Appeal from the Circuit Court of the 9th Judicial Circuit, Warren County, Illinois. Circuit No. 11-CF-57. Honorable Greg McClintock, Judge Presiding.
Reversed and remanded.
Defendant's conviction for threatening a public official, a police officer, was reversed and the cause was remanded for a new trial where the trial court erred by giving inconsistent instructions on the offense of threatening a public official, and neither the issues instruction nor the definition instruction included as an element of the offense the requirement, pursuant to subsection 12-9(a-5) of the Criminal Code effective at the time of defendant's arrest, that the State prove defendant communicated a unique threat to a police officer.
Bryon Kohut (argued), of State Appellate Defender's Office, of Ottawa, for appellant.
Albert G. Algren, State's Attorney, of Monmouth (Thomas D. Arado (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices McDade and O'Brien concurred in the judgment and opinion.
On April 23, 2011, defendant Aaron Warrington was arrested for the felony offense of threatening a public official, a police officer, and resisting arrest, a misdemeanor charge. The State charged defendant, by information, with threatening a public official, a Class 3 felony, but did not include the specific statutory language regarding the victim being a police officer. Eventually, the State filed a third misdemeanor count of fleeing and eluding a police officer.
The court held a jury trial on all charges. During the jury instructions conference, neither the court nor the parties recognized the People's tendered instructions did not include an element of the felony offense requiring the State to prove defendant communicated a " unique threat" to a police officer as a public official. Defendant argues that although the instruction issue was not properly preserved for review, plain error requires reversal of his felony conviction. Additionally, defendant contends the State presented insufficient evidence to prove him guilty of threatening a public official who is a police officer. We reverse and remand for a new trial.
On April 25, 2011, the State filed a two-count information against defendant. Count I alleged, on or about April 23, 2011, defendant committed the offense of threatening a public official, pursuant to section 12-9(a)(1)(i), (a)(2) of the Criminal Code of 1961 (the Code), a Class 3 felony. 720 ILCS 5/12-9(a)(1)(i), (a)(2) (West 2010). The information alleged defendant " knowingly conveyed to Terry Hepner, a sworn law enforcement officer for the City of Monmouth, Illinois, a public official, an oral threat to commit bodily harm to Terry Hepner, as such threat was made in such a way to place Terry Hepner in reasonable apprehension of immediate or future bodily harm and said threat was conveyed because of Terry Hepner's performance of a public duty." Counts II and III alleged the misdemeanor offenses of resisting a peace officer fleeing or attempting to elude a police officer.
The jury trial commenced on August 10, 2011. The State's first witness, Monmouth police officer Terry Hepner, testified he was stopped at a traffic light in a marked squad car, on April 23, 2011, when he heard loud music coming from defendant's vehicle from over 75 feet away. Officer Hepner conducted a traffic stop on defendant's vehicle because the loud music violated city ordinances. Once stopped, defendant told the officer it was a " bullshit stop." Officer Hepner advised defendant he was going to receive a citation for an ordinance violation and began to walk back to his squad car, when defendant said, " See ya, Hep," and sped off in his vehicle.
Officer Hepner caught up to defendant with his lights and siren activated. At that point, defendant did not stop, but turned southbound on an intersecting street. Officer Hepner followed defendant for several blocks until defendant turned into the long driveway of his girlfriend's
residence, parked back near the garage, and exited his vehicle. Officer Hepner approached defendant and told defendant to place his hands on the squad car. Defendant kept his arms at his side and did not comply.
Officer Hepner grabbed defendant's left hand and secured it with a handcuff. When Officer Hepner tried to grab defendant's right hand, defendant pulled away, requiring Hepner to pin defendant's body against the squad car to restrain defendant's right hand. Officer Hepner told defendant to stop resisting so the officer could get defendant's right hand cuffed.
Defendant's girlfriend, Tuesday Birditt, came outside and, according to the officer, defendant " spun himself around," resulting in a " little struggle" which ensued for four to five minutes until Officer Hepner placed the right handcuff on defendant. Officer Hepner took defendant to the passenger side of the squad car, and defendant initially refused to sit in the squad, but he finally sat down. According to Hepner, defendant continued yelling the whole time and started spitting at the back window of the squad.
While en route to the police station, defendant asked Hepner whether the officer had children. Defendant told Hepner he knew where the officer lived, and he would have beaten Hepner's " ass" if Hepner had not been a police officer. Once they arrived at the jail, Officer Hepner said defendant told him he was going to " head butt" the officer while walking near the officer. Officer Hepner said he believed defendant's threats were actual threats against him.
The jury then viewed a DVD copy of the recording from the camera in Officer Hepner's squad car during defendant's arrest. Officer Hepner said the video portion of the incident did not record properly, showing only a white background; however, the audio recorded properly during the arrest and the sound was an accurate representation of the words exchanged between defendant and Officer Hepner.
Next, Anthony St. Clair testified, in the State's case in chief, that he was a college intern riding along with Officer Hepner on April 23, 2011. St. Clair's account of the incident was similar to Hepner's testimony.
Tuesday Birditt, defendant's girlfriend for nine years, testified she saw the officer approach defendant, who had his hands behind his back. Birditt testified, after the officer placed a handcuff on one of defendant's wrists, she saw the officer push defendant up against the vehicle. She stated she did not see defendant pull his other hand away from the officer. Birditt said she kept yelling at the officer to try to find out what was going on, and it was possible that she also yelled at defendant at that time. Birditt said defendant was yelling, hollering, and cursing after the officer pushed him against the vehicle, but she did not hear him make any threats. She said she did not think defendant was resisting until the officer pushed him against the vehicle.
Defendant testified, on the day of the traffic stop, a vehicle that was stopped behind him at the traffic light was playing loud music. After Officer Hepner stopped his vehicle, defendant denied playing his music too loudly and tried to explain why his music was not too loud when the officer returned to his squad car. According to defendant, he overheard Officer Hepner use profanity while at his squad car, and defendant became fearful and drove away from the scene because he had prior run-ins with this officer. Defendant testified he was afraid Officer Hepner might " possibly plant contraband in my vehicle."
Defendant thought Officer Hepner treated him unfairly because defendant used to date one of Hepner's ex-girlfriends approximately 10 years prior. Defendant testified Officer Hepner also did not like him because, approximately six years ago, defendant had photos of Officer Hepner that reflected badly on Officer Hepner, and defendant gave the photos to the press. Defendant mentioned those photos to Officer Hepner, at the traffic stop on ...