶ 42 Apprendi clearly states that, except for the fact of a prior conviction, “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); People v. Swift, 202 Ill. 2d 378, 392 (2002). The Supreme Court applies harmless-error
analysis to cases involving improper instructions on a single element of an offense. See, e.g.,
Carella v. California, 491 U.S. 263, 266 (1989) (per curiam) (applied to a mandatory conclusive
presumption); Pope v. Illinois, 481 U.S. 497, 502-03 (1987) (applied to a misstated element of
the offense). Illinois courts apply harmless-error review when a defendant has timely objected to
an Apprendi error and plain error when the issue was forfeited. See People v. Thurow, 203 Ill.
2d 352, 363 (2003); People v. Crespo, 203 Ill. 2d 335, 347 (2001); People v. Kaczmarek, 207 Ill.
2d 288, 302 (2003); People v. Nitz, 219 Ill. 2d 400, 414 (2006). Accordingly, we apply harmless
error in this case since the defendant objected to the instruction at trial.
¶ 43 Thurow and its progeny have established that an appellate court reviewing an Apprendi
error must examine the evidence and determine what a rational jury would have found. Thurow,
203 Ill. 2d at 368-69. In contrast to structural errors, “instructional errors are deemed harmless if
it is demonstrated that the result of the trial would not have been different had the jury been
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properly instructed.” People v. Washington, 2012 IL 110283, ¶ 60 (citing Pomykala, 203 Ill. 2d
at 210).
¶ 44 In spite of the constitutional violation that stems from the jury instruction at issue in this
case, the defendant is not entitled to a retrial. The Illinois supreme court has ruled that an
Apprendi violation is not automatic grounds for reversal. Kaczmarek, 207 Ill. 2d 288; Thurow,
203 Ill. 2d at 371-72; Nitz, 219 Ill. 2d 400; People v. Rivera, 227 Ill. 2d 1 (2007). The
instruction at issue is contradictory, in so far as it conflicts with the trial court’s earlier oral
instruction to the jury that it need not necessarily conclude the jail was public property, but in the
next breath asserts in writing that a jail is public property. This, too, is problematic but not
necessarily grounds for reversal. United States v. Dobek, 789 F.3d 698, 701-02 (7th Cir. 2015).
When no reasonable jury would acquit the defendant, even without the use of a confusing
instruction, a retrial is a waste of judicial resources. Id.; see also United States v. Macias, 786
F.3d 1060, 1063 (7th Cir. 2015). Such is the case here.
¶ 45 The evidence was overwhelmingly against the defendant in this case. There is no
reasonable argument that the evidence was closely balanced. At trial, the jury watched video
footage of the defendant unexpectedly attacking the victim from behind and repeatedly battering
him. All the while, they were patently inside a jail. All witnesses at trial testified that the
incident took place at the Whiteside County jail.
¶ 46 To believe the erroneous instruction resulted in a structural error—and is therefore now
reversible—one would have to assume the jury convicted the defendant without concluding the
battery took place in a jail. The elements of aggravated battery are undisputable in this case. For
the reasons previously stated, no reasonable jury would find that the battery did not occur on
public property. Accordingly, no reasonable jury could acquit the defendant at a retrial, even if
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the instruction at issue were omitted.
¶ 47 When a defendant cannot bring forth facts contesting the element in question, as is the
case here, answering the question of whether or not the jury verdict would have been the same
without the error does not fundamentally undermine the purpose of the jury trial guarantee.
Neder v. United States, 527 U.S. 1, 19 (1999). It is beyond a reasonable doubt that the defendant
was found guilty by a rational jury. Thus, the trial court’s conviction stands.
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the circuit court of Whiteside County is
affirmed.
¶ 50 Affirmed.
¶ 51 JUSTICE CARTER, specially concurring:
¶ 52 I concur with the above opinion with the addition of the following comments. The
criminal Illinois Pattern Jury Instructions provide a general instruction in regard to judicial
notice, which should be given when appropriate. As to the specific fact judicially noticed, the
Illinois Rules of Evidence allow discretion in the trial court as to the method of informing the
jury that a fact has been judicially noticed.
¶ 53 Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that wherever the
criminal Illinois Pattern Jury Instructions contains an applicable instruction and it is deemed
appropriate in a criminal case it "shall be used." Paragraph (9) of the Illinois Pattern Jury
Instructions Criminal, No. 1.01 (4th ed. Supp. 2015) (hereinafter, IPI Criminal 4th (Supp. 2015))
provides:
"The evidence which you should consider consists only of the
testimony of the witnesses [and (the exhibits) (and) (stipulations)
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(and) (judicially noticed facts)] which the court has received. [You
may, but are not required to, accept as conclusive any fact
judicially noticed.]" IPI Criminal 4th No. 1.01 (Supp. 2015).
¶ 54 The committee note to IPI Criminal 4th No. 1.01 (Supp. 2015) indicates:
"The Committee has added 'stipulations' and 'judicially noticed
facts' in paragraph [9] as types of evidence a jury should consider
during the course of its deliberations. In Illinois Rule of Evidence
201(g), the Illinois Supreme Court stated, 'In a criminal case, the
court shall inform the jury that it may, but is not required to,
accept as conclusive any fact judicially noticed'. The second
sentence in Paragraph [9] has been added so that this Instruction
complies with Rule 201(g)." IPI Criminal 4th No. 1.01 Committee
Note (Supp. 2015).
¶ 55 Illinois Rule of Evidence 201(g) is entitled "Informing the Jury" and provides:
"In a civil action or proceeding, the court shall inform the jury to
accept as conclusive any fact judicially noticed. In a criminal case,
the court shall inform the jury that it may, but is not required to,
accept as conclusive any fact judicially noticed." Ill. R. Evid.
201(g) (eff. Jan. 1, 2011).
¶ 56 Illinois Rule of Evidence 201(g) is identical to Federal Rule of Evidence 201(g) before its
amendment effective December 1, 2011 (Fed. R. Evid. 201(g) (prior to amendments of
December 1, 2011)), "except for the modification of the title and the substitution of 'inform' for
'instruct' in both sentences, thus permitting more informal direction from the court to the jury."
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Gino L. DiVito, The Illinois Rules of Evidence: A Color-Coded Guide, Author's Commentary on
Ill. R. Evid. 201(g), at 31 (January 12, 2015). Illinois Rule of Evidence 201(g) modified the
earlier version of Federal Rule of Evidence 201(g) to substitute the word "inform" for "instruct"
in both sentences and changed the title from "Instructing the Jury" to "Informing the Jury." Ill.
R. Evid. 201(g) (eff. Jan. 1, 2011). These variances allow the trial court discretion to either
formally instruct or give an informal direction regarding judicially noticed facts and the
mandated caveat—that the jury may, but is not required to, accept a judicially noticed fact as
conclusive. Graham's Handbook of Illinois Evidence indicates that, if a matter would fall within
the province of the jury, the court must ensure that the jury is aware that the fact has been
judicially noticed, which may be accomplished: (1) as a direct result of the jury hearing counsel's
request for judicial notice and the court's concurrence; (2) the judge advising the jury specifically
at the time that the particular fact has been judicially noticed; or (3) by the court including an
instruction to the jury that a particular fact has been judicially noticed at the time of formal jury
instructions. Michael H. Graham, Graham's Handbook of Illinois Evidence § 201.4, at 85 (10th
ed. 2010).
¶ 57 Thus, a trial court has discretion to include the judicially noticed fact in the jury
instructions or inform the jury of a judicially noticed fact with an informal direction, with the
appropriate method depending on the circumstances. For example, where a judicially noticed
fact pertains to an element of a charged offense in a criminal case, then the State might request
that the judicially noticed fact be included in a formal jury instruction. On the other hand, all
parties may be satisfied with an informal direction to the jury in regard to a judicially noticed
fact in other circumstances.
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