JUSTICE THEIS delivered the judgment of the court, with
opinion. Justices Thomas, Kilbride, and Garman concurred in
the judgment and opinion.
1 Defendant, Montana Sebby, was convicted by a jury of
resisting a peace officer, a Class 4 felony (720 ILCS
5/31-1(a-7) (West 2010)), and sentenced by the trial court to
two years' imprisonment. On appeal, the defendant argued
that the trial court committed error in admonishing
prospective jurors pursuant to Illinois Supreme Court Rule
431(b) (eff. May 1, 2007) and that, despite his failure to
object to that error, he was entitled to a new trial because
the evidence was closely balanced. A majority of the
appellate court disagreed with the defendant and affirmed his
conviction and sentence. 2015 IL App (3d) 130214.
2 For the reasons that follow, we reverse and remand for
4 In 2011, Bonnie and Howard Sebby lived on a farm in rural
La Salle County near Utica. The Sebbys had four children: the
defendant; his older brother, Oakland Sebby; and his younger
twin sisters, Casey and Elizabeth Sebby. Casey and Elizabeth
died in a car accident on September 23, 2011, and on October
18 the trial court entered an order granting temporary
physical custody of Casey's daughter, L.S., to her
biological father. The order directed law enforcement
officials to assist the father in obtaining L.S. from
"whoever had physical custody of the child."
5 The La Salle County sheriff's office believed that L.S.
was staying with the Sebbys, and they visited the farm with
the custody order three times. The first time was October 21.
The second time was October 26 at 5:30 p.m., when
Investigator Jason Martin attempted unsuccessfully to serve
the order on Bonnie. Around 12 hours later, on October 27,
three uniformed deputies-Joshua McGrath, Jason Mohr, and
Jarred Arthur-arrived at the farm around 6 a.m. The
defendant, who did not live with his parents but had spent
the night at their house, came to the door and spoke with the
deputies. What happened next is in dispute. What is not in
dispute is that the defendant ended the encounter in custody,
charged with resisting a peace officer.
6 The case proceeded to a jury trial. The La Salle County
circuit court  admonished the jury pool as to the
so-called Zehr principles (see People v.
Zehr, 103 Ill.2d 472 (1984)), enumerated in Rule 431(b):
"The most important law on a criminal case is the
defendant[, ] who you will meet in a moment[, ] is presumed
innocent. The presumption of innocence exists throughout the
trial. The defendant doesn't have to prove anything. The
defendant doesn't have to testify. The defendant
doesn't have to present evidence, and the defendant, if
he does not, and you cannot and you must not hold that
against him or assume anything by that. The State is
obligated by law to prove the defendant guilty beyond a
7 The trial court questioned potential jurors in panels of
six. During the questioning of the first panel, the court
talked to a potential juror about the Zehr
"Q. First of all, you need to understand the presumption
Q. But what if the defendant denies that but you have to
understand that may be a story told, and it may be you having
to decide whether it's a story told and credibility. I
can't say that may not be the story. I may have to say
that's what somebody says, but the defendant by the way
who's presumed innocent doesn't have to testify, and
if he doesn't, you must not hold that against him. Would
that affect your decision?
A. Not if there's no evidence pointing to that fact.
Q. Okay. Good. That's what I'm looking for. That was
a very good answer because that was the answer in this case.
Now, going back to all six of you, the defendant is presumed
innocent, and that presumption of innocence exists throughout
the trial. The defendant does not have to prove anything. He
doesn't have to testify. He doesn't have to present
evidence, and if he does not, then you must not hold it
against him. It's the State's burden to prove the
defendant guilty beyond a reasonable doubt, and I need to go
through each of you with that."
8 The trial court then individually asked the remaining
members of the panel whether any of them "[h]ad any
problems" with those principles, while interweaving
questions about whether there was anything that would prevent
them from being fair and impartial in evaluating the
evidence. The trial court specifically repeated its question
with respect to the presumption of innocence to two potential
jurors because they indicated that they might be biased.
Using similar phrasing, the trial court spoke to each panel
of prospective jurors about the Zehr principles. The
trial court again asked the individual jurors of each panel
whether they "[h]ad any problems" with or
"believe[d] in" those principles, as well as
whether anything would prevent them from being fair and
9 Following opening statements, the State called its first
witness, Deputy McGrath. McGrath testified that on October
27, 2011, he went with Deputies Mohr and Arthur to serve the
court order at the Sebby residence. After he knocked on the
door for several minutes, a woman answered the door. McGrath
asked the woman if she lived there, and she said no. He then
asked to speak to someone who did live there, and the woman
said that "nobody else was home." McGrath explained
that "it was imperative that we made [sic]
contact with a resident of the house and the child and that
to prevent anybody from getting in any further trouble or any
trouble whatsoever it would be best to cooperate and explain
to us how we can make contact with the home owner or resident
of the house."
10 According to McGrath, the defendant then came to the door.
Mohr handed a copy of the court order to the defendant, and
the deputies again explained why the police were at the
house. McGrath testified that the defendant was
"basically uncooperative and upset that we were
there." When the deputies asked where the child was, the
defendant told them that she was "on vacation with
Bonnie and he didn't know where or how to get a hold of
them." The conversation between McGrath and the
defendant occurred just outside the house. The defendant
"more and more agitated about what was going on. He
handed the court order back to Deputy Mohr saying this is not
a search warrant which we never said it was and then he
reached over and poked me in the shoulder as he was yelling
for us to get out of the-poked me in the shoulder area as he
was yelling for us to leave his property."
11 McGrath advised the defendant that he was under arrest for
battery of a peace officer. McGrath reached for the
defendant's wrist, but the defendant "pulled away
and resisted arrest at that time." McGrath and Mohr then
"attempted to gain control of [the defendant] as he was
basically thrashing his body about trying to get away and
resist arrest." The deputies then assisted the defendant
to the gravel driveway in an effort to gain control over him.
They repeatedly told him to stop resisting and to put his
hands behind his back because he was under arrest.
Eventually, the deputies handcuffed the defendant and placed
him in the backseat of Mohr's squad car. At that point,
McGrath noticed that Mohr "had some scratch marks on his
hands, on both hands and wrist area of his right hand, "
as well as some scratches on the back of his left hand.
McGrath testified that the scratches were "not bad"
but were "definitely open scrapes and cuts."
12 At that point, Oakland Sebby came to the door of the
house. McGrath explained why the police were there and asked
if they could enter the house to "check" for the
girl. Oakland refused. The deputies then took the defendant
to the La Salle County jail, where he was given
Miranda warnings. McGrath asked the defendant
"why he poked me the way he did[, ] he stated that he
was just getting ready to tell us we could go in and check
the house for [L.S.] and then when I explained to him
[']you were just seconds before yelling at us to leave
your property when you reached over and poked me, ['] he
did not want to talk any further."
13 On cross-examination, McGrath did not recall whether he
stuck his foot in the door when the woman answered his
knocking, but he admitted that the deputies did not have
permission to enter the house. McGrath testified that after
he was told by the woman and the defendant that the girl was
not there, he remained at the house "[b]ecause I had
reason to believe they were not telling the truth."
"[W]hen I answered [sic] the door the first
time somebody comes to the door and turns off the light and
doesn't open the door. I knock on the door again and a
female answers and says she's the only one there. Nobody
else is there and then all of a sudden [the defendant] shows
up at the door a few moments later and then a few moments
after that Oakland shows up at the door so obviously I had
been lied to already during that time."
14 McGrath stated that the woman did not lie about the fact
that Bonnie Sebby was not at the house: "I was not lied
to, but I was not allowed in the house either." McGrath
reiterated that the deputies remained at the house, even
after being told to leave by the defendant, because they
believed that the woman had lied to them and they "had a
responsibility to make every attempt to get that court order
15 McGrath denied that the defendant merely brushed him:
"He poked me as he was yelling profanities at us to get
off of his property." McGrath explained that "[d]ue
to [the defendant's] resistance we attempted to gain
control of him standing up. That wasn't happening. We
took him-Deputy Mohr was the one that had more of a hold on
him. We then placed him to the ground, assisted him to the
ground." When asked whether he could state how Mohr was
injured, McGrath testified, "[The defendant] resisted
when I told him he was arrested for poking me in the shoulder
so if he would have cuffed up at that point in time, we never
would have had to go to the ground in the first place so I
believe the responsibility remains with him." McGrath
added: "Deputy Mohr was injured while we were trying to
gain control of [the defendant] while we were on the
ground." McGrath admitted, however, that he did
"not know exactly at what point and time"
Mohr's injuries occurred. McGrath concluded that the
defendant's "moving and rolling around on the ground
was to prevent us from taking him into custody."
16 On redirect examination, McGrath testified that the
"pulled away from us, when he pulled away from me
initially when I told him he was under arrest for poking me
in the shoulder, he pulled away and headed towards I guess
towards Deputy Mohr, and when we were trying to get him to
the ground it was basically him still attempting to get away
asserted that "the fact of [the defendant's] level
of resistance" took the deputies to the ground. The
deputies and the defendant "rolled around in different
positions for a few moments before we were able to get him to
his stomach and try to get his hands behind his back."
17 Deputy Mohr testified that he rode in a squad car to the
house with McGrath. When they arrived to serve the court
order, they "attempted to make contact with someone
knocking on the door several times" over 5 to 10
minutes. According to Mohr, "[t]here was a light on
inside of the house, " but "[s]omeone had turned it
off while we were standing outside knocking." A woman
finally came to the door. When the deputies asked to speak to
a home owner, the woman "said there was no one else home
18 The defendant then came to the door. Mohr and McGrath
tried to explain the court order, and Mohr gave a copy of it
to the defendant. The defendant gave it back to Mohr. Mohr
testified that the defendant was "somewhat hostile"
and "a little upset that we were out there in the
morning." Mohr added that the defendant told the
deputies "[t]o get off the property and that the paper
that I gave him wasn't a search warrant." The
defendant then poked McGrath "in the left shoulder,
chest area." McGrath advised the defendant that he was
under arrest and "attempted to gain control of his arm
to place them behind his back." The defendant resisted
by "pulling away" and "lurching around, "
so Mohr helped McGrath. Mohr recalled that the defendant was
shirtless. They took him to the ground in a "somewhat
controlled" fall, which ended with all three men in the
gravel driveway. A struggle ensued for 20 seconds, in which
the defendant tried to pull his hands under his body. The
defendant "had landed like on his chest or his side and
was just told to put his hands behind his back. He didn't
comply. He just continued to put his hands away from us.
Eventually we were able to gain control and get his arms
behind him and handcuff him." Mohr's hands were
between the defendant and the gravel driveway. Mohr had to
"get under there and get a hold of him and pull his
hands out from under him and get them back behind his
back." Mohr later noticed scrapes on his hands and
wrists from the gravel.
19 On cross-examination, Mohr conceded that he may have been
handed a shirt for the defendant after he was in the squad
car. Mohr denied that McGrath kicked at the door. He merely
"knocked at a reasonable level so it could be
heard." He also denied that he was agitated, and he did
not recall using profanities or threatening to pull the
defendant's mother from the house by her hair. Mohr could
not say "100 percent" that the scrapes came from
the gravel but added "that was the only place I was
other than standing was in the gravel." He did not
believe that McGrath or Arthur could have grabbed his arm and
caused the scrapes, but he again could not say "100
percent." Mohr testified that he and McGrath were an
arm's length from the defendant when he stepped forward
and poked McGrath in the chest. Mohr admitted that the
incident report did not state that the defendant stepped
20 Deputy Arthur testified that he arrived at the house
shortly after McGrath and Mohr. Arthur's version of
events was succinct: "We attempted to serve the paper.
[The defendant] poked Deputy McGrath." According to
Arthur, the defendant was "hostile verbally and would
not accept the paper." The defendant was wearing shorts,
but no shirt. After he poked McGrath, McGrath tried to place
him in handcuffs: "[H]e resisted, and he was taken to
the ground." Arthur restrained the defendant's feet,
while McGrath and Mohr got his arms "out from underneath
him." Arthur noticed Mohr had several scratches on his
21 On cross-examination, Arthur testified that McGrath and
Mohr were two feet from the defendant when they spoke to him.
Arthur agreed that distance was "[p]retty close
quarters" and "crowded" but stated that the
defendant stepped toward McGrath, even though that fact did
not appear in the incident report. Arthur was "off to
the side" and remembered seeing "some sort of
contact" between the defendant and McGrath. Arthur added
that the deputies were asked to leave the property
"[o]nce or twice" but did not do so because they
had "a responsibility to attempt to locate that
child." He denied that McGrath and Mohr used profanity.
22 The trial court denied the defendant's motion for a
directed verdict, and defense counsel called Angela
Dankenbring as a witness. Dankenbring testified that she was
a family friend who had previously dated Oakland. Dankenbring
went to the house on the night before the incident and
encountered Howard but no one else. Dankenbring spent the
night there, sleeping on a couch in the living room. At 6 the
next morning, she "woke up to very loud pounding on the
door." The door was shaking, and she was afraid it would
break. She thought Howard was knocking at the door because he
had forgotten his keys. When she opened the door, she saw a
23 The deputy asked if Bonnie was at the house. Dankenbring
said that she was not but she did not know where she was.
Dankenbring also said that she did not know if anyone else
was at the house. The deputy asked her for identification and
"shoved his foot in the door and wouldn't let me
shut the door." According to Dankenbring, the deputy was
"very belligerent" and "hostile, "
"yelling" that he would arrest her for obstructing
justice and that she just needed to cooperate. Over the
course of 5 to 10 minutes, Dankenbring and the deputy spoke:
"We just kept going back and forth because he wanted to
search the house, and I said it wasn't my house. I
don't feel like I can give you permission to search it.
It's not my home, and we just kept doing that." As
the deputy became more agitated, the defendant came upstairs.
24 Dankenbring testified that the defendant stepped outside
the house to talk to the deputies. She ran for a sweatshirt
and shoes, returned to the door, and stood behind the
defendant. The deputy to whom Dankenbring had spoken was a
foot away from the defendant, and the other two deputies
"kind of kept their distance" several feet away.
Dankenbring described their conversation:
"[The defendant] said that his mother wasn't home
and then they were asking about [L.S.] He said that she was
with [her] grandmother on vacation. He didn't know where
they were. They asked him to try to contact his mother. He
was like she's not going to answer at  o'clock.
He'd ask them to please leave because he had already told
them she was out of town and she wasn't there, and he
asked them repeatedly to please leave."
said that the defendant was "loud" but not
"physical or anything." He was "loudly saying
[']I'm tired of this. You need to please leave my
family alone. It's 6:00 a.m. My daughter's sleeping.
Leave.['] " The deputies did not leave because they
wanted L.S. and Bonnie. According to Dankenbring, they were
"agitated" and "very hostile, " swearing
at the defendant and "calling him names." She was
25 Dankenbring did not see any contact. The defendant was
"talking with his hands, and like he was [']you need
to leave. You need to leave (indicating), ['] and the one
officer yelled assault, and I was genuinely surprised because
I didn't see where that had happened." After that,
the defendant threw his hands into the air and said
"I'm cool" and "I'm calm." The
other two deputies then "ran up and grabbed each arm,
and they played tug of war with [the defendant] until he was
on the ground face down in the gravel." From
Dankenbring's perspective, the defendant was not
struggling but rather "moving a lot" because the
deputies "were not clear on who was doing what."
The defendant "looked like a puppet being held between
26 On cross-examination, Dankenbring testified that the
deputies were pulling the defendant's arms: "They
had his arms behind his back. He was laying on the ground,
and they were just moving his arms-he was moving because they
were-they didn't know what they were-it seemed to me like
they didn't know what they were doing. They were
wrestling his arms trying to get them in position and that
made him move." She agreed that the deputies took the
defendant to the ground but disagreed that they needed to get
his arms out in order to handcuff him. Dankenbring stated
that "[t]hey had his arms the whole time, " and
that "[t]hey each grabbed an arm and then they ended up
moving away from the house, and he ended up on his
stomach." She admitted that she couldn't recall
"exactly every move that was made." According to
Dankenbring, the defendant used profanity when telling the
deputies to leave the property, but "the officer had
been using swear words before he had."
27 On redirect examination, Dankenbring reiterated that, from
her perspective, "it looked like [the deputies] were
caught-like they were moving [the defendant] more than he was
moving. It didn't appear to me that he was resisting or
anything. It was just awkward, very awkward."
28 Oakland testified that on the morning of the incident, he
took a shower and turned off the kitchen light on his way
downstairs to get dressed. He heard "some loud banging
on the door, not banging but like trying to beat it
down." He proceeded downstairs to get dressed and answer
the door when it opened. He heard Dankenbring's voice and
continued dressing. He went back upstairs and saw the
defendant outside and Dankenbring behind him.
29 According to Oakland, the conversation between the
defendant and the deputies was "[o]bscenely loud"
with "[a] lot of F bombs" from McGrath. At first,
the defendant was "calm and collective [sic],
" but Oakland stated, "the more belligerent this
guy got, the more stern my brother got asking the police
officer to leave the property." Oakland testified that
he did not see the defendant make contact with anyone and
that the defendant had not touched anybody before the
deputies grabbed him. When asked again if there was any
contact between the defendant and McGrath, Oakland said,
"Prior to being apprehended, no." Oakland added,
"At the point of Officer McGrath screaming assault that
[the defendant] had F'ed up and he was going to jail, the
other two officers had grabbed each arm and started playing a
tug of war with him[, ] walking him away from the house and
trying to take him to the ground." Oakland later
provided more details: "When [McGrath] said
[']you're under arrest, you F'ed up, ['] [the
defendant] threw his hands up and said [']I'm cool.
I'm cool.['] That's when the officers grabbed
each arm and started toying with him." Oakland declined
to call the defendant's conduct resisting but instead
"trying to protect yourself from hitting gravel."
30 Samantha Russell, the defendant's girlfriend,
testified that she and defendant were downstairs in the house
asleep with their daughter on the morning of the incident.
Around 6:15 a.m. there was "pounding" at the door,
so Russell woke up the defendant to "go and see
who's knocking" because two officers had visited the
house the previous day looking for L.S. and Bonnie. The
defendant went upstairs. Five minutes later, Russell went
upstairs to check on him. He was in handcuffs. Following the
defendant's release from jail, Russell took photos of
"scrapes" on his arms and back.
31 The defendant then testified on his own behalf. He stated
that, before the morning of the incident, he had already
talked to the police twice about L.S. The girl had seemed
depressed after her mother's death, so her grandmother
Bonnie had taken her to visit family in the South. The
defendant was unsure where and had no way to contact his
mother. He did not live with his parents, but he was staying
there to help feed livestock while his father was at work and
his mother was away.
32 On October 27, the defendant went to the door wearing only
"sweat pants, no socks, no shoes." He recounted the
beginning of his interaction with the deputies:
"I seen [Dankenbring] go to shut the door and put her
shoes on and then the door springs back open. I look down in
the crack of the door and the officer has his foot in the
door so I open the door. I go to step out, and I shut the
door, and he says [']you're Montana, right, [']
and that was the first thing he says to me. [']You're
Montana, right, ['] like he was expecting me to be there
or I'm the one he wanted to talk to. [']Yes, I'm
Montana['] and then every word out of Mohr's mouth
was just [']we know your mom's here. You're an
F'ing liar. If we have to we'll drag her out by her
hair, and she'll never see her grandchild again.[']
They said [']this is a serious matter. If we have to
we'll get a warrant in five minutes and we'll be
back.['] I said [']hold on. You guys need to calm
down. You guys are acting like we have your kid here, you
33 According to the defendant, Mohr had the court order in
his hand, and he was cussing and yelling. The defendant
looked at the order, realized that it was not a search
warrant, and handed it back to Mohr. He asserted that he
"tried to be as calm as possible and just everything was
I was a liar." The defendant described
"everything" as "just so irate and just
unprofessional." He asked the officers to leave
"literally about every 45 seconds." He called them
"ridiculous" and added:
"I don't have to take this stuff. It's 
o'clock in the morning. I'm going to go inside. If
you guys have a warrant, go get your warrant and come in.
We'll be here all day. If that's what it takes,
I'll just sit here and wait for you guys to come back
with a warrant, and you guys can search the house and find
out I'm not lying, that I am telling the truth."
34 The defendant further testified that he told the deputies
his daughter and his brother's daughter were sleeping
inside the house. He also told them, "If one of you
would like to come in to the house to make sure [Bonnie and
L.S.] are not here, by all means." The defendant said
that Arthur insisted that all three deputies would have to go
together. The defendant looked at the deputies when "all
of a sudden I'm being grabbed, you know, and it's
like [']what's going on, ['] you know. I mean
I'm being called a dumb mother F'er, and [']you
messed up big time.['] " The defendant denied that
he made any contact with McGrath; the defendant was
"shocked" when McGrath grabbed him.
35 The defendant was "pulled off" the doorstep, and
the deputies "swung" him into the gravel, where he
lost his balance. He testified that he landed on his face.
According to the defendant, the deputies were yelling at him,
ordering him to quit resisting and put his hands behind his
back. The defendant responded, "You guys have both my
arms. If you want them behind my back, put them behind my
back." The defendant was just "trying not to get
hurt on [the] gravel." He denied that he did anything to
resist: "[A]s far as squirming, no, I don't believe
I was squirming."
36 On cross-examination, the defendant repeated that Mohr
called him a "F'ing liar, " insisting that
Bonnie was at the house. The defendant agreed that the
deputies arrived at the house and started a fight with him
for no reason. He also agreed that the deputies dragged him
"limp like a rag doll not fighting back for at least 30
feet" through the gravel.
37 At the close of the defendant's case, the parties
entered a stipulation. The parties agreed that if La Salle
County sheriff's office Investigator Jason Martin had
been called as a witness, he would have testified that he
attempted to serve the court order on October 26, 2012, the
day before the incident that resulted in the defendant's
arrest. Martin also would have testified that he spoke to the
defendant at his parent's house ...