People v. Jackson

1

2024 IL App (4th) 230271-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EZEKIEL N. JACKSON, Defendant-Appellant.

No. 4-23-0271

Court of Appeals of Illinois, Fourth District

February 27, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County No. 21CF344 Honorable Ryan M. Cadagin, Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.

ORDER

LANNERD, JUSTICE

¶ 1 Held: The appellate court affirmed, concluding (1) the trial court did not err in refusing to instruct the jury on the lesser-included offense of aggravated assault and (2) defendant's trial counsel was not ineffective for failing to raise the issue in a posttrial motion.

¶ 2 Following a May 2022 jury trial, defendant, Ezekiel N Jackson, was convicted of one count of aggravated battery to a correctional officer (720 ILCS 5/12-3.05(d)(4)(i) (West 2020)). The trial court sentenced defendant to five years' imprisonment to be served at 50%, followed by one year of mandatory supervised release. Defendant appeals arguing (1) the court erred in refusing to instruct the jury on the lesser-included offense of aggravated assault and (2) his trial counsel was ineffective for failing to raise the issue in a posttrial motion. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On April 22, 2021, while incarcerated in the Sangamon County jail, defendant threw a cup of urine onto Devon Ritz a correctional officer. On May 21, 2021, the State charged defendant by information with one count of aggravated battery to a correctional officer (720 ILCS 5/12-3.05(d)(4)(i) (West 2020)). In May 2022, defendant,pro se, proceeded to a jury trial.

¶ 5 A. The State's Evidence

¶ 6 1. The Testimony of Officer Devon Ritz

¶ 7 Officer Ritz testified he was assigned to Block B at the Sangamon County jail on April 22, 2021. At approximately 4 p.m., he performed a cell check in Block B, where defendant was housed. Ritz explained there is a food slot in the door of an inmate's cell and the slot is large enough for an inmate to put their hand or arm through. When Ritz was walking towards defendant's cell, the food slot was open and defendant "said something along the line of like, I got something for your b*** a***." Ritz interpreted this as a threat. Ritz stepped back from defendant's cell and defendant said, "I'm just messing with you man. Just messing with you." Shortly thereafter, Ritz began walking towards defendant's cell so he could close the food slot with his foot. Defendant reached his arm through the food slot with a clear plastic cup and threw urine on the front of Ritz's uniform. Ritz could tell the substance was urine because it was yellow and had a strong odor. No other officers were present during this incident.

¶ 8 2. The Testimony of Officer Jack Miller

¶ 9 Officer Jack Miller testified he was called to assist with a disturbance in Block B at approximately 4 p.m. on the date of the incident. When Miller arrived, defendant was handcuffed, and Miller assisted with transporting defendant to the intake area. When asked to describe defendant's demeanor, Miller stated, "He was happy. He was laughing. He was excited." Defendant called Ritz "piss boy" and "told other officers that he would continue to throw piss on us and was making it like a game, almost like a threat if anyone were to treat him poorly or say no these are going to be the consequences." Miller explained he was not present at the time of the offense.

¶ 10 B. Defendant's Evidence

¶ 11 Officer Meyer testified he did not witness the incident and did not recall observing any "wet-like substance" on Ritz. Meyer saw "multiple officers" in Block B "already taking care of' the incident. Meyer assisted with escorting defendant from the area and described defendant's demeanor as "[a] mix of angry and kind of joking." According to Meyer, defendant laughed and said, "I'll do it again."

¶ 12 C. The Jury Instruction Conference

¶ 13 At the jury instruction conference, the trial court recited defendant's proposed instruction, which would allow an instruction on the lesser-included offense of assault. The State objected, arguing:

"The evidence here has been uncontested that the defendant, as alleged, splashed a cup of urine on Officer Ritz. There has been no testimony that the urine did not hit Officer Ritz and was just an assault. And there's been no testimony that Officer Ritz was not a correctional officer was not acting in his official duties and that it was just a simple battery and not an aggravated battery."

¶ 14 Defendant responded:

"Your Honor, the prosecutor still has not proven that I came into physical contact with Devon Ritz with urine or any liquid-like substance.

*** With this being said, Your Honor, assault means I believe without lawful justification places another one in reasonable apprehension of receiving a battery. If you can prove-if you cannot prove that I came in physical contact with you with anything it's not a battery. Assault means I could have placed you in reasonable apprehension of receiving a battery such as I stated that the liquid-like substance possibly hit the floor and didn't hit him that placed him in reasonable apprehension of receiving a battery or tried to provoke him if I committed that alleged offense. So I feel like it's very necessary for the jurors to be instructed of that lesser[-]included offense."

¶ 15 The trial court ruled as follows:

"I agree with [the State's], you know, argument *** of the evidence presented in this case both that [Ritz] was a correctional officer and then also that the evidence was that there is no evidence that it didn't hit him. He was asked about it and said no, it did hit me. So I'm going to deny Defendant's Instruction 1 regarding those lesser[-] included offenses."

¶ 16 D. Verdict and Sentence

¶ 17 The jury found defendant guilty of aggravated battery. The trial court appointed counsel for defendant for purposes of sentencing. On September 22, 2022, the court sentenced defendant to five years' imprisonment to be served at 50%, followed by one year of mandatory supervised release. This sentence was to be served consecutively to a sentence of 10 years' imprisonment at 85%, followed by 3 years' mandatory supervised release on a conviction, in Sangamon County case No. 19-CF-271, of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2018)). (Defendant has appealed the denial of his motion to withdraw his guilty plea in the latter case in appellate court case No. 4-23-0270.)

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 Defendant argues the trial court abused its discretion when it declined to instruct the jury on the lesser-included offense of aggravated assault. Defendant acknowledges he did not preserve this issue for appellate review through a posttrial motion. Nevertheless, defendant argues the court's refusal to instruct the jury on the lesser-included offense should be reviewed under the plain-error doctrine. Alternatively, defendant argues his posttrial counsel was ineffective for not raising this issue in a posttrial motion.

¶ 21 "To preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion. [Citation.] Failure to do either results in forfeiture." People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. However, "a reviewing court may exercise discretion and excuse a defendant's procedural default." Sebby, 2017 IL 119445, ¶ 48.

"Under the plain-error doctrine, this court will review forfeited challenges when: (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant; or (2) a clear or obvious error occurred, and the error is so serious that it affected the fairness of the defendant's trial and the integrity of the judicial process, regardless of the closeness of the evidence." People v. Taylor, 2011 IL 110067, ¶ 30, 956 N.E.2d 431.

A reviewing court begins a plain-error analysis by determining whether error occurred at all. People v. Sargent, 239 Ill.2d 166, 189, 940 N.E.2d 1045, 1059 (2010). "[T]here can be no plain error if there is no error." People v. Johnson, 218 Ill.2d 125, 139, 842 N.E.2d 714, 722 (2005).

¶ 22 The Illinois Supreme Court has explained:

"Generally, a defendant may not be convicted of an offense for which he has not been charged. [Citation.] However, in an appropriate case, a defendant is entitled to have the jury instructed on a less serious offense if that offense is included in the charged offense. [Citation.] The purpose of an instruction on a lesser offense is to provide 'an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.' [Citation.]" People v. Hamilton, 179 Ill.2d 319, 323-24, 688 N.E.2d 1166, 1169 (1997).

¶ 23 Determining whether the trial court erred in refusing to instruct the jury on a lesser- included offense entails a two-pronged inquiry. People v. Hill, 2020 IL App (1st) 162119, ¶ 17, 169 N.E.3d 1048. As applied to this case, we must determine first whether aggravated assault is a lesser-included offense of aggravated battery. Hill 2020 IL App (1st) 162119, ¶ 17. "[T]he charging instrument approach applies when determining whether an uncharged offense is a lesser-included offense of a charged offense." People v. Kennebrew, 2013 IL 113998, ¶ 32, 990 N.E.2d 197. Under the charging...