2021 IL App (2d) 191060-U No. 2-19-1060 Order filed August 30, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CM-732 ) DEBBIE SELEP, ) Honorable ) Philip G. Montgomery, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: The defendant’s conviction for violating an order of protection is reversed and the cause remanded for a new trial where omission of a jury instruction was plain error that denied the defendant a fair trial.
¶2 In August 2019, a jury convicted the defendant, Debbie Selep, of violating an order of
protection (720 ILCS 5/12-3.4(a) (West 2016)). The defendant was sentenced to 18 months of
court supervision. On appeal, the defendant argues that improper jury instructions denied her a
fair trial and that she received ineffective assistance of counsel. We reverse and remand for a new
trial. 2021 IL App (2d) 191060-U
¶3 I. BACKGROUND
¶4 On July 26, 2018, the defendant was charged with violating an order of protection (720
ILCS 5/12-3.4(a) (West 2016)). Specifically, the complaint alleged that the defendant was served
with the order of protection and had notice of its contents. Further, the defendant violated the
order in that she “came within 500 feet of the petitioner, Chelsea J. [Sword], and engaged in
harassing communication with her.” The defendant requested a jury trial.
¶5 At trial, Deputy Sarah Frazier testified that she had been employed by the De Kalb County
sheriff’s office for 25 years. On July 10, 2018, she served the defendant with a copy of an
emergency order of protection. In addition to giving the defendant the order, she read, to the
defendant, every remedy that was checked and explained what the order meant. Frazier identified
People’s Exhibit 1 as a copy of the summons. The summons was admitted without objection.
¶6 Chelsea Sword (née Selep) testified that the defendant was her mother. On July 10, 2018,
she petitioned the court for an emergency order of protection. When asked the purpose for the
petition, Sword stated that she was worried about her son’s safety. The defendant objected on the
basis of relevance, and the trial court sustained the objection. Sword identified People’s Exhibit 2
as a copy of the emergency order of protection and it was admitted without objection. The record
indicates that the order was to remain in effect until July 28, 2018.
¶7 Sword further testified that, on July 24, 2018, she accompanied her brother Charles to the
De Kalb County courthouse for a guardianship proceeding. Another brother, Tony, was also there.
Sword knew that, as Charles’ guardian, the defendant would be in court that day. After the
guardianship proceedings for that day concluded, Sword and her two brothers exited the
courtroom. The defendant and Sword’s Aunt Patti also exited the courtroom. The defendant
started talking to Charles, and Aunt Patti and Tony stepped away to talk privately. Shortly
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thereafter, Charles said he had to use the restroom, so he started walking toward the bathroom.
The defendant followed him. Sword testified that she also wanted to use the restroom, so she
walked in that direction also.
¶8 Sword testified that, when they reached the restrooms, Charles went inside. Sword waited
outside for Charles because she knew Charles did not want to be alone with the defendant. While
standing in the hallway outside the restroom, the defendant stated to Sword, “Chelsea, you really
did it this time, you’re ruining your life.” Sword told the defendant not to speak to her as she had
an order of protection. The defendant said she would not speak to Sword, rather she would speak
to the air about Sword. The defendant then said, “My name is Chelsea. My mom helped me get
my nursing license and my medical license and I will lose them both by the end of the year.”
Sword testified that these statements made her feel like she was being harassed and the defendant
was threatening her career and livelihood.
¶9 Sword testified that the bailiff walked out of the courtroom at this time. Sword asked the
bailiff for help. Sword told the bailiff that the defendant was harassing and threatening her, and
that she had an order of protection against the defendant. The bailiff told the defendant that she
would have to leave. The defendant proceeded to leave the courthouse. Shortly thereafter, Sword
and her brothers also left the courthouse.
¶ 10 Sword did not report the incident that day. But a day or two later, she spoke to her attorney
about the order of protection case. She explained to her attorney what had happened in the
courthouse after the guardianship proceedings. Her attorney told her that she should report the
incident because it sounded like a violation of the order of protection. After that conversation, she
called the sheriff’s office to make a report. Sword testified that she did not make a report the same
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day as the incident because she was too emotional, was not thinking clearly, and did not
immediately understand what had happened.
¶ 11 Following closing arguments, the trial court instructed the jury and sent them to deliberate.
One of the instructions given to the jury was Illinois Pattern Jury Instructions, Criminal, No. 11.78
(4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.78), which set forth the four propositions that
must be proved to support a conviction of violation of an order of protection. No sub-instructions
were given along with IPI Criminal 4th No. 11.78. The summons and emergency order of
protection were sent back to the jury room during deliberation, without objection from defense
counsel. The order stated that the defendant was prohibited from committing “[h]arassment,
interference with personal liberty, physical abuse, or stalking” against Sword and Sword’s son. It
also included a definition of harassment and listed certain acts that were presumed to be harassing.
¶ 12 During deliberations, the jury sent out two notes. The first note contained three questions:
(1) “Is the courthouse/court room considered a public place as described in the order of
protection?”; (2) “Would the descriptions/definitions of harassment as written in order of
protection apply to the spaces?”; and (3) “Are we exclusively ruling on harassing communication
to the exclusion of other forms of harassment as described in [the] order of protection?” The trial
court suggested telling the jury, “You have all the evidence and instructions that you will receive.
Please continue to deliberate.” The trial court asked defense counsel if she agreed and she
responded, “Yes. Thank you, your Honor.”
¶ 13 The second note from the jurors stated, “We believe we are at an impass [sic] and are
unable to reach a verdict as a whole group.” With agreement of defense counsel, the trial court
instructed the jury to continue to deliberate. Thereafter, the jury returned a guilty verdict. Defense
counsel did not file a motion for a new trial. The trial court later sentenced the defendant to 18
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months’ court supervision, noting that the defendant had no prior criminal history. The defendant
then filed a timely notice of appeal.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the defendant argues that the trial court erred in failing to instruct the jury on
the definition of “harassment.” Alternatively, the defendant argues that trial counsel was
ineffective in failing to request a jury instruction defining harassment and in failing to offer such
an instruction in response to the jury’s questions during deliberations. Finally, the defendant
argues that trial counsel was ineffective in (1) failing to object to the order of protection going
back to the jury room, as it described other bad acts allegedly committed by the defendant, and (2)
failing to object, on the basis of hearsay, when the defendant testified that her attorney told her the
exchange in the courthouse sounded like a violation of the order of protection.
¶ 16 At the outset, the State notes that there is a potential issue as to mootness because the
defendant’s period of court supervision should have already been completed. However, as the
finding of guilt can have collateral consequences even if the defendant successfully completed her
supervision, this appeal is not moot. People v. Sheehan, 168 Ill. 2d 298, 308 (1995); People v.
Vanhoose, 2020 IL App (5th) 170247, ¶ 21 (completion of supervision did not render appeal moot
because finding of guilt could be considered in future criminal proceedings, could affect one’s
ability to obtain work, and could negatively affect one’s reputation).
¶ 17 Turning to the merits, the defendant’s first contention on appeal is that the trial court erred
in failing to give the definitional instruction for harassment to the jury. The defendant
acknowledges that she did not preserve the issue for appeal, as she failed to object at trial or raise
the error in a posttrial motion. See People v. Herron, 215 Ill. 2d 167, 175 (2005). Nonetheless,
she asks us to consider the error under the plain error doctrine.
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¶ 18 The plain-error doctrine allows a reviewing court to reach an unpreserved error when
either: (1) the evidence in the case is closely balanced, regardless of the seriousness of the error,
or (2) the 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. Id. at 178-79. The
first step of plain-error review is determining whether a clear or obvious error occurred. People v.
Sanders, 2012 IL App (1st) 102040, ¶ 24. Whether the trial court failed to properly instruct the
jury is a question of law subject to de novo review. People v. Reddick, 123 Ill. 2d 184, 196-200
(1988). “Whenever Illinois Pattern Jury Instructions, Criminal, contains an instruction applicable
in a criminal case, giving due consideration to the facts and the governing law, and the court
determines that the jury should be instructed on the subject, the IPI Criminal instruction shall be
used, unless the court determines that it does not accurately state the law.” (Emphasis added.) 210
Ill. 2d R. 451(a) (eff. Apr. 8, 2013).
¶ 19 In the present case, the defendant was charged with violating an order of protection. To
prove the defendant guilty of violating an order of protection, the State was required to prove that
she committed an act prohibited by a valid order of protection, and also that she did so after having
been served notice of the contents of the order or having otherwise acquired actual knowledge
thereof. 720 ILCS 5/12-30 (West 2016). Here, the complaint alleged that the defendant came
within 500 feet of Sword and engaged in harassing communication with her. The jury was
properly given IPI Criminal 4th No. 11.78, which sets forth the four propositions the State had to
prove to find the defendant guilty. Based on the allegations of the complaint, the first proposition
in the pattern jury instruction was that “the defendant engaged in harassing communication with
Chelsea [Sword].”
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¶ 20 Illinois Pattern Jury Instruction, Criminal, No. 11.78E (4th ed. 2000) (hereinafter, IPI
Criminal 4th No. 11.78E), defines the word “harassment” as “knowing conduct which would cause
a reasonable person emotional distress, which does cause emotional distress to the petitioner, and
which is not necessary to accomplish a purpose that is reasonable under the circumstances.” The
committee note states that this definitional instruction is to be given “when the word ‘harassment’
is used either in the description of the act or failure to act which has been inserted in Instruction
11.78.” IPI Criminal 4th No. 11.78E, Committee Note. Further, Rule 451(a) (eff. Apr. 8, 2013),
requires the trial court to use the Illinois Pattern Jury Instructions when an instruction is applicable
in a criminal case. In the present case, the jury was not given instruction IPI Criminal 4th No.
11.78E, which defines “harassment.” Because the definition of harassment was applicable in this
case, as it was used in the first proposition of IPI Criminal 4th No. 11.78, the trial court erred in
failing to give that instruction.
¶ 21 Having concluded that the failure to give the pattern jury instruction defining “harassment”
was error, we must determine whether the error rises to the level of plain error. The defendant
argues that it was second-prong plain error, in that the error was so serious that she was denied a
fair trial, because the lack of the instruction left the jurors confused about the definition of
harassment.
¶ 22 In People v. Thompson, 238 Ill. 2d 598, 613-14 (2010), the supreme court took note that,
in People v. Glasper, 234 Ill. 2d 173, 197-98 (2009), it had “equated the second prong of plain-
error review with structural error, [in that it had] assert[ed] that ‘automatic reversal is only required
where an error is deemed “structural,” i.e., a systemic error which serves to “erode the integrity of
the judicial process and undermine the fairness of the defendant’s trial.” ’ ” Thompson, 238 Ill. 2d
at 613-14 (quoting Glasper, 234 Ill. 2d at 197-98, quoting People v. Herron, 215 Ill. 2d 167, 186
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(2005)). However, in People v. Clark, 2016 IL 118845, ¶ 46, the supreme court explained that
“although [its] decisions in Glasper and Thompson equated second-prong plain error with
structural error, [it] did not restrict plain error to the types of structural error that have been
recognized by the [U.S.] Supreme Court.” In fact, our supreme court has applied second-prong
plain error in contexts not involving structural error. See People v. Clark, 2014 IL App (1st)
123494, ¶ 40 (citing In re Samantha V., 234 Ill. 2d 359, 378-79 (2009) (the failure to apply the
one-act, one-crime rule constituted second-prong plain error) and People v. Walker, 232 Ill. 2d
113, 131 (2009) (the failure to exercise discretion in denying a request for a continuance
constituted second-prong plain error)). As such, even though the omission of a jury instruction on
an element of an offense is not structural error (see Neder v. United States, 527 U.S. 1, 10 (1999)),
it could still be second-prong plain error (Clark, 2016 IL 118845, ¶ 46).
¶ 23 Accordingly, we must determine whether the error in this case was so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.
See Herron, 215 Ill. 2d at 179. To show second-prong plain error resulting from the omission of
a jury instruction, the defendant must establish that there was a “serious risk that the jurors
incorrectly convicted the defendant because they did not understand the applicable law.” People
v. Sargent, 239 Ill. 2d 166, 191 (2010). While the defendant must show that the omitted instruction
created a “severe threat to the fairness of her trial,” the defendant need not “prove beyond doubt
that her trial was unfair because the omitted instruction misled the jury to convict her.” (Emphasis
in original.) People v. Hopp, 209 Ill. 2d 1, 12 (2004). “Fundamental fairness requires the trial
court to give correct instructions on the elements of the offense in order to insure a fair
determination of the case by the jury. Failure to so instruct the jury constitutes plain error.” People
v. Williams, 181 Ill. 2d 297, 318 (1998), as modified on denial of rehearing (Mar. 30, 1998).
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¶ 24 We hold that second-prong plain error occurred here. The definition of harassment
contains three prongs: (1) that the defendant’s conduct served no reasonable purpose; (2) that the
conduct would cause a reasonable person emotional distress; and (3) that the conduct at issue did
cause the petitioner emotional distress. In the absence of the definition, the jury may not have
realized that the State was required to establish all three prongs to prove the defendant guilty of
violating the order of protection. In fact, during closing argument the State argued that it had to
prove that “the defendant engaged in harassing communication with Chelsea [Sword] while there
was an emergency order of protection in place.” The State then made the following statement,
“And you know who told you that contact was harassing? Chelsea. Chelsea told you that that
contact was harassing.” However, the State never explained that it had to prove that a reasonable
person would also have found the contact harassing or argued that that standard was met here.
¶ 25 The State argues that the lack of a definitional instruction for harassment was not plain
error because the definition was included in the emergency order of protection, which was given
to the jury during its deliberations. However, this actually exacerbated the error. The committee
note for IPI Criminal 4th No. 11.78E explains that the Domestic Violence Act (750 ILCS 60/103(7)
(West 2016)) creates a mandatory presumption that certain types of conduct cause emotional
distress and that those presumptions must be rebutted by a preponderance of the evidence. IPI
Criminal 4th No. 11.78E, Committee Note. While the order of protection defined harassment as
stated in IPI Criminal 4th No. 11.78E, it went further and listed the various types of conduct that
were presumed to cause emotional distress, i.e., creating a disturbance at victim’s place of
employment; repeatedly telephoning the victim at work or home; repeatedly following the victim
in a public place; repeatedly keeping the victim under surveillance; or threatening the victim with
physical force. These presumptions heightened the risk that the jury misapplied the law in finding
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the defendant guilty or based its verdict on conduct not charged. In fact, the committee note
specifically states that “[b]ecause of constitutional difficulties that would arise if the presumption
were applied in criminal cases, the Committee believes that no instruction on the presumption
should be given in a criminal prosecution for violation of an order of protection.” Id.
¶ 26 The notes that the jury sent to the trial court during deliberations demonstrate that the
definition of harassment with the included presumptions set forth in the emergency order of
protection was confusing to the jury. One of the types of conduct listed in the order of protection
that was presumed to cause emotional distress was “repeatedly following the petitioner about in a
public place or places.” The jury note asked whether the courthouse was a public place, whether
the definitions of harassment as written in the order of protection applied to a courthouse, and
whether they were ruling on harassing communication to the exclusion of other forms of
harassment. The jury questions show that the jury was confused about the basis on which they
could find the defendant guilty of violating the order of protection, i.e., the charged conduct versus
the presumptions set forth in the order of protection.
¶ 27 The State argues that the issue in this case was invited error because defense counsel did
not request that the trial court respond to the jury’s questions with the definition of harassment.
However, while the parties are primarily responsible for preparing jury instructions, the trial court
in a criminal case is responsible for “fully instructing the jury on the elements of the offense.”
People v. Delgado, 376 Ill. App. 3d 307, 314 (2007). “Where the instruction error was in a
definition essential to the jury’s assessment of the defendant’s guilt or innocence *** it is
reversible error, and the defendant is entitled to a new trial.” Id. (citing People v. Stromblad, 74
Ill. 2d 35, 41 (1978)); see also 177 Ill. 2d R. 451(c) (“substantial defects” in criminal jury
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instructions “are not waived by failure to make timely objections thereto if the interests of justice
require.”).
¶ 28 As we have determined that the failure to give the definitional instruction for harassment
resulted in second-prong plain error, we need not address the defendant’s additional contentions
raised on appeal. We must, however, address double jeopardy. The double jeopardy clause of the
United States Constitution prohibits the State from having another opportunity to try a case unless
it has presented in the first trial sufficient evidence to prove the defendant guilty beyond a
reasonable doubt. People v. Johnson, 2013 IL App (2d) 110535, ¶ 84. Thus, before remanding
for a new trial, double jeopardy requires this court to rule upon the sufficiency of the evidence.
People v. Taylor, 76 Ill. 2d 289, 309 (1979); Johnson, 2013 IL App (2d) 110535, ¶ 84. We must
determine whether, after considering all of the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).
¶ 29 In the present case, the evidence was sufficient to support the defendant’s conviction.
There was evidence that the defendant was served with the order of protection and that she was
within 500 feet of Sword in the courthouse at the guardianship proceedings. Further, the evidence
of the defendant’s communication with Sword at the courthouse could be construed by a jury as
serving no reasonable purpose, as being likely to cause emotional distress to a reasonable person,
and as actually causing Sword emotional distress. Accordingly, without determining the
defendant’s guilt or innocence, we hold that the evidence was sufficient to support conviction and
retrial is not barred on double jeopardy grounds.
¶ 30 III. CONCLUSION
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¶ 31 For the reasons stated, the judgment of the circuit court of De Kalb County is reversed and
the cause is remanded for a new trial.
¶ 32 Reversed and remanded.
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