People v. McGhee , 2023 IL App (4th) 220368-U ( 2023 )

NOTICE 2023 IL App (4th) 220368-UThis Order was filed under
FILED
NO. 4-22-0368 January 31, 2023
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT 4th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Lee County
No. 20CF202
ERIC McGHEE, )
Defendant-Appellant. )
) Honorable
) Jacquelyn D. Ackert,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed in part and remanded with directions, concluding
(1) the evidence was sufficient to convict defendant of official misconduct and
(2) defendant’s convictions for aggravated battery and official misconduct
violated the one-act, one-crime doctrine.
¶2 Defendant, Eric McGhee, appeals from his convictions for aggravated battery
(720 ILCS 5/12-3.05(c) (West 2020)) and official misconduct (720 ILCS 5/33-3(a)(2) (West
2020)) following a bench trial. On appeal, defendant argues (1) the State failed to prove him
guilty of official misconduct beyond a reasonable doubt and (2) alternatively, his convictions
violate the one-act, one-crime doctrine. The State argues the evidence was sufficient to convict
defendant of official misconduct beyond a reasonable doubt and his convictions do not violate
the one-act, one-crime doctrine. We conclude (1) the State’s evidence was sufficient to convict
defendant of official misconduct and (2) defendant’s convictions violate the one-act, one-crime
doctrine. We affirm in part and remand to the trial court with directions that it determine which
of defendant’s convictions to vacate as the less serious offense.
¶3 I. BACKGROUND
¶4 A. Defendant’s Charges
¶5 In August 2020, the State charged defendant by information with one count of
aggravated battery, a Class 3 felony (720 ILCS 5/12-3.05(c) (West 2020)) (count I), one count of
official misconduct, a Class 3 felony (720 ILCS 5/33-3(a)(2) (West 2020)) (count II), and one
count of abuse of a long-term health care facility resident, a Class 3 felony (720 ILCS
12-4.4a(a)(2) (West 2020)) (count III). Count I alleged defendant committed aggravated battery
in that he, “in committing a battery ***, and while L.M. (07/22/1966) was at the Jack Mabley
Developmental Center [Jack Mabley], a public property, did knowingly cause physical contact of
an insulting or provoking nature, in that said defendant picked up L.M. from a wheelchair and
threw L.M. onto a toilet.” Count II alleged defendant committed official misconduct in that
“defendant, a public employee, a Mental Health Technician at [Jack Mabley] , an Illinois
Department of Human Services facility, while acting in his official capacity, knowingly
performed an act which he knew was forbidden by law to perform, in that he committed the
offense of Battery ***, by picking up L.M. (07/22/1966) from a wheelchair and throwing L.M.
onto a toilet, causing insulting or provoking contact.” In March 2021, the State filed a motion to
voluntarily dismiss count III, which the trial court allowed.
¶6 B. Bench Trial
¶7 After waiving his right to a jury trial, on March 21, 2022, defendant proceeded to
a bench trial on counts I and II. The relevant evidence adduced at trial follows.
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¶8 1. State’s Case-in-Chief
¶9 a. Jacquelynn Washington
¶ 10 Jacquelynn Washington testified she was employed as a certified nursing assistant
(CNA) with the staffing agency Maxim Healthcare (Maxim). On June 9, 2020, Maxim had
assigned Washington to work as a “home health aide,” which was “basically CNA work,” at a
facility in Dixon, Illinois (later identified as Jack Mabley). The facility was comprised of various
residential buildings, which housed developmentally disabled persons. On that evening,
Washington was to work from 7 p.m. to 7 a.m. and was assigned to a residence which housed
women. Washington had worked at that residence on several other occasions and testified it
contained around 7 to 10 bedrooms and housed between seven or eight residents at the time.
¶ 11 Washington testified L.M. was a resident at this facility. Washington identified a
photograph of L.M. and agreed it adequately depicted the way L.M. looked on June 9, 2020, with
the exception that when Washington met her, she “was in a recliner, and she had on a boot.”
L.M.’s boot was a type commonly used for medical purposes. When asked to describe L.M.,
Washington stated, “She was confused. She did not say much. She slept a lot. She was a
two-person assist. She needed help eating and for evening snack.” Washington clarified that a
“[t]wo-person assist means you need two CNAs to assist the persons, as far as mobility-wise, to
the washroom, to the bed.” Washington testified defendant, whom she had not met before June 9,
2020, was also working at the facility that night. Defendant was a “regular staff member” of the
facility who was specifically assigned to L.M. as an “assistant or CNA.”
¶ 12 That evening, defendant asked Washington to assist him in taking L.M. to the
bathroom and putting her to bed. L.M. was in a wheelchair, and defendant and Washington
brought her into the bathroom. Washington testified, “I remember him taking—[defendant]
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taking [L.M.]’s shirt off. I remember him taking her boot off, [and] throwing it towards the
wall.” After removing the rest of her clothing, defendant then “pick[ed] [L.M.] up by the arms
and kind of thr[ew] her on the toilet.” Washington explained, “[I]t wasn’t like a stand, pivot,
which as a CNA we learn. It was like, a stand, pivot, throw because there’s a bar right there, and
she kind of hit the bar, and he kind of fixed her to sit on the toilet.”
¶ 13 After L.M. was seated on the toilet, defendant then began to “spray her with the
shower hose,” which Washington had never seen before. Washington testified, “As he was
showering her he began to say derogatory things towards her. Basically said, [‘]No man will ever
want you with your stuff smelling like that,[’] and he’s spraying her and kind of laughing.”
When defendant allegedly said this, he was showering her vaginal area. While defendant
continued to shower L.M., Washington briefly left to get towels. Washington and defendant
dressed L.M. and returned her to her wheelchair.
¶ 14 Afterwards, Washington went to the facility’s main office to report what she
observed to the supervisor. Washington worked at the facility one other time, after which the
facility ceased working with Maxim.
¶ 15 b. Sergeant Kyle Bocka
¶ 16 Sergeant Kyle Bocka of the Illinois State Police also testified for the State.
Sergeant Bocka testified his job was to investigate state employees in the executive branch who
are accused of committing crimes on state time. According to Sergeant Bocka, Jack Mabley is
an assisted living facility in Dixon, Illinois, and houses people with physical and mental
disabilities. The facility is owned by the State of Illinois under the purview of the Illinois
Department of Human Services (DHS) and staffed by both state employees and contractors.
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¶ 17 In Sergeant Bocka’s role, he investigated defendant in connection with the events
in this case. Sergeant Bocka interviewed defendant at the Dixon police station and informed him
he was accused of abuse. Defendant did not recall having any negative interactions with
Washington and could not provide a reason why she might make allegations against defendant if
they were untrue. Defendant’s version of events was mostly consistent with Washington’s, with
the exception of his “throwing or hip tossing [L.M.] onto the toilet or onto the bed,” which
defendant denied.
¶ 18 The State rested, and defendant moved for a directed verdict. The trial court
denied the motion, and defendant proceeded with his evidence.
¶ 19 2. Defendant
¶ 20 Defendant testified on his own behalf. On June 9, 2020, defendant was employed
at Jack Mabley as a mental health technician I. He had worked there since approximately
October 2019. In his role, he “provide[d] direct care for individuals such as toileting, showers
and feeding and bathing and things of *** that sort.” He had provided care to L.M. once before
June 9 and knew she was a “two-person assist.”
¶ 21 That night, defendant requested Washington’s assistance with taking L.M. to the
bathroom to shower. According to defendant, it took Washington “about five minutes to
respond,” and “it appeared that she had an attitude because she didn’t want to assist *** with
putting [L.M.] in the [wheel]chair.” Washington was “sitting there playing on her phone.” L.M.
needed to use a wheelchair because “she had a boot on” and was not able to walk on her own.
After entering the bathroom, defendant recalled removing L.M.’s clothes and boot but did not
recall throwing the boot. Defendant and Washington performed a two-person assist, which
involved lifting her from her underarms and pivoting to place her on the toilet. Defendant then
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lathered and showered L.M. but denied making any comments to her about smelling or regarding
her vaginal area. Defendant also denied “throwing” L.M. from the wheelchair onto the toilet seat.
According to defendant, he had been trained to bathe “large” residents on the toilet rather than in
the shower.
¶ 22 On cross-examination, defendant agreed he was a state employee and Jack
Mabley was under the purview of DHS. When asked why Washington might have reason to
“make up” allegations against defendant, defendant responded that Washington “didn’t want to
help” him because she had been chatting with her colleagues and playing on her phone.
¶ 23 3. Verdict and Posttrial Motion
¶ 24 Following arguments, the trial court found defendant guilty of both aggravated
battery and official misconduct as alleged in counts I and II of the information. Specifically, the
trial court found Washington’s testimony to be credible and that defendant’s “[t]hrowing” L.M.
onto the toilet was “insulting or provoking in this instance.”
¶ 25 On December 2, 2021, defendant filed a motion for judgment of acquittal
notwithstanding the verdict, arguing, among other things, the State failed to prove defendant
guilty of aggravated battery and official misconduct beyond a reasonable doubt. Following a
March 21, 2022, hearing, the trial court denied defendant’s motion. Defendant was sentenced to
30 months’ probation on both counts and 90 days in the county jail, which was stayed subject to
diminution. Defendant was further ordered not to have contact with L.M. or work in any capacity
with vulnerable persons with developmental disabilities.
¶ 26 On May 3, 2022, defendant filed a motion for leave to file a late notice of appeal,
which this court granted. On May 6, 2022, defendant filed a late notice of appeal in sufficient
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compliance with Illinois Supreme Court Rule 606(c) (eff. July 1, 2017). Thus, we have
jurisdiction of defendant’s appeal under Illinois Supreme Court Rule 603 (eff. Feb. 3, 2013).
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 On appeal, defendant argues the State failed to prove him guilty of official
misconduct beyond a reasonable doubt and his conviction should be vacated. Alternatively,
defendant argues his convictions for both official misconduct and aggravated battery violate the
one-act, one-crime doctrine. In the event this court agrees with his alternative argument,
defendant contends this court should remand the case for the trial court to vacate whichever of
defendant’s convictions it determines is the less serious offense. The State argues the evidence
was sufficient to convict defendant of official misconduct and his convictions do not violate the
one-act, one-crime doctrine. We conclude the evidence was sufficient to convict defendant of
official misconduct but find his convictions violate the one-act, one-crime doctrine.
¶ 30 A. Sufficiency of the Evidence
¶ 31 We first address defendant’s argument the evidence was insufficient to convict
him of official misconduct because the State failed to prove he acted within his “official
capacity” beyond a reasonable doubt. The State argues it proved defendant acted within his
official capacity and therefore his conviction should be affirmed. We agree with the State.
¶ 32 Our supreme court has set forth the following standard of review for insufficiency
of the evidence claims:
“When considering a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found the required elements beyond
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a reasonable doubt. [Citation.] [I]t is not the function of this court to retry the
defendant. [Citation.] All reasonable inferences from the evidence must be drawn
in favor of the prosecution. [I]n weighing evidence, the trier of fact is not required
to disregard inferences which flow normally from the evidence before it, nor need
it search out all possible explanations consistent with innocence and raise them to
a level of reasonable doubt. [Citation.] We will not reverse the trial court’s
judgment unless the evidence is so unreasonable, improbable, or unsatisfactory as
to create a reasonable doubt of the defendant's guilt. [Citation.]” (Internal
quotation marks omitted.) People v. Newton, 2018 IL 122958, ¶ 24, 120 N.E.3d
948.
¶ 33 Under section 33-3(a)(2) of the Criminal Code of 2012 (Criminal Code) (720
ILCS 5/33-3(a)(2) (West 2020)), “[a] public officer or employee or special government agent
commits misconduct when, in his official capacity or capacity as a special government agent, he
or she *** [k]nowingly performs an act which he knows he is forbidden by law to perform.”
¶ 34 In this case, defendant concedes he committed aggravated battery but argues the
State failed to prove the element that he used his position, i.e., acted in his “official capacity,” to
further the commission of that crime. “[A]n act is performed in one’s official capacity if it is
accomplished by exploitation of his position as a public officer or employee.” (Internal quotation
marks omitted.) People v. Selby, 298 Ill. App. 3d 605, 615, 698 N.E.2d 1102, 1109 (1998). The
First District has explained this element as follows:
“[T]he key to proving a conviction for official misconduct is that the alleged
perpetrator actively used his or her position or official status to ‘[k]nowingly
perform an act which he knows he is forbidden by law to perform.’ [Citation.] In
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other words, it’s not enough that a defendant commits a crime when acting in an
official capacity; he must also use the very fact of his authority or position to
further the commission of that crime.” People v. Brogan, 352 Ill. App. 3d 477,
491-92, 816 N.E.2d 643, 655-66 (2004).
¶ 35 Here, the evidence supports a finding defendant used his position as a mental
health technician to further the commission of the aggravated battery against L.M. Defendant
contends he did not use his position to gain special access to L.M., but rather merely “committed
a battery while on duty as a state employee.” On the contrary, defendant only had access to L.M.
by virtue of his employment as a mental health technician at a facility operated by DHS.
Washington specifically testified that contract workers such as herself were not permitted
one-on-one access with the “more developmentally challenged persons” such as L.M. But for
defendant’s state employment, he would not have had occasion to commit the aggravated
battery. Defendant himself testified his duties as a mental health technician included bathing and
toileting residents. As alleged in the information, the act which constituted the aggravated battery
in this case was that defendant “picked up L.M. from a wheelchair and threw L.M. onto a toilet.”
Defendant directly used his job responsibility of toileting L.M. as a means to commit the act of
throwing her from the wheelchair onto the toilet. We conclude defendant’s status as a public
employee was integral to the offense of aggravated battery in this case, and the State therefore
proved he acted in his official capacity beyond a reasonable doubt.
¶ 36 B. One-Act, One-Crime Doctrine
¶ 37 Alternatively, defendant argues his convictions for both aggravated battery and
official misconduct violate the one-act, one-crime doctrine. Defendant further argues this court
should remand to the trial court with directions to vacate whichever of his two convictions it
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deems is the lesser offense. Defendant acknowledges he forfeited this issue by failing to raise it
at trial or in a posttrial motion. Defendant nonetheless argues we should review the issue for
plain error. The State argues no plain error occurred because defendant’s convictions do not
violate the one-act, one-crime doctrine. We agree with defendant.
¶ 38 1. Plain Error
¶ 39 The plain-error doctrine permits a reviewing court to consider unpreserved error
under the following two scenarios:
“(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,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” People v. Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1058 (2010).
¶ 40 The first step in conducting a plain-error analysis is to determine whether any
error occurred at all. People v. Merriweather, 2022 IL App (4th) 210498, ¶ 25. If error occurred,
the court then considers whether the defendant has satisfied his persuasive burden under either of
the two prongs. Merriweather, 2022 IL App (4th) 210498, ¶ 25. “If the defendant fails to meet
his or her burden of persuasion, the reviewing court applies the procedural default.”
Merriweather, 2022 IL App (4th) 210498, ¶ 25.
“An alleged one-act, one-crime violation is reviewable under the second prong of
the plain-error doctrine because it affects the integrity of the judicial process.
[Citation.] Although the one-act, one-crime rule is not of constitutional
dimension, its purpose is to prevent the prejudicial effect that could result in those
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instances where more than one offense is carved from the same physical act.”
(Internal quotation marks omitted.) People v. Wiley, 2022 IL App (4th) 210283,
¶ 52.
¶ 41 2. Whether Error Occurred
¶ 42 As stated above, we must first determine whether error occurred—i.e., whether
defendant’s convictions violate the one-act, one-crime doctrine.
¶ 43 “The one-act, one-crime rule prohibits convictions for multiple offenses that are
based on precisely the same physical act.” People v. Smith, 2019 IL 123901, ¶ 13, 155 N.E.3d
396. “The first step in this analysis requires us to determine whether the defendant’s conduct was
a single physical act or multiple acts.” People v. Kotero, 2012 IL App (1st) 100951, ¶ 20, 978
N.E.2d 315. For the purpose of the one-act, one-crime rule, our supreme court has defined an
“act” as “any overt or outward manifestation which will support a different offense.” People v.
King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). “[I]f a defendant commits multiple
acts, then multiple convictions may stand, provided that none of the offenses are lesser-included
offenses.” Kotero, 2012 IL App (1st) 100951, ¶ 19. We review an alleged violation of the
one-act, one-crime rule de novo. Smith, 2019 IL 123901, ¶ 15.
¶ 44 In determining whether defendant’s conduct was a single physical act or multiple
acts, we find the First District’s decisions in Kotero, 2012 IL App (1st) 100951, and People v.
Moshier, 312 Ill. App. 3d 879, 728 N.E.2d 822 (2000), to be instructive.
¶ 45 In Moshier, the defendant, who was a township supervisor, was charged with theft
and official misconduct after stealing $100,000 from his municipal employer. Moshier, 312 Ill.
App. 3d at 881. Upon his conviction for both offenses, the defendant sought vacatur of his
official misconduct conviction based upon the one-act, one-crime doctrine. Moshier, 312 Ill.
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App. 3d at 880. The First District agreed, concluding that because both counts of the indictment
were based on the same act (i.e., “converting ‘certain checks and money *** having a total value
in excess of $100,000’ ”), defendant was entitled to vacatur of his official misconduct
conviction. Moshier, 312 Ill. App. 3d at 882.
¶ 46 Similarly, in Kotero, 2012 IL App (1st) 100951, ¶ 3, the defendant, a village
parking enforcement officer, was charged with five counts of theft and official misconduct after
he “allegedly told several people whose vehicles had been booted that if they paid him a certain
amount of money in cash, then he would arrange to have the boot removed from their cars.” The
defendant was found guilty of all counts and appealed, arguing his convictions for both theft and
official misconduct violated the one-act, one-crime doctrine. Kotero, 2012 IL App (1st)
100951, ¶ 1. The First District again agreed with the defendant. Kotero, 2012 IL App (1st)
100951, ¶ 26. In concluding the defendant’s convictions violated the one-act, one-crime doctrine,
the First District specifically looked to the charging instruments, noting, “[t]he official
misconduct and aggregated theft charges were based on the same physical act, which was
stealing money over a two-month period that belonged to the Village.” Kotero, 2012 IL App
(1st) 100951, ¶¶ 22-26.
¶ 47 Like the Moshier and Kotero courts, we look to the charging instruments to
determine whether defendant’s aggravated battery and official misconduct convictions were
based on the same “act.”
¶ 48 As charged in this case, aggravated battery under section 12-3.05(c) of the
Criminal Code (720 ILCS 5/12-3.05(c) (West 2020)) occurs when a person, “in committing a
battery, other than by the discharge of a firearm, he or she is or the person battered is on or about
a *** public property.” In the information, the State alleged defendant committed this offense in
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that he, “in committing a battery in violation of 720 ILCS 5/12-3(a)(2), and while L.M.
(07/22/1966) was at [Jack Mabley], a public property, did knowingly cause physical contact of
an insulting or provoking nature, in that said defendant picked up L.M. from a wheelchair and
threw L.M. onto a toilet.”
¶ 49 As stated supra, official misconduct under section 33-3(a)(2) of the Criminal
Code occurs when a public employee, “in his official capacity ***, [k]nowingly performs an act
which he knows he is forbidden by law to perform.” 720 ILCS 5/33-3(a)(2) (West 2020). When
charging official misconduct under this section, the State is required to specify in the charging
instrument the law allegedly violated by the public employee. See Kotero, 2012 IL App (1st)
100951 (stating the same under a prior version of the official misconduct statute); see also
People v. Williams, 239 Ill. 2d 119, 127-28, 940 N.E.2d 50, 56 (2010) (“We have since repeated
that conclusion, holding an indictment charging official misconduct must, at a minimum, allege
facts that would show defendant violated an identifiable statute, rule, regulation, or tenet of a
professional code.” (Internal quotation marks omitted.)).
¶ 50 As charged in this case, the State alleged defendant committed official
misconduct in that he, “a public employee, a Mental Health Technician at [Jack Mabley], an
Illinois Department of Human Services facility, while acting in his official capacity, knowingly
performed an act which he knew was forbidden by law to perform, in that he committed the
offense of Battery in violation of 720 ILCS 5/12-3(a)(2), by picking up L.M. (07/22/1966) from
a wheelchair and throwing L.M. onto a toilet, causing insulting or provoking contact.”
¶ 51 Here, we conclude defendant’s convictions for both aggravated battery and
official misconduct cannot stand because they are both based solely on the same act of picking
up L.M. from a wheelchair and throwing her onto a toilet, causing insulting or provoking
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contact. Although the State argues defendant’s conduct “consisted of multiple acts” because he
threw L.M. twice, removed her clothes roughly, and “sprayed L.M.’s genitals with the
showerhead while laughing and making derogatory comments about her,” these additional acts
were not charged in the information.
¶ 52 The State further argues that even if we focus solely on the charging instruments,
“defendant’s conduct still consisted of multiple acts,” because he (1) picked L.M. up and
(2) threw her onto the toilet. We agree with defendant this argument fails under our supreme
court’s decision in People v. Crespo, 203 Ill. 2d 335, 343, 788 N.E.2d 1117, 1122 (2001). There,
the supreme court held that a single attack in which three stab wounds were inflicted could not
support convictions for both armed violence and aggravated battery where the State did not argue
at trial that each stab wound supported a separate offense, but rather portrayed the defendant’s
conduct as a single attack. Crespo, 203 Ill. 2d at 344-45. Here, similarly, the State treated
defendant’s conduct of (1) picking L.M. up from her wheelchair and (2) throwing her onto the
toilet as “a single attack” and made no attempt to apportion each action as a different crime in
charging defendant. Because the State chose to charge both counts based on the same “single
attack,” we conclude multiple convictions are improper.
¶ 53 In concluding defendant’s convictions violate the one-act, one-crime doctrine, we
find second-prong plain error occurred. See Wiley, 2022 IL App (4th) 210283, ¶ 52.
¶ 54 To remedy a violation of the one-act, one-crime doctrine, “sentence should be
imposed on the more serious offense and the less serious offense should be vacated.” People v.
Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686 (2009). “In determining which offense is the
more serious, a reviewing court compares the relative punishments prescribed by the legislature
for each offense.” Artis, 232 Ill. 2d at 170. “However, in situations where the degree of the
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offenses and their sentencing classifications are identical, [the supreme] court has also
considered which of the convictions has the more culpable mental state.” Artis, 232 Ill. 2d at
170-71. “[W]hen it cannot be determined which of two or more convictions based on a single
physical act is the more serious offense, the cause will be remanded to the trial court for that
determination.” Artis, 232 Ill. 2d at 177.
¶ 55 In this case, it cannot be determined which of defendant’s two challenged
convictions is the more serious offense. Both offenses are Class 3 felonies subjecting defendant
to the same range of penalties. See 720 ILCS 5/12-3.05(h) (West 2020) (classifying aggravated
battery as a Class 3 felony); see also 720 ILCS 33-3(c) (West 2020) (classifying official
misconduct as a Class 3 felony). Additionally, both offenses required defendant to act
“knowingly,” and thus required the same mental state. Under these circumstances, we remand
the matter to the trial court for a determination of which offense should be vacated under the
one-act, one-crime rule. See Artis, 232 Ill. 2d at 177.
¶ 56 III. CONCLUSION
¶ 57 For the reasons stated, we remand to the trial court with directions that it
determine which of defendant’s two convictions to vacate as the less serious offense pursuant to
the one-act, one-crime rule. We otherwise affirm the trial court’s judgment.
¶ 58 Affirmed in part; cause remanded with directions.
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