People v. Stroud

2023 IL App (2d) 220306, 237 N.E.3d 1001

Opinion

2023 IL App (2d) 220306 No. 2-22-0306 Opinion filed September 19, 2023 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-80 ) JENNIFER B. STROUD, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Birkett and Kennedy concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Lake County, defendant, Jennifer B. Stroud,

was found guilty of endangering the life or health of a child (child endangerment) (720 ILCS

5/12C-5(a)(1) (West 2014)) and thereby proximately causing the child’s death (id. § 12C-5(d)).

Defendant was also found guilty of involuntary manslaughter (id. § 9-3(f)). The trial court entered

a judgment of conviction on the involuntary manslaughter verdict and sentenced defendant to an

eight-year prison term. Defendant argues that the verdicts are legally inconsistent and she is

therefore entitled to a new trial. We reverse and remand.

¶2 I. BACKGROUND 2023 IL App (2d) 220306

¶3 Defendant and her husband, David A. Stroud, were jointly charged with two counts of child

endangerment proximately causing the child’s death 1 (counts I and II), and a single count of

involuntary manslaughter (count III). The charges arose from the death of the parties’ minor son,

J.S. (a heart transplant recipient), due to neglect of his medical needs. Count I alleged that

defendant and David “knowingly caused or permitted the life or health of [J.S.], *** to be

endangered in that they failed to administer to [J.S.] necessary prescribed medication to [J.S.],

which was a proximate cause of the death of [J.S.].” Count II alleged that defendant and David

“knowingly caused or permitted the life or health of [J.S.], *** to be endangered, in that they failed

to bring [J.S.] to necessary medical appointments, which was a proximate cause of the death of

[J.S.].” Count III alleged that defendant and David, “acting in a reckless manner, failed to perform

acts likely to cause death or great bodily harm [sic] to [J.S.], a family member, in that [they] failed

to administer to [J.S.], on a daily basis, necessary prescribed medication, thereby causing the death

of [J.S.].” 2

¶4 David pleaded guilty to involuntary manslaughter. Defendant pleaded not guilty to all three

charges and was tried before a jury. The evidence presented at trial was as follows. J.S. was born

in 2005 with a complex congenital heart disease. Around 2010, medical personnel determined that

1 A first offense of child endangerment is a Class A misdemeanor. 720 ILCS 5/12C-5(d)

(West 2014). However, if the offense is a proximate cause of the death of the child, it is a Class 3

felony carrying a possible prison sentence of 2 to 10 years. Id. 2 Ordinarily, involuntary manslaughter is a Class 3 felony. 720 ILCS 5/9-3(d)(1) (West

2014). However, when the victim is a family or household member, the offense is punished as a

Class 2 felony carrying a possible prison sentence of 3 to 14 years. Id. § 9-3(f).

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J.S. needed a heart transplant. While J.S. was awaiting the transplant, medical personnel explained

to defendant that she needed to administer antirejection medication to J.S. as prescribed following

the transplant and attend regular follow-up appointments. They also told her that missing even one

dose of the medication could cause J.S. to become sick, suffer a rejection episode, or even die.

J.S.’s transplant surgery occurred in May 2012 at Children’s Wisconsin in Milwaukee. Medical

personnel at Children’s Wisconsin testified that J.S. missed or canceled follow-up appointments

on multiple occasions.

¶5 Scott Waggoner, a solid organ transplant pharmacist at Children’s Wisconsin hospital,

testified that while J.S. was in the hospital recovering from his transplant surgery, Waggoner met

with defendant and David to explain J.S.’s medication regimen. Waggoner informed defendant

that missing a single dose of the antirejection medication, or even one dose per month, would not

necessarily lead to a rejection episode, but missing one, two, or three doses per week would be

“play[ing] with fire.” After J.S. was discharged, follow-up visits were scheduled with Waggoner

to monitor J.S.’s medication levels. During multiple follow-up appointments, defendant advised

Waggoner that J.S. had missed doses.

¶6 In 2015, J.S.’s care was transferred to Lurie Children’s Hospital in Chicago (Lurie). J.S.’s

first appointment at Lurie was in April 2015 with pediatric cardiologist Kathryn Gambetta. At that

appointment, Gambetta spoke to defendant about the importance of J.S.’s medications and his

follow-up care. At that point, J.S. was overdue for his cardiac catheterization. An appointment for

catheterization was scheduled for May 2015, but J.S. did not attend it. The appointment was

rescheduled for June, but defendant canceled it. J.S. ultimately had the catheterization procedure

on December 21, 2015. Gambetta testified that although the procedure revealed no problems, she

was concerned about the delay in performing the procedure. She saw “red flags” in defendant’s

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lack of follow-up in the months before the procedure. Gambetta further testified that a follow-up

appointment was scheduled for April 2016, but J.S. missed it. The appointment was rescheduled

three times, but J.S. missed all three appointments, the last of which was scheduled for August 9,

2016. At that point, one of Lurie’s social workers contacted the Department of Children and Family

Services (DCFS). A DCFS investigator visited defendant on August 10, 2016, to discuss

defendant’s failure to bring J.S. to his appointments. Defendant finally brought J.S. to Lurie on

August 23, 2016. J.S. had gained 20 pounds since his December 2015 visit and complained of

fatigue. Defendant admitted to Gambetta that J.S. had been missing about two doses of his

medication per week.

¶7 J.S. was admitted to the hospital. Testing showed that he was suffering from a rejection

impacting the coronary arteries. One of J.S.’s physicians, pediatric cardiologist Phillip Thrush,

attributed J.S.’s condition to his failure to receive antirejection medication. J.S.’s condition

deteriorated to the point where only a second heart transplant could possibly save his life.

However, he was not a viable candidate for another transplant. J.S. was initially treated with

extracorporeal membrane oxygenation, but after discussions about J.S.’s prognosis, defendant and

David chose to suspend life-sustaining measures. J.S. died on September 11, 2016.

¶8 The prescriptions for J.S.’s antirejection medication required refills every 30 days. The

State presented evidence that, between December 2015 and July 2016, the prescriptions were

refilled only three times.

¶9 Defendant testified that she was legally blind in her right eye and her vision in her left eye

had slowly deteriorated over the years. Before J.S. was born, defendant worked at a Wal-Mart in

Gurnee. During her pregnancy, she learned that J.S. would have medical issues. After he was born,

she left her job to care for him.

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¶ 10 J.S. was hospitalized for a significant part of his first year of life. After the first year, J.S.

had monthly follow-up appointments. Generally, defendant’s parents drove her and J.S. to the

appointments. Sometimes, David would drive them when he could get time off from work.

Medication was prescribed for J.S., and defendant administered it. When J.S. was about two,

defendant got a job at a Wal-Mart in Waukegan as a cake decorator. She worked there for

approximately 2½ years.

¶ 11 In 2011, defendant and David were told that J.S. needed a heart transplant. They decided

to put him on the transplant list. Defendant was aware that J.S. would require medication and

would need to attend appointments at the transplant clinic. Defendant testified that, during 2012

and part of 2013, her parents brought her and J.S. to all his appointments at the transplant clinic.

However, in the spring of 2013, defendant’s parents moved to Arizona. Defendant managed to

take J.S. to his appointments until late 2013, when she was in an automobile accident with David

and J.S. David never returned to work after the accident, claiming that a back injury disabled him.

According to defendant, David just sat around the house, smoking and watching television.

Because defendant and David’s vehicle was totaled in the accident, she relied on friends for

transportation to J.S.’s appointments.

¶ 12 Defendant and David had trouble paying rent for their apartment, and in the spring of 2014,

they moved into a trailer purchased with financial assistance from defendant’s father. In February

2015, defendant got a job as a cafeteria worker at Warren Township High School. She told David

that he “needed to step up” and help take care of J.S. When defendant started her new job, David

gave J.S. his morning dose of medication. According to defendant, at some point, David became

responsible for refilling J.S.’s prescriptions. Late in 2014, defendant and David learned that J.S.’s

care was being transferred to Lurie in Chicago. J.S.’s first appointment at Lurie was in April 2015.

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Defendant admitted that J.S. missed subsequent appointments at Lurie. She claimed that J.S.

missed some appointments in 2016 because David had agreed to take him but failed to do so.

¶ 13 In closing argument, the prosecutor argued first that defendant was guilty of involuntary

manslaughter. Regarding the child endangerment charges, the prosecutor said, “this is based upon

the same conduct. If it fits what she did here, you can find her guilty of both.” (Emphasis added.)

Defendant’s attorney conceded that defendant was guilty of child endangerment but argued that

she had not acted recklessly and, therefore, was not guilty of involuntary manslaughter.

¶ 14 The trial court instructed the jury on accountability principles. See 720 ILCS 5/5-2(c)

(West 2014). The jury found defendant guilty on all three counts. Defendant filed a motion for a

new trial, arguing that she was not proved guilty beyond a reasonable doubt and that the trial court

committed various trial errors. She did not argue that the jury’s verdicts were legally inconsistent.

The trial court denied the motion. After sentencing, defendant filed this timely appeal.

¶ 15 II. ANALYSIS

¶ 16 Defendant argues that the guilty verdicts on both involuntary manslaughter and child

endangerment are legally inconsistent because those offenses require proof of inconsistent mental

states.

¶ 17 Defendant acknowledges that she did not raise this argument below, but she invokes the

plain-error doctrine as an exception to forfeiture. See People v. Averett, 237 Ill. 2d 1, 18 (2010)

(“The plain-error rule bypasses normal forfeiture principles and permits reviewing courts to

consider unpreserved error in specific circumstances.”). “Legally inconsistent verdicts present

plain error, which is an exception to the general rule that issues not raised in [a] defendant’s motion

for a new trial are waived.” People v. Mitchell, 238 Ill. App. 3d 1055, 1058 (1992). Accordingly,

we will review this issue for plain error.

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¶ 18 Verdicts are legally inconsistent “when an essential element of each crime must, by the

very nature of the verdicts, have been found to exist and to not exist even though the offenses arise

out of the same set of facts.” (Internal quotation marks omitted.) People v. Davidson, 2023 IL App

(2d) 220140, ¶ 59. Furthermore, it is well established that “[w]hen a jury returns inconsistent guilty

verdicts, the trial judge has a duty to send the jury back for further deliberations after additional

instructions to resolve the inconsistency. [Citations.]” People v. Porter, 168 Ill. 2d 201, 214 (1995).

Failure to do so requires reversal and remand for a new trial. Id. at 214-15.

¶ 19 When the mental states of the different offenses are mutually inconsistent, guilty verdicts

on both offenses are legally inconsistent. See id. The mental state for child endangerment is

knowledge; as pertinent here, a person commits child endangerment “when he or she knowingly:

(1) causes or permits the life or health of a child under the age of 18 to be endangered.” 720 ILCS

5/12C-5(a)(1) (West 2014). The mental state for involuntary manslaughter is recklessness; as

pertinent here, “[a] person who unintentionally kills an individual without lawful justification

commits involuntary manslaughter if his [or her] acts whether lawful or unlawful which cause the

death are such as are likely to cause death or great bodily harm to some individual, and he [or she]

performs them recklessly.” Id. § 9-3(a).

¶ 20 To find defendant guilty of child endangerment, the jury was required to find that defendant

acted with knowledge that her conduct endangered J.S.’s life or health. See id. § 12C-5(a)(1). A

person acts with knowledge of “[t]he result of his or her conduct, described by the statute defining

the offense, when he or she is consciously aware that that result is practically certain to be caused

by his conduct.” Id. § 4-5(b). To find defendant guilty of involuntary manslaughter, the jury was

required to find that defendant recklessly performed the acts that caused J.S.’s death. See id. § 9-

3(a).

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“A person is reckless or acts recklessly when that person consciously disregards a

substantial and unjustifiable risk that *** a result will follow, described by the statute

defining the offense, and that disregard constitutes a gross deviation from the standard of

care that a reasonable person would exercise in the situation.” Id. § 4-6.

¶ 21 Recklessness and knowledge are mutually inconsistent mental states. Davidson, 2023 IL

App (2d) 220140, ¶ 59. In Davidson, a jury found the defendant guilty of the same offenses at

issue here—child endangerment proximately causing the death of a child and involuntary

manslaughter—in connection with the death of a child from an overdose of olanzapine, a drug

prescribed to the child’s mother that acted as a central nervous system depressant. Id. ¶¶ 3, 49, 53,

64. The indictment alleged that the defendant committed involuntary manslaughter in that “ ‘[he]

and one for whose conduct he [was] legally responsible gave [the victim] several prescription

Olanzapine pills in an amount that cause [sic] [her] death.’ ” Id. ¶ 63. The child endangerment

charge was based on the allegation that the defendant “ ‘knowingly caused the life of [the victim],

*** to be endangered, in that [he] gave [the victim] several pills of prescription Olanzapine.’ ” Id.

We reversed the convictions, reasoning that the jury’s findings that the defendant acted both

knowingly and recklessly in giving olanzapine to the victim were legally inconsistent. Id. ¶¶ 74-

75.

¶ 22 The State argues that “[u]nder the unique facts of this case, *** where the evidence

established that defendant’s mental state changed over time,” the verdicts of guilty of child

endangerment and involuntary manslaughter were consistent. The State points out that the acts

forming the basis for the charges were ongoing over nine months and that the jury could have

concluded that defendant acted both knowingly and recklessly during this time. However, the State

does not suggest that, in any given instance when defendant failed to give J.S. his medication, she

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could have simultaneously acted knowingly and recklessly. Rather, the State’s argument appears

to be that the verdicts can be sustained because they are based on different acts (or series of acts).

According to the State, the evidence showed that defendant “knew of the risk to J.S.’s health and

life if he was not given his required daily [antirejection medication].” The State adds that “[a]s

more time passed, defendant’s ongoing failure to ensure J.S. received the necessary medications

became reckless.” (Emphasis added.) This argument is unpersuasive, as we will show.

¶ 23 In Davidson, 2023 IL App (2d) 220140, ¶ 62, we cited People v. Spears, 112 Ill. 2d 396,

405 (1986), for the proposition that “[t]he manner in which a defendant is charged, and the jury is

instructed, provides the essential framework for analyzing the consistency of jury verdicts.” The

Spears court reasoned that “[i]t would be manifestly unfair to allow the State, with the benefit of

hindsight, to be able to create separable acts on appeal, neither alleged nor proved at trial.” Id. The

court added:

“[T]he substance of the allegations charging the defendant, as an unequivocal expression

of prosecutorial intent [citation], and what the evidence showed in relation to those charges,

are of particular importance in determining whether guilty verdicts could rationally and

consistently be based upon separable acts accompanied by the requisite mental states.” Id.

at 405-06.

¶ 24 Furthermore, Spears teaches that the State’s theory of the case at trial is germane to whether

verdicts challenged as legally inconsistent can be sustained based on separable acts. In Spears, the

defendant was found guilty of both attempted murder and reckless conduct in connection with the

shooting of his estranged wife. Id. at 399. The defendant fired three shots, two of which struck or

grazed the victim. Id. at 401. Citing, inter alia, People v. Gross, 52 Ill. App. 3d 765 (1977), the

State argued that the three shots were separable acts accompanied by different mental states.

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Spears, 112 Ill. 2d at 405. However, the Spears court found that Gross and the other the cases cited

by the State were inapposite because “[i]n each of those cases the State was not, as it is here,

attempting to justify guilty verdicts in direct conflict with both its theory of the case at trial and

the evidence it presented in support of that theory.” Id.

¶ 25 With these principles in mind, we conclude that the verdicts of guilty of both child

endangerment and involuntary manslaughter—offenses with mutually inconsistent mental states—

cannot be sustained based on the existence of separable acts. Count I of the indictment, which

charged defendant with child endangerment, alleged that “on or between December 1, 2015, and

September 11, 2016, [defendant and David] *** failed to administer to [J.S.] necessary prescribed

medication to [J.S.], which was a proximate cause of the death of [J.S.].” Count III, which charged

involuntary manslaughter, alleged that, during that same period, defendant and David “failed to

administer to [J.S.], on a daily basis, necessary prescribed medication, thereby causing the death

of [J.S.].” The charges alleged essentially identical acts and yielded no indication of a prosecutorial

intent to distinguish between acts performed knowingly and those performed recklessly. Nor did

anything in the jury instructions distinguish among the various instances when defendant did not

give J.S. his medication. Furthermore, we find no meaningful support in the evidence for the

State’s present theory that during the time frame specified in the indictment—December 1, 2015,

to September 11, 2016—defendant’s mental state changed. By December 1, 2015, defendant had

ample warning that administering J.S.’s medication daily, as prescribed, was necessary to prevent

J.S.’s heart from failing. The State identifies no evidence that, during the relevant time frame,

defendant acquired any information that could have affected her mental state. Furthermore, the

State’s argument that defendant’s mental state changed from knowing to reckless is untenable

because knowledge is not inherent in recklessness (see id. at 408 (“it does not follow *** that one

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who acts recklessly also acts knowingly”)) and because knowledge is the more culpable mental

state of the two (People v. Lattimore, 2011 IL App (1st) 093238, ¶ 43). Thus, the State’s argument

curiously implies that defendant’s mental state became less culpable as time passed. Moreover, the

State’s argument contradicts its theory at trial where, during closing argument, the prosecutor

specifically stated that the charges of child endangerment and involuntary manslaughter were

based on the same conduct.

¶ 26 The State argues that the jury could have made the following consistent findings:

(1) defendant’s failure to give J.S. his medication was a knowing act that constituted child

endangerment and (2) defendant’s entrusting David with the responsibility to give J.S. his morning

dose was a reckless act that constituted involuntary manslaughter. This argument is apparently

based on defendant’s testimony that, in February 2015, she and David agreed that David would

administer J.S.’s morning dose. However, the indictment’s allegations do not support the theory

that defendant acted knowingly with respect to some failures to give J.S. his medicine and acted

recklessly with respect to other failures to give him his medicine. See Davidson, 2023 IL App (2d)

220140, ¶¶ 61-63 (where the charge of involuntary manslaughter alleged that the defendant

recklessly performed acts likely to cause the victim’s death “ ‘in that the defendant and one for

whose conduct he [was] legally responsible gave [the victim] several prescription Olanzapine pills

in an amount that cause [sic] the death of [the victim],’ ” otherwise inconsistent verdicts of guilty

of both child endangerment and involuntary manslaughter could not be reconciled based on the

uncharged theory that the defendant recklessly allowed the victim to fall asleep and failed to check

on her, after learning that the victim’s mother had already given her olanzapine).

¶ 27 Additionally, the State argues that the jury could have found defendant guilty of

involuntary manslaughter based on the accountability instruction the jury received and the

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evidence of David’s acts and omissions regarding J.S.’s care. This argument is meritless. As

pertinent here, a person is accountable for the conduct of another when “either before or during

the commission of an offense, and with the intent to promote or facilitate that commission, he or

she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission

of the offense.” 720 ILCS 5/5-2(c) (West 2014). The involuntary manslaughter charge was based

on the reckless failure to administer medication to J.S. The State points to no evidence that

defendant ever solicited, aided, abetted, agreed, or attempted to aid David’s failure to give J.S. his

medication.

¶ 28 The State further argues that “[t]he charging instrument allows for consistent verdicts by

including a knowing offense regarding medical appointments, and a reckless offense regarding

medications.” However, as defendant notes, because the jury returned a general verdict of guilty

of child endangerment, defendant is deemed to have been found guilty of both counts of that

offense. See Davidson, 2023 IL App (2d) 220140, ¶ 66. Count I charged child endangerment based

on the failure to administer medication. The guilty verdict on that charge is inconsistent with the

guilty verdict on the involuntary manslaughter charge, which likewise charged defendant with the

failure to administer medication. It is true that count II—which charged child endangerment based

on the failure to attend medical appointments—is not necessarily inconsistent with the involuntary

manslaughter verdict. However, “where a defendant is convicted of two or more counts that are

legally inconsistent and others that are not legally inconsistent, reversal and a new trial are required

as to the legally inconsistent counts and the ‘counts related thereto.’ ” Id. ¶ 75 (quoting Mitchell,

238 Ill. App. 3d at 1060). That principle applies here.

¶ 29 The State also relies on People v. Bustamante, 334 Ill. App. 3d 515, 516 (2002), in which

this court upheld convictions of two offenses involving inconsistent mental states, based on a

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single act. Bustamante is readily distinguishable. In that case, the defendant threw a bottle at a

parked police car, shattering the rear window. Id. A piece of glass struck a police officer inside the

car. Id. The defendant was found guilty of both criminal damage to government-supported property

and reckless conduct. Id. at 515-16. Although criminal damage to government-supported property

required proof that the defendant acted knowingly, we concluded that the guilty verdict on that

charge was consistent with the guilty verdict on reckless conduct. Id. at 521. We reasoned that case

law “concerned with mutually incompatible mental states regarding a defendant’s act or course of

conduct toward one victim” did not govern the determination of “whether two seemingly

incompatible mental states can exist contemporaneously or nearly contemporaneously with respect

to two victims or harms even though there was but one act.” Id. We observed:

“[T]he jury rationally could have concluded that [the] defendant acted knowingly in

damaging the government-supported property but acted recklessly in causing the

consequential endangerment to the safety of the officer as evidenced by the shattered glass

spraying the officer. The victims and the harms are clearly separable, and the State intended

to charge and prove two separate crimes.” Id. at 522.

Here, unlike in Bustamante, there was a single victim and a single harm.

¶ 30 The State alternatively argues that, even if the verdicts were inconsistent, defendant invited

the error by conceding, during closing argument, that she was guilty of child endangerment and

asking the jury to deliberate only on the involuntary manslaughter charge. The argument is

unpersuasive. Defendant’s attorney vigorously argued that defendant was not guilty of involuntary

manslaughter; he did not invite the jury to return inconsistent verdicts.

¶ 31 Having concluded that the legally inconsistent verdicts on involuntary manslaughter and

child endangerment require reversal and remand for a new trial, we briefly consider the separate

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question of whether the evidence presented at trial was sufficient to sustain guilty verdicts on the

charged offenses. Failing to do so would risk subjecting defendant to double jeopardy. Davidson,

2023 IL App (2d) 220140, ¶ 76. Upon careful consideration, we conclude that the evidence was

sufficient to establish beyond a reasonable doubt that either or both defendant’s failure to

administer antirejection medication as prescribed and her failure to take J.S. to necessary medical

appointments were a cause-in-fact and proximate cause of J.S.’s death. Concerning counts I and

III, the evidence supports a finding that, in failing to provide J.S. his medication, defendant acted

either knowingly (count I) or recklessly (count III)—but, of course, not both. As for count II, the

evidence supports a finding that, in failing to take J.S. to necessary medical appointments,

defendant knowingly caused or permitted J.S.’s life or health to be endangered. Thus, the evidence

was sufficient to sustain convictions on either count I or III (but not both) and on count II. Retrying

defendant on all three counts will not subject her to double jeopardy. We stress that we “have made

no finding as to defendant’s guilt that would be binding on the court on retrial.” Id.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we reverse the judgment of the circuit court of Lake County and

remand for a new trial.

¶ 34 Reversed and remanded.

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People v. Stroud, 2023 IL App (2d) 220306

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 17-CF-80; the Hon. Daniel B. Shanes, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Jaime L. Montgomery, for of State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick for Delfino, Edward R. Psenicka, and Max C. Boose, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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