THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARETTA T. WILSON, Defendant-Appellant, 404 Ill. App. 3d 244

JUSTICE SCHMIDT delivered the opinion of the court: Defendant, Charetta T. Wilson, appeals her conviction for resisting a peace officer resulting in an injury to the officer. Specifically, she challenges: (1) the wording of a modified Illinois pattern jury instruction; and (2) her trial counsel’s effectiveness. FACTS Defendant proceeded to a jury trial on two charges: resisting a peace officer resulting in an injury to the officer (720 ILCS 5/31— l(a — 7) (West 2006)); and aggravated assault (720 ILCS 5/12 — 2(a)(6) (West 2006)).

Bradley Scott, a Peoria police officer, testified that on January 21, 2007, he was dispatched to a part of Peoria known as Niagra Alley. He was dressed in a standard police-issue uniform, and he observed a large crowd located in the alley. To make his way through the alley, he launched pepper balls at the legs and feet of individuals in the crowd. He then began assisting another officer, Sergeant Venzon, with crowd control when a glass bottle flew past the left side of his body. Venzon identified defendant as the person who threw the bottle. Scott consequently approached defendant and grabbed her arm.

Venzon and Scott attempted to pull defendant down the alley where other officers were located, but she refused to be handcuffed and did not comply with commands to put her hands behind her back. Scott pinned defendant against a wall to facilitate the handcuffing while another officer, Eric Betts, provided assistance. Defendant pushed against the wall and temporarily broke Scott’s grasp of her arm. Scott then grabbed defendant’s upper arm and forced her to the ground, whereupon she tried to pull her arms underneath her body to keep from being handcuffed.

While Scott tried to gain control of defendant’s left arm, defendant “rolled along with the pile” and pinned Scott’s arm against the ground. Ultimately, the officers were able to handcuff defendant and take her to a police car. Scott subsequently received treatment for a sprained wrist at Methodist Hospital. Officer Betts testified that when he arrived at the scene, he witnessed Scott attempting to arrest defendant, and he helped get defendant to the ground. Once on the ground, defendant was shifting from side to side. Betts pulled one of defendant’s arms from beneath her body and secured a handcuff to the arm.

Though he did not remember rolling with defendant or losing his balance, he did notice Scott grimace. He then saw someone throw another bottle that landed near him. Betts left to pursue the person who threw the bottle. Lashanda Marizetts testified that she and defendant went to Club 112, which was located in the alley, on January 21, 2007. Defendant had a cranberry juice and vodka but did not consume any beer or have any reason to possess a beer bottle. As the club was closing, a fight broke out. Marizetts and defendant began walking up the alley outside the club when a police officer grabbed defendant.

Marizetts said the officer threw defendant to the ground and placed his knee on her back. The officer then began striking defendant. Kecia Wilson, defendant’s sister, testified that she was with defendant and Marizetts at the club on January 21, 2007. Several fights broke out when the club closed. Wilson observed police officers grab defendant, and she testified that the officers would not tell defendant why they were arresting her. They took defendant to the ground and began punching her. Defendant was moving on the ground because the officers were on her back and pulling her hair.

Defendant testified that she and some friends went to the club to celebrate her birthday. When the club closed, she and her friends tried to leave, but due to several fights outside they waited until most of the club’s patrons had left. As they walked from the club, a police officer grabbed defendant’s arm. Defendant pulled her arm back, and the officer requested that she get against the wall with her hands behind her back. When defendant asked the officer what she had done, the officer threw her against the wall. Another officer then helped throw her to the ground.

Defendant said her hands were at her side and not behind her back. At the jury instruction conference, the State tendered a modified version of the Illinois pattern jury instruction for resisting a peace officer. The modified version added a fourth proposition to which defendant did not object. The trial court accepted the instruction as modified.

The instruction read: “To sustain a charge of Resisting or Obstructing a Peace Officer, the State must prove the following propositions: First Proposition: That Brad Scott was a peace officer; and Second Proposition: That the defendant knew Brad Scott was a peace officer; and Third Proposition: That the defendant knowingly resisted or obstructed the performance of Brad Scott of an authorized act within his official capacity; and Fourth Proposition: That the defendant’s act of resisting was a proximate cause of an injury to Brad Scott.” (Emphasis added.) At some point during its deliberations, the jury sent a note to the court inquiring: “May the propositions on resisting a peace officer be broken down into two separate counts.

Can the injury be separated from the resisting?” Defense counsel noted: “That’s the lesser included offense.” The court replied: “Obviously, no, you have chosen not to go there. My answer to this question would be no, you must deliberate based upon the charges before you.” The State and defense counsel both expressed satisfaction with that response. Ultimately, the jury acquitted defendant on the charge of aggravated assault but found her guilty of resisting a peace officer resulting in an injury to the officer. The trial court sentenced defendant to 18 months of conditional discharge. She appeals.

ANALYSIS Defendant claims she is entitled to a new trial since she “was prejudiced when an inaccurate non-pattern jury instruction was provided to the jury.” Defendant has forfeited this claim. It is well settled that a defendant forfeits review of any putative jury instruction error if she does not object to the instruction or offer any alternative instruction at trial and does not raise the particular instruction issue in her posttrial motion. People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005).

Defendant concedes she did not object to the instruction of which she now complains, nor did she raise any issues questioning its propriety in her posttrial motion. Nevertheless, defendant asserts that the claimed error “constitutes plain error and should be reviewed as such.” In the alternative, defendant asserts that “if the error of failing to properly instruct the jury is not plain error, it should be reviewed under the standard for ineffective assistance of counsel.” There can be no plain error if there was no error at all; counsel cannot be ineffective for failing to challenge a correct instruction.

See People v. Johnson, 218 Ill. 2d 125, 842 N.E.2d 714 (2005). Before we can address defendant’s claims of plain error and ineffective assistance, we must determine whether there was error in the first place. See Johnson, 218 Ill. 2d at 139. Defendant initially contends that the modified instruction incorrectly stated the law. The statutory language for the charged offense reads: “(

a) A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer or correctional institution employee of any authorized act within his official capacity commits a Class A misdemeanor. *** (a — 7) A person convicted for a violation of this

Section whose violation was the proximate cause of an injury to a peace officer is guilty of a Class 4 felony.” (Emphasis added.) 720 ILCS 5/31 — 1 (West 2006). Defendant argues that the definite

article (“the”) in the statute and the indefinite

article (“a”) in the jury instruction have different meanings — “the” being exclusive and “a” being inclusive. According to this argument, when the legislature used the phrase “the proximate cause” in the statute (resisting a peace officer), it was referring only to the single most immediate or direct cause. Therefore, defendant contends, the use of “a proximate cause” in the modified instruction permitted a finding of guilt based on a standard lower than the standard required by statute. Our primary objective in construing any statute is to determine and effectuate the legislature’s intent. Yang v.

City of Chicago, 195 Ill. 2d 96, 745 N.E.2d 541 (2001). A review of our legislature’s use of the phrase “the proximate cause” leads to the inescapable conclusion that it did not intend its use of the term to equate to the narrow definition argued by defendant.

The legislature has used the term “proximate cause” in 19 statutes. 65 ILCS 5/11 — 152—1 (West 2008); 215 ILCS 5/4 (West 2008); 605 ILCS 125/20 (West 2008); 625 ILCS 5/6 — 103 (West 2008); 625 ILCS 5/6 — 208 (West 2008); 625 ILCS 5/11 — 501 (West 2008); 625 ILCS 5/11 — 506 (West 2008); 625 ILCS 5/11 — 610 (West 2008); 625 ILCS 40/5 — 7 (West 2008); 625 ILCS 45/5 — 2 (West 2008); 625 ILCS 45/5 — 16 (West 2008); 720 ILCS 5/12 — 21.6 (West 2008); 720 ILCS 5/31 — 1 (West 2008); 735 ILCS 5/2 — 623 (West 2008); 735 ILCS 5/2— 1107.1 (West 2008); 735 ILCS 5/2 — 1116 (West 2008); 740 ILCS 180/2 (West 2008); 745 ILCS 10/3 — 109 (West 2008); 745 ILCS 43/15 (West 2008).

The phrase “a proximate cause” appears in 10 of these statutes and “the proximate cause” appears in 9. Nowhere within the Illinois Compiled Statutes does the legislature define “proximate cause,” “a proximate cause,” or “the proximate cause.” However, the legislature has used the phrase “more than 50% of the proximate cause” in at least two instances. (Emphasis added.) In

section 2 — 1107.1 of the Code of Civil Procedure, the legislature stated that, “[I]f the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause,” then the plaintiff is barred from recovery. (Emphasis added.) 735 ILCS 5/2 — 1107.1 (West 2008). Similarly, in

section 2(c)(2) of the Wrongful Death Act, the legislature again stated that if a beneficiary on whose behalf an action is brought “is more than 50% of the proximate cause of the wrongful death of the decedent,” then recovery is barred. (Emphasis added.) 740 ILCS 180/ 2(c)(2) (West 2008). QUERY: if the legislature intended “the proximate cause” to mean the “one most immediate” cause, then how can there ever be less than 100% of “the proximate cause”?

If use of the phrase “the proximate cause” means that there is but one singular cause of an injury, why would the legislature ever use the phrase “more than 50% of the proximate cause,” when to do so would render the phrase self-contradictory nonsense? A definition of proximate cause is, however, contained within Illinois Pattern Jury Instructions, Civil, No. 15.01 (Supp. 2009) (hereinafter IPI Civil (Supp. 2009)), which states: “When I use the expression ‘proximate cause,’ I mean a cause which, in the natural or ordinary course of events, produced the plaintiffs injury.

It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.” IPI Civil (Supp. 2009) No. 15.01. In light of this definition of “proximate cause,” changing the

article immediately preceding “proximate cause” from “a” to “the” does not change its definition. It matters not whether one speaks of “the” proximate cause or “a” proximate cause — the meaning is the same. The definition of the term controls any

article preceding it. This reading is consistent with the legislature’s use of the phrase “more than 50% of the proximate cause.” 735 ILCS 5/2 — 1107.1 (West 2008); 740 ILCS 180/2(c)(l), (c)(2) (West 2008). Our

interpretation of the statute and term finds support in our supreme court’s opinion in People v. Hudson, 222 Ill. 2d 392, 856 N.E.2d 1078 (2006). “In general, Illinois law provides that a defendant may be charged with murder pursuant to the ‘proximate cause’ theory of felony murder. People v. Lowery, 178 Ill. 2d 462 (1997). The term ‘proximate cause’ describes two distinct requirements: cause in fact and legal cause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999).

We have stated, ‘We believe that the analogies between civil and criminal cases in which individuals are injured or killed are so close that the principle of proximate cause applies to both classes of cases. Causal relation is the universal factor common to all legal liability.’ Lowery, 178 Ill. 2d at 466. Legal cause ‘is essentially a question of foreseeability’; the relevant inquiry is ‘whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct.’ Galman, 188 Ill. 2d at 258.

Foreseeability is added to the cause-in-fact requirement because ‘even when cause in fact is established, it must be determined that any variation between the result intended *** and the result actually achieved is not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.’ 1 W. LaFave, Substantive Criminal Law §6.4, at 464 (2d ed. 2003). Although foreseeability is a necessary component of a proximate cause analysis, it need not be specifically mentioned in a jury instruction to communicate the idea of ‘proximate’ to a jury.

Thus, the IPI civil jury instruction communicates the definition of ‘proximate cause,’ as ‘[any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]’ Illinois Pattern Jury Instructions, Civil, No. 15.01 (2005).” Hudson, 222 Ill. 2d at 401-02. Defendant invites us to equate “the proximate cause” with “sole proximate cause.” We must respectfully decline the invitation.

Our jurisprudence recognizes the principle of “sole proximate cause” and instructs a jury that “if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.” IPI Civil

(2000) No. 12.04. Adding the adjective “sole” to the phrase is quite different from simply changing the preceding

article from “a” to “the.” The modified instruction at issue contained an accurate statement of the law. Accordingly, there was no error, let alone plain error. As defendant has not met her burden of establishing plain error, we must honor her procedural default. People v. Hillier, 237 Ill. 2d 539, 545-46 (2010). With respect to the ineffective assistance of counsel issue, failure to object to proper conduct cannot render counsel constitutionally ineffective. Johnson, 218 Ill. 2d at 139. CONCLUSION For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. Affirmed. Unlike Justices Holdridge and McDade, I do not find that the use of the

article “the” in front of “proximate cause” creates an ambiguity. This is the reason I did not discuss legislative history. However, I plead guilty to going beyond what is necessary in what is perhaps a misguided effort to address concerns of those who might disagree with my conclusion that changing the

article immediately preceding “proximate cause” does not create an ambiguity