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03/27/95 PEOPLE STATE ILLINOIS v. GARY E. TABER

March 27, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY E. TABER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County. No. 93CF50. Honorable Fred W. Reither, Judge Presiding.

As Corrected May 2, 1995.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J. Knecht, P.j., and Green, J., concur.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In June 1993, a jury convicted defendant, Gary E. Taber, of aggravated battery at a public place of amusement (720 ILCS 5/12-4(b)(8) (West 1992)), and the trial court later sentenced him to probation. Defendant appeals, arguing that (1) the trial court failed to properly instruct the jury; (2) the trial court improperly permitted him to be impeached by prior convictions; (3) he received ineffective assistance of counsel; and (4) the State failed to prove him guilty beyond a reasonable doubt. Because we agree with defendant's first contention, we reverse and remand for a new trial.

I. BACKGROUND

Because of the disposition in this case, we need not review the facts at length. Essentially, this case arose out of a bar fight. The State's witnesses identified defendant as the aggressor; defendant claims he struck the alleged victim, David Whitaker, in self-defense.

II. ANALYSIS

A. The Jury Instructions

At the conference on instructions, the State tendered People's instruction No. 13, which was based upon Illinois Pattern Jury Instructions, Criminal, No. 11.16 (3d ed. 1992) (hereinafter IPI Criminal 3d), and which stated as follows:

"To sustain the charge of aggravated battery at a public place of amusement, Count I, the State must prove the following propositions:

First: That the defendant knowingly caused bodily harm to David Whitaker; and

Second: That the defendant did so while on or about a public place of amusement * * *.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, ...


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