People v. Slabon , 112 N.E.3d 1019 ( 2018 )

2018 IL App (1st) 150149FIRST DIVISION
August 20, 2018
No. 1-15-0149
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 2711
)
ANDREW SLABON, ) Honorable
) Catherine M. Haberkorn,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.
OPINION
¶1 Defendant, Andrew Slabon, appeals his conviction of aggravated battery after a jury trial,
for which he was sentenced to 50 months’ imprisonment. On appeal, defendant contends (1) he
was denied his right to present a defense where the trial court barred him from presenting
testimony about his state of intoxication, barred him from cross-examining witnesses about his
intoxication, and did not allow him to argue that his intoxicated state was relevant in determining
whether defendant possessed the requisite mens rea for an aggravated battery conviction and (2)
the trial court erred when it instructed the jury that voluntary intoxication was not a defense and
refused to instruct the jury on the lesser-included offense of simple battery where he presented
slight evidence that he did not know the person he kicked was a nurse. Defendant also requests
No. 1-15-0149
that the clerk of the circuit court correct his mittimus to properly reflect the name and statutory
citation of his convicted offense. For the following reasons, we affirm defendant’s conviction
and sentence and order the clerk to correct the mittimus to reflect a conviction for aggravated
battery of a registered nurse pursuant to section 12-3.05(d)(11) of the Criminal Code of 2012
(Criminal Code) (720 ILCS 5/12-3.05(d)(11) (West 2014)).
¶2 JURISDICTION
¶3 Defendant was sentenced on December 11, 2014. He filed a notice of appeal that same
day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 and 606,
governing appeals from a final judgment of conviction in a criminal case entered below (Ill. S.
Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014)).
¶4 BACKGROUND
¶5 The following facts are relevant to this appeal. Defendant was charged with one count of
aggravated battery for kicking Lauren Benjamin while she was performing her duties as a nurse.
Defendant represented himself throughout the proceedings. Prior to trial, the State filed a motion
in limine to prevent defendant from presenting a defense of voluntary intoxication. The State
argued that Illinois law no longer recognizes such a defense because section 6-3 of the Criminal
Code (720 ILCS 5/6-3 (West 2014)), provides only that an intoxicated person may not be
criminally responsible for conduct if “such condition is involuntarily produced.” Defendant
responded that he had no intention to use that defense and that his theory of defense was “that this
never happened, this incident never occurred.” However, he wanted to present a toxicology report
indicating his high blood alcohol level at the time of the incident because “it has to do with why
[he] was even in the hospital” and “has something to do with” the ‘knowing’ element of
-2­
No. 1-15-0149
aggravated battery where he “did not voluntarily walk into this hospital.” The court granted
defendant time to research the issue and at a later hearing, defendant stated he had no objection to
the motion. Before jury selection, defendant noted the motion in limine, but stated that while he
was not raising voluntary intoxication as a defense, his intoxication was relevant to whether he
possessed the requisite state of mind. The trial court stated that it would allow “[n]othing about
voluntary intoxication, as it is not a defense in Illinois.”
¶6 On January 27, 2014, Officer Angelo Sanchez and his partner, Officer James Mackin,
were dispatched to 2644 North Mason Avenue in Chicago, Illinois, to conduct a possible death
investigation. The officers entered the residence and noticed emergency personnel tending to a
woman on the floor. Officer Sanchez observed defendant sitting on a couch about six or seven
feet away, screaming hysterically, flailing his arms, and trying to get up. He tried to calm
defendant down, but defendant did not respond. The officers moved defendant to another
location in the house but he did not cooperate. For their safety as well as defendant’s, the officers
handcuffed him so they could transfer him to a bedroom.
¶7 After being moved, defendant kept trying to go back to the living room, and the officers
unsuccessfully tried to calm him down. They called for backup, and Officers Jerry Adamski and
David Cummens came to the bedroom. When defendant was informed that the woman was
deceased, he continued to scream and said he wanted to kill himself. He yelled, “I can’t believe
this is happening. I can’t believe that she is gone. I don’t want to live anywhere.” Concerned for
defendant’s well-being, Officer Sanchez called an ambulance for defendant pursuant to Chicago
Police Department procedures. Defendant was still kicking and screaming when the ambulance
arrived, and the officers did not want to upset him further so they decided to escort him out from
the back of the house. Two firefighters, as well as Officers Adamski and Cummens, assisted
-3­
No. 1-15-0149
defendant out to the ambulance. Defendant continued to state that he wanted to kill himself and
he was taken to Our Lady of Resurrection Hospital.
¶8 Chicago Fire Department emergency medical technician (EMT) Morris Bishop testified
that on January 27, 2014, he and his partner Quentin Strong responded to a psychiatric
emergency at a residence. They entered the residence and saw a woman lying on the floor. EMT
Bishop heard a man, later identified as defendant, scream and curse in a back room. He watched
defendant being escorted from the room, handcuffed. Defendant was belligerent. EMT Bishop
attempted to take defendant’s vitals and history in the ambulance, but defendant was very
combative. Defendant continued to yell, jerk and kick on the way to the hospital. At the hospital,
defendant was placed in a wheelchair and taken to the nurse’s station. EMT Bishop could not
recall defendant’s exact words when he was yelling and screaming.
¶9 Officer Cummens testified that on January 27, 2014, he and Officer Adamski responded
to a call for assistance. When they arrived, defendant was loud and upset, using profanity, and
flailing his legs. After he learned the woman was deceased, he threatened “I don’t want to live
anywhere. Just kill me, I want to kill myself.” Following police procedure, they called an
ambulance for defendant and when it arrived, Officer Cummens escorted defendant through a
rear door to the ambulance and rode with him and a paramedic to the hospital. While in the
ambulance, defendant refused to lay down on the gurney or give any personal information. He
told the EMT to “Go f*** yourself.” Defendant was very angry during the ride and started
kicking the gurney. At the hospital, Officer Cummens escorted defendant to the emergency room
and at the main desk, Benjamin introduced herself as one of the nurses and offered defendant a
glass of water. A doctor also introduced himself to defendant, who remained very agitated and
refused to answer questions.
-4­
No. 1-15-0149
¶ 10 Officer Cummens accompanied defendant, Benjamin, other hospital personnel and a
security guard to room number 7. Benjamin reintroduced herself to defendant, explaining that
she was there to help him and needed to take his vitals. Defendant refused to lay down on the
hospital bed and asked her if she was Jewish. Throughout defendant’s cursing and belligerent
behavior, Benjamin remained calm and professional. When she tried to take his vitals, defendant
said, “Don’t touch me, you dirty Jew. Leave me alone.” The officers removed defendant’s
handcuffs so Benjamin could take his vitals but cuffed his wrists to the rails of the hospital bed.
Defendant continued to yell profanities and insults at Benjamin as she put an oxygen mask on
him, and he threatened to spit on people. Defendant’s wrists and legs were eventually placed in
soft restraints. Benjamin noticed that defendant’s oxygen mask had slipped and went to readjust
the mask. At this point, the soft restraints were on defendant’s ankles only and had not been
attached to the bed. As she adjusted his mask, defendant pivoted his hips, raised his knees to his
chin, and kicked Benjamin in the middle of her chest with his feet. She flew backwards 12 or 15
feet and bounced off the counter. The officers handcuffed defendant and placed him under arrest.
Benjamin returned to the room and continued to render care to defendant.
¶ 11 On cross-examination, Officer Cummens stated that he did not recall the exact words
defendant used when he saw him in the bedroom but knew that defendant was yelling
profanities. He did not recall whether defendant was unconscious at any point and denied telling
defendant that he was “never going to see [his mother] again” and that “she’ll have maggots
crawling on her.”
¶ 12 Dr. Kenneth Barrick testified that he was working in the emergency room at Our Lady of
Resurrection Hospital on January 27, 2014, wearing scrubs and an identification badge, when he
observed defendant brought in by two officers. Defendant was rocking back and forth, crying,
-5­
No. 1-15-0149
and cursing. He tried to calm defendant, but defendant continued to rock back and forth,
expressing disbelief over his mother’s death and using “lots of curse words and expletives.”
Defendant was placed in room number 7 to isolate him from other patients in the emergency
room due to his loud and aggressive behavior.
¶ 13 Dr. Barrick testified that Benjamin was assigned to defendant’s care. She also wore
scrubs and an identification badge. Benjamin introduced herself to defendant and told him she
would be taking care of him. Defendant called her names and told her to “f*** off.” Benjamin
wanted to take defendant’s vitals so personnel repositioned defendant’s arms from behind his
back to either side of the bed. Defendant continued to shout profanities at Benjamin and although
Dr. Barrick tried to de-escalate the situation, defendant focused his aggressions on her. Dr.
Barrick ordered physical restraints and chemical restraints consisting of benzodiazepine, Haldol,
and Benadryl. Dr. Barrick stated that even after a second injection, defendant remained
aggressive. He did not recall whether defendant made suicidal threats in his presence but was
concerned about defendant being suicidal.
¶ 14 Dr. Barrick was present in the room when defendant was placed in soft restraints.
Defendant’s upper extremities were restrained first, and Benjamin began to secure his lower
extremities by placing restraints on his ankles. She noticed, however, that defendant’s oxygen
was low, and she went to the head of the bed to adjust his oxygen mask. As she leaned over to
place the mask on his face, defendant brought his knees up to his chest, turned toward Benjamin
and kicked her in the chest. She flew back 8 to 10 feet and struck the cabinets behind her very
hard. She stepped out of the room for a moment but returned about a minute later to take care of
defendant. Dr. Barrick described Benjamin upon her return as “beyond calm.”
-6­
No. 1-15-0149
¶ 15 On cross-examination, Dr. Barrick stated that he did not ask defendant if he knew where
he was or what was going on, but based on defendant’s response to his initial questions, Dr.
Barrick concluded that defendant was lucid enough to understand his questions. Dr. Barrick
smelled alcohol on defendant but when defendant asked whether he thought defendant was
drunk, the trial court reminded defendant of its ruling that the evidence was not relevant because
voluntary intoxication is not a defense in Illinois. The trial court also sustained objections to
defendant’s question whether alcohol may have contributed to his emotional distress and his
attempt to question Dr. Barrick regarding his experience handling intoxicated patients.
¶ 16 Dr. Barrick further testified that when he first saw defendant, he conducted a patient
assessment for which he drew blood and conducted a urine toxicology screen. The assessment
revealed that defendant tested positive for cannabis and his blood alcohol levels were “244.” The
trial court sustained objections to defendant’s question of whether the administered medications
would react with alcohol and whether alcohol had something to do with defendant’s behavior.
Defendant replied that he was referring to his state of mind, and the trial court explained that
voluntary intoxication is not a legal defense.
¶ 17 Benjamin testified that on January 27, 2014, she was working at the emergency
department of Our Lady of Resurrection Hospital. She wore scrubs and a badge that identified
her as a registered nurse. She observed defendant in a wheelchair, accompanied by two officers
and two firefighters. Defendant appeared extremely agitated and was screaming profanities. She
overheard defendant ask for a glass of water and she offered one to him. Since he was
handcuffed, she held the cup for defendant while he drank. Defendant was taken to room number
7 and Benjamin was assigned to his case.
-7­
No. 1-15-0149
¶ 18 In the room, Benjamin introduced herself to defendant and told him she would be taking
care of him. Two police officers, a hospital security guard, and Dr. Barrick were also in the
room. She tried to take defendant’s vitals, and defendant called her “a stupid Jew and a dirty
b***.” Defendant refused to answer any questions and continued to use profanities and insult
Benjamin. She asked the officers to remove defendant’s handcuffs so she could take his vitals,
and they proceeded to restrain his hands to the side rails of the gurney instead. As they did so,
defendant looked at Benjamin and said, “[D]on’t touch me you dirty Jew. You’re a f*** Jew. I
know you’re a Jew because your eyes are close together.” Defendant continued to thrash around
and call her names, and she could not take his vitals.
¶ 19 Defendant then made spitting sounds and threatened to spit on everyone in the room. A
mask was put on his face but he pulled it down. Dr. Barrick ordered chemical restraints which
are medications to help a patient relax when they are a danger to themselves or others. Benjamin
administered the chemical restraints via injection in defendant’s left thigh. Defendant then told
her, “[D]o it again, b***.” The injection did not appear to calm defendant. Benjamin then
administered the physical restraints starting with defendant’s wrists. As she did so, defendant
said, “[D]on’t touch me you stupid b***, f*** you, you f*** b***.” After defendant’s wrists
were secured, Benjamin started to put restraints on defendant’s ankles. Before she could do so,
she noticed that his oxygen saturation level was dropping so she retrieved an oxygen mask and
tried to put it on defendant. She leaned over him and as she placed the mask on his head
defendant “pulled his knees into his chest, pivoted his hips and kicked [her] in the chest with
both feet.” She flew back 8 to 10 feet where she struck a counter and hit an oxygen cylinder
before landing on her chest. She got up and left the room. She was in pain and felt scared, angry,
and frustrated. However, she soon returned to room number 7 to continue defendant’s treatment.
-8­
No. 1-15-0149
¶ 20 On cross-examination, Benjamin stated that she did not remove defendant’s clothes nor
was she in the room when they were removed. She testified that defendant’s blood alcohol level
was 0.244 and she knew he was intoxicated. She placed a catheter on defendant to obtain a urine
sample and to ensure that he was not under the influence of drugs.
¶ 21 Defendant testified in his defense. He stated that on January 27, 2014, he was hysterical
and crying when paramedics arrived to render aid to his mother. He recalled Officer Sanchez and
that he felt “safe” around him and felt no “resentment towards anybody at that point.” Defendant
remembered being in his mother’s room, lying on her bed, and looking up to see Officer Sanchez
there. He asked the officer what was going on and the officer told him they were there to render
aid to his mother. Defendant remembered being handcuffed and he could not stand. He stated
that he “had been drinking that day” and “had been drinking for the whole year of 2013.”
Defendant then talked about how he began to drink on New Year’s Eve of 2012, how 2013 “was
pretty much a blur,” and the State objected. The trial court sustained the State’s objection.
¶ 22 Defendant testified that he remembered “being escorted out of the house—before that, I
remember being sat down at the couch” and the paramedic told him that there was nothing they
could do. Defendant started crying and became hysterical. He recalled being taken out of the
house and that “we need to take you to the hospital, or something to that effect.” They left out
the back door, and he noticed that the door leading to his attic apartment “was wide open.” He
remembered “closing it before [he] left because [his] mom always closed the door, and it got
cold for her. So [he] closed the door.”
¶ 23 Defendant did not recall walking to the ambulance, but he remembered riding in the
ambulance with the sirens on. The paramedic asked his name and “all of a sudden it kicked in
why [he] was there. [He] realized that [his] mother had passed, and [he] started crying again.”
-9­
No. 1-15-0149
Defendant did not remember being taken out of the ambulance, but he recalled being in the
emergency room and Dr. Barrick talking to him. Defendant said, “please, somebody, just
euthanize me. Please put me out of my misery. I’m suffering here.” He recalled being in room 7
and having a “dialogue with Officer Cummens.” Defendant stated that the dialogue was not
serious. They were going back and forth, with Officer Cummens calling defendant a “momma’s
boy” and that he “should man up.” The officer called defendant a “p***” and defendant told
Officer Cummens that he was “a parasite” and “a drain on taxpayers.” Defendant testified that he
was “trying to be intelligent about it” and did not call the officer names. He was no longer crying
as the conversation “got [his] mind off what was going on.”
¶ 24 At this point, Benjamin walked in and asked, “Who’s a momma’s boy?” Defendant
responded, “Great. Look. A Jew.” Defendant testified that when she walked in, he “didn’t know
[she] was Ms. Benjamin at that time. She never identified herself to [him] at that time.” He and
Benjamin continued back and forth, and defendant “didn’t feel safe.” He told Benjamin that she
was overweight. Someone then said defendant needed to be restrained and he refused. He told
them he did not “want to be restrained” and that he wanted to leave. He remembered that an
officer and his partner were in the room. Although they did not speak to him, defendant recalled
that Benjamin “was definitely antagonistic. She was going back and forth with [him.] She was
not a professional nurse, and [he] did not feel like [he] was among professionals.”
¶ 25 Defendant testified that Benjamin walked in with a syringe and a bottle and she injected
him. He stopped moving while she injected the medicine “because if the needle [broke] in [his]
leg, [it was] going to be an issue.” He felt a little better after the injection so he asked Benjamin
to “please give me another shot.” She injected him again and defendant “was out.” When he
awoke, his clothes “were completely gone” and a tube was inserted into his penis. Officer
- 10 ­
No. 1-15-0149
Cummens said, “How do you feel, tough guy?” He told defendant that his mother was gone and
he would never see her again. Defendant stated that he did not break out of the restraints.
¶ 26 On cross-examination, defendant stated that he recalled being at the hospital but also that
at times he did not know whether he was at the hospital or in the emergency room. He did not
recall Benjamin introducing herself to him, nor could he recall that she told him she was his
nurse. He acknowledged that at certain points, [he] was probably aware of [his] surroundings.”
Defendant did not recall being transferred from a wheelchair to a gurney or kicking Benjamin in
the chest. Defendant stated that he could not raise his legs to kick Benjamin because he was
restrained.
¶ 27 During closing argument, defendant argued that he was “unreceptive” on that day due to
the circumstances. He argued that he was “taken from [his] home, brought to a hospital, and [he]
was injected with drugs, and at that time the State and the witnesses allege [he] kicked this
nurse.” He argued that “if a patient is not in control of his faculties and his psychological issues,
how can that patient be responsible?” He claimed he could not have known the circumstances of
that day in the hospital because of his severe emotional distress in finding his mother dead and
his state of intoxication. The trial court sustained the State’s objection, reminding defendant that
voluntary intoxication was not a defense. The jury was also given Illinois Pattern Jury
Instructions, Criminal, No. 24-25.02 (4th ed. 2000) (hereinafter IPI Criminal 4th), which stated
that voluntary intoxication is not a defense. The trial court refused defendant’s request to instruct
the jury on the lesser included offense of battery, finding that the evidence established Benjamin
was a nurse. After deliberations, the jury found defendant guilty of aggravated battery.
¶ 28 Defendant filed a motion for a new trial. He argued that the trial court’s statement during
cross-examination that voluntary intoxication is not a defense misled the jury to believe
- 11 ­
No. 1-15-0149
defendant’s state of mind was not an issue. Also, defendant argued the trial court erred in giving
IPI Criminal 4th No. 24-25.02 and in failing to instruct the jury on the offense of simple battery.
The trial court denied defendant’s motion and he was sentenced to 50 months’ imprisonment
followed by one year of mandatory supervised release. Defendant filed this timely appeal.
¶ 29 ANALYSIS
¶ 30 Defendant contends he was denied his right to argue at trial that he did not possess the
requisite mens rea for aggravated battery, where the trial court found evidence of his state of
intoxication irrelevant and barred him from presenting such testimony. A defendant has the right
to present a defense and to present his version of the facts to the jury. People v. Manion, 67 Ill.
2d 564, 576 (1977). However, the admissibility of evidence at trial is ultimately within the sound
discretion of the trial court, and a reviewing court will not disturb the trial court’s determination
absent an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 364 (1991). An abuse of
discretion occurs where the court’s decision is arbitrary, fanciful, or unreasonable or where no
reasonable person would take the view adopted by the court. Id.¶ 31 Defendant was charged with aggravated battery under section 12-3.05(d)(11) of the
Criminal Code (720 ILCS 5/12-3.05(d)(11) (West 2014)), which provides that a person commits
this offense “when, in committing a battery,” “he or she knows the individual battered to be” a
“nurse while in the performance of his or her duties as a nurse.” On appeal, defendant argues that
he wanted to present evidence of his intoxication in order to show that, in his inebriated state, he
did not know Benjamin was a nurse. The State, however, argues that the trial court correctly
found this evidence irrelevant because voluntary intoxication is no longer a defense under
Illinois law.
- 12 ­
No. 1-15-0149
¶ 32 The State points to section 6-3 of the Criminal Code, which provides that “[a] person who
is in an intoxicated or drugged condition is criminally responsible for conduct unless such
condition is involuntarily produced and deprives him of substantial capacity either to appreciate
the criminality of his conduct or to conform his conduct to the requirements of law.” 720 ILCS
5/6-3 (West 2014). The State contends, pursuant to this provision, that a person in an intoxicated
condition is not criminally responsible for conduct only if the condition is involuntarily
produced. Our primary goal in interpreting a statute is to ascertain and give effect to legislative
intent, expressed by the statute’s plain and ordinary language. Lawler v. University of Chicago
Medical Center, 2017 IL 120745, ¶ 12. Where the statute’s terms are clear and unambiguous, a
court may not read into it exceptions, limitations, or conditions not expressed by the legislature.
Id.¶ 33 We agree with the State’s interpretation and with its argument that because section 6-3
does not mention voluntary intoxication, that condition cannot be a defense to criminal conduct
under the statute. This interpretation also corresponds with the general principal under Illinois
law that “voluntary intoxication is not a defense to a criminal charge.” People v. Redmond, 265
Ill. App. 3d 292, 302 (1994). We do not find, however, that the omission of voluntary
intoxication in section 6-3 means this condition is never relevant in a criminal proceeding.
Rather, a person’s state of voluntary intoxication may be relevant in the commission of specific
intent crimes, which “require proof of an additional special mental element.” People v. Robinson,
379 Ill. App. 3d 679, 684 (2008). Courts have long recognized that “where voluntary intoxication
is so extreme as to suspend entirely the power of reasoning,” a defendant is incapable of forming
a specific intent or malice. People v. Cunningham, 123 Ill. App. 2d 190, 209 (1970) (and cases
cited therein). It follows that if aggravated battery is a specific intent offense, defendant’s state of
- 13 ­
No. 1-15-0149
voluntary intoxication is relevant to negate that specific intent, even if it does not provide an
affirmative defense against his criminal conduct.
¶ 34 Our appellate districts are split on whether aggravated battery is a specific intent offense.
See People v. Conley, 187 Ill. App. 3d 234, 241 (1989) (listing cases showing the split and
finding that inconsistent decisions exist within the First District). However, we need not decide
the issue here because regardless of whether aggravated battery is a specific intent crime, the
criminality of defendant’s conduct depends on whether he acted knowingly or intentionally.
People v. Phillips, 392 Ill. App. 3d 243, 258 (2009). The evidence presented at trial, including
defendant’s own testimony, shows that he had the requisite knowledge to commit aggravated
battery under section 12-3.05(d)(11), notwithstanding his intoxicated state.
¶ 35 “Knowledge, due to its very nature, is ordinarily proven by circumstantial evidence,
rather than by direct proof.” People v. Smith, 124 Ill. App. 3d 243, 248 (1984). To prove
knowledge by circumstantial evidence, the State must present sufficient facts from which an
inference of knowledge can be made. In re Keith C., 378 Ill. App. 3d 252, 260 (2007). To
convict defendant of aggravated battery under section 12-3.05(d)(11), the State must show that
defendant kicked Benjamin knowing she was a nurse performing her duties. 720 ILCS
5/12-3.05(d)(11) (West 2014). Defendant argues that he did not know Benjamin was a nurse
because she never introduced herself as such and, furthermore, he could not comprehend his
surroundings or circumstances due to his compromised mental state. The evidence presented at
trial contradicts defendant’s claims.
¶ 36 Testifying for the State, Officer Cummens, Dr. Barrick, and Benjamin all stated that
Benjamin introduced herself to defendant as a nurse who would be caring for him. They also
testified that as Benjamin tried to put an oxygen mask on defendant, he pulled up his knees,
- 14 ­
No. 1-15-0149
turned his legs toward her chest and kicked her. Defendant contends he did not comprehend what
was happening. However, he testified that he knew why the paramedics and officers were at his
residence, he recalled being moved from a sofa to another room, and he recalled being led out of
a back door to an ambulance. Defendant noticed that the door leading to his attic apartment “was
wide open,” and he remembered “closing it before [he] left because [his] mom always closed the
door, and it got cold for her. So [he] closed the door.” Defendant recalled riding in the
ambulance and being in the emergency room of the hospital. He recounted in detail the dialogue
he had with Officer Cummens, who called defendant a “momma’s boy,” and stated that he was
“trying to be intelligent about it.” He stopped crying as the conversation “got [his] mind off what
was going on.” He recalled talking with Dr. Barrick and cursing at Benjamin, calling her a
“Jew.” He stated that Benjamin “was not a professional nurse, and [he] did not feel like [he] was
among professionals.” Defendant recalled that she came in with a syringe and injected him, and
since he felt a little better after the injection, he asked her for another one. Although he was
agitated, defendant stopped moving while Benjamin injected the medicine “because if the needle
[broke] in [his] leg, [it was] going to be an issue.”
¶ 37 The detail and extent of defendant’s recall show an acute awareness of his surroundings
and disprove any notion that he did not know Benjamin was a nurse when he kicked her. People
v. Madej, 106 Ill. 2d 201, 216-17 (1985); People v. Smith, 195 Ill. 2d 179, 195 (2000).
Defendant’s conduct does not support his argument that he lacked “the mental state of
knowledge” for aggravated battery due to his intoxication. People v. Weir, 111 Ill. 2d 334, 340
(1986). Given the overwhelming evidence of defendant’s guilt, any error the trial court may have
committed by barring evidence of his mental state of intoxication was harmless. See People v.
Patterson, 217 Ill. 2d 407, 428 (2005).
- 15 ­
No. 1-15-0149
¶ 38 Furthermore, defendant was not deprived from presenting his theory of defense. A
defendant has the right to present a defense and to present his version of the facts to the jury.
Manion, 67 Ill. 2d at 576. At the hearing on the State’s motion in limine, defendant stated his
theory of defense was “that this never happened, this incident never occurred.” He testified in his
defense that after he received a second injection, he “was out.” Defendant stated that he did not
break out of the restraints. On cross-examination, he reiterated that he could not raise his legs to
kick Nurse Benjamin because he was restrained. Defendant also testified that due to his extreme
emotional distress, he was not always aware of his surroundings. He did not recall being
transferred from a wheelchair to a gurney, or kicking Nurse Benjamin in the chest. Numerous
State witnesses testified as to defendant’s agitated, distressed state, and defendant was able to
cross-examine witnesses about whether defendant appeared to know what was happening around
him. Defendant also managed to present evidence that he had been drinking heavily, and that his
blood alcohol level measured at .244. This evidence allowed the jury to consider defendant’s
version of the incident; therefore, he was not denied an opportunity to present crucial matters
explaining his actions. Id. at 577.
¶ 39 Next, defendant contends the trial court erred when it instructed the jury, over his
objection, that “[a] voluntarily intoxicated condition is not a defense to the charge of aggravated
battery.” Defendant argues that the instruction is an inaccurate statement of the law, since
voluntary intoxication can negate a specific intent, and it misled the jury into thinking “it could
not consider [defendant’s] intoxication at all.” Whether to give a particular jury instruction is
within the sound discretion of the trial court, and the court “does not abuse its discretion so long
as, ‘taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the
relevant legal principles.’ ” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d
- 16 ­
No. 1-15-0149
147, 203 (2006) (quoting Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d
260, 273-74 (2002)). However, whether a jury instruction correctly states the law is a question
we review de novo. People v. Pierce, 226 Ill. 2d 470, 475 (2007).
¶ 40 As we discussed above, “voluntary intoxication is not a defense to a criminal charge.”
Redmond, 265 Ill. App. 3d at 302. Also, although voluntary intoxication can negate specific
intent, courts disagree on whether or not aggravated battery is a specific intent offense. In fact, a
recent first district case found that aggravated battery was not a specific intent offense. See
People v. Brown, 2015 IL App (1st) 134049, ¶ 44. Furthermore, the trial court’s instruction did
not inform the jury it could not consider defendant’s intoxication at all, only that voluntary
intoxication cannot be a defense to the charge of aggravated battery. We find that the trial court’s
instruction accurately stated the law.
¶ 41 The trial court also did not abuse its discretion in giving the instruction. Although the
court did not allow defendant to present evidence of his intoxicated state as a defense to the
charge of aggravated battery, it did allow evidence showing that he was intoxicated. Defendant
testified that he had been drinking that day. Dr. Barrick testified that he smelled alcohol on
defendant. He further testified that when he first saw defendant, he conducted a patient
assessment for which he drew blood and conducted a urine toxicology screen. The assessment
revealed that defendant tested positive for cannabis and his blood alcohol level was “244.” Nurse
Benjamin testified that defendant’s blood alcohol level was 0.244 and she knew he was
intoxicated. As such, “the State was entitled to an instruction that protected against adverse
inferences which might have been drawn from” this evidence of intoxication. People v. Johnson,
110 Ill. App. 3d 965, 969 (1982).
- 17 ­
No. 1-15-0149
¶ 42 Next, defendant argues that the trial court should have instructed the jury on the
lesser-included offense of simple battery where defendant testified that he did not know
Benjamin was a nurse. Defendant correctly points out that “[a]n instruction on the
lesser-included offense is appropriate where the charged greater offense requires the jury to find
a disputed factual element that is not required for conviction of the lesser-included offense.”
People v. Garcia, 188 Ill. 2d 265, 284 (1999). Such an instruction is proper where slight
evidence exists that tends to prove the lesser-included offense rather than the greater. Id. at
284-85. The question is whether any evidence was presented at trial supporting this instruction.
¶ 43 Contrary to his argument on appeal, defendant did not testify at trial that he was unaware
Benjamin was a nurse. Rather, he testified that when she walked in, he “didn’t know [she] was
Ms. Benjamin at that time. She never identified herself to [him] at that time.” Defendant was
referring to the fact that she did not tell him her name, not whether she was a nurse. The
circumstantial evidence shows that defendant clearly knew Benjamin was a nurse. He never
questioned why she was in his hospital room or why she was using a syringe to inject him with
medicine. He even asked her to administer more medicine after he began to feel better from the
first injection. When speaking of her during his testimony, defendant stated that Benjamin “was
not a professional nurse, and [he] did not feel like [he] was among professionals” when he
interacted with her. Throughout his testimony and his cross-examination of the State’s witnesses,
defendant never questioned her status as a nurse. “Where the evidence undisputedly satisfies the
elements which distinguish aggravated battery from simple battery, no simple battery instruction
is required to be given.” People v. Krone, 98 Ill. App. 3d 619, 623 (1981).
¶ 44 Even if the trial court erred in refusing to instruct the jury on the offense of simple
battery, a new trial is warranted only if defendant is prejudiced by the error. Dahan v. UHS of
- 18 ­
No. 1-15-0149
Bethesda, Inc., 295 Ill. App. 3d 770, 777 (1998). As discussed above, the overwhelming
evidence presented at trial shows that defendant kicked Nurse Benjamin while knowing at the
time that she was a nurse performing her duties. We find no reversible error here.
¶ 45 Finally, defendant argues that his mittimus should be corrected to reflect the proper
offense of which he was convicted. Presently, his mittimus shows a conviction of aggravated
battery pursuant to section 12-3.05(d)(5) (720 ILCS 5/12-3.05(d)(5) (West 2014)), which refers
to battery against a “judge, emergency management worker, emergency medical technician, or
utility worker.” The State agrees that the mittimus should be corrected to reflect defendant’s
conviction for aggravated battery of a registered nurse pursuant to section 12-3.05(d)(11) (id.
§ 12-3.05(d)(11)). Therefore, we should order the clerk of the court to correct defendant’s
mittimus to reflect his conviction for aggravated battery under section 12-3.05(d)(11) of the
Criminal Code.
¶ 46 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 47 Affirmed.
- 19 ­