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Docket No. 95574-Agenda 18-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TIFFANY HOPP, Appellee.

Opinion filed February 20, 2004.

JUSTICE GARMAN delivered the opinion of the court:

Defendant, Tiffany Hopp, was found guilty by a jury of conspiracyto commit first degree murder. The appellate court reversed her convictionon the ground that the trial court committed plain error when it failed togive sua sponte a required jury instruction defining first degree murder.336 Ill. App. 3d 523. We allowed the State's petition for leave to appeal.177 Ill. 2d R. 315. We now reverse and affirm defendant's conviction.

BACKGROUND

In the early morning of December 20, 2000, 16-year-old J.S.entered the home of James Hopp in Nauvoo and hit James on the headwith a fireplace poker while he slept. James was seriously injured by theblow but has since recovered. J.S. and another juvenile, M.H., werearrested near the Hopp residence by a police officer who was respondingto the scene. At the time of the attack, defendant Tiffany Hopp, James'estranged wife, was in California with the couple's four children, visitingTiffany's mother. After defendant returned from California, she went to theHancock County sheriff's department to be interviewed about the attackon her husband. She gave two statements regarding her involvement in theattack, the second of which was videotaped. She was then arrested andlater charged by information with conspiracy to commit first degreemurder, and with attempted first degree murder and home invasion on atheory of accountability for the actions of J.S. and M.H.

J.S. and M.H. testified against defendant at trial. Both testified thatJ.S. was defendant's boyfriend. J.S. was 16 years old at the time of theattack on James, while defendant was 26. Both J.S. and M.H. testifiedabout numerous conversations they had with defendant in the weeks priorto the attack. During those conversations the three discussed various plansto kill James, including using a shotgun, burning down the house, andcutting James' throat. Defendant criticized these plans. For example, sheopined that a shotgun would make too much noise. The trio also discussedfabricating alibis by, for example, going to a movie theater in another town,obtaining tickets, and then slipping out of the theater to go to Nauvoo andkill James.

J.S. testified that "[w]e finalized the plan" shortly before defendantand the children left for California. The final plan was for J.S. and M.H.to go to the Hopp house early in the morning during the weekend. J.S.testified that it was decided to use the poker at his suggestion, and that hehad the idea because he "saw it on TV a lot." M.H. testified that his rolewas to accompany J.S. to make sure he would go through with it. Bothtestified that M.H. was to receive a car for his involvement whiledefendant would get custody of the four children, the house, and possiblyproceeds from insurance on James' life.

The State played defendant's videotaped statement for the jury. Init she maintained that she discussed killing James with J.S. and M.H. onlyso she could talk the boys out of it by pointing out flaws in their plans. Shealso claimed she was afraid J.S. would leave her if she told him not to killJames. Defendant also introduced a letter that J.S. wrote to James afterthe attack in which J.S. stated that defendant "didn't plan anything, shedidn't talk me into anything, if anyone deserves her charges it's [M.H.]."

A police officer who was present when defendant gave bothstatements testified that defendant was generally more "accountable" in theuntaped statement. The officer testified that in the untaped statementdefendant admitted that when she sent a message to J.S. via the internetstating that he had one more day, she meant that he had one more day leftin which to kill James. In the taped statement she claimed that she meantJ.S. had one more day to be without her, but admitted she did not correcthim when she realized he understood it to mean that he had one more dayto kill James. A second officer testified that while he was transportingdefendant to court the day after her arrest she asked him why she wascharged with solicitation to commit murder. Before he could answer,defendant stated, "We committed a conspiracy to kill [James] but wedidn't do a solicitation to kill [James]." J.S. testified that when he wroteto James that defendant did not plan anything, the statement was notaccurate. J.S. testified further that defendant did not come up with any ofthe ideas about how to kill James.

The jury was instructed on the elements of conspiracy and the othertwo charged crimes. However, neither party tendered a jury instructiondefining first degree murder, the object offense of the conspiracy, and nosuch instruction was given. The failure to instruct was not raised in aposttrial motion. The jury found defendant guilty of conspiracy to commitfirst degree murder and not guilty of attempted first degree murder andhome invasion. The court later sentenced defendant to seven years in theDepartment of Corrections.

ANALYSIS

Defendant did not tender a jury instruction defining first degreemurder, nor did she assert in her posttrial motion that it was error to omitthe instruction. On appeal, defendant argued that the court erroneouslyfailed to give a nonpattern jury instruction she had tendered and that thecourt committed plain error when it failed to give an instruction definingfirst degree murder sua sponte. The appellate court held that the court didnot err in refusing the nonpattern jury instruction but reversed defendant'sconviction, over a dissent, on the ground that the failure to instruct the juryon the definition of first degree murder for purposes of the conspiracycount was plain error. The sole issue before us is whether that failure toinstruct on the definition of first degree murder was plain error.

Supreme Court Rule 451(a) requires that in a criminal case, if thecourt determines the jury should be instructed on a subject, and the IllinoisPattern Jury Instruction (IPI), Criminal, contains an applicable instruction,then the IPI instruction "shall" be given unless the court determines it doesnot accurately state the law. 177 Ill. 2d R. 451(a); People v. Novak, 163Ill. 2d 93, 116 (1994). The court in this case gave the IPI instructions fora charge of conspiracy other than certain drug conspiracies. See IllinoisPattern Jury Instructions, Criminal, Nos. 6.03, 6.04 (4th ed. 2000)(hereinafter IPI Criminal 4th). The committee note to Instruction 6.03states that the court "must" also give an instruction defining the offense thatis the alleged subject of the conspiracy. IPI Criminal 4th No. 6.03,Committee Note. The user's guide to IPI Criminal 4th states, "If aCommittee Note indicates to give another instruction, that is a mandatoryrequirement." IPI Criminal 4th, User's Guide, at VIII. Thus it was errorfor the court to fail to give the IPI instruction defining first degree murder.

Supreme Court Rule 366 provides that a party that fails to tender ajury instruction may not raise the failure to give the instruction on appeal.155 Ill. 2d R. 366(b)(2)(i). However, Rule 451(c) provides that"substantial defects [in jury instructions in criminal cases] are not waivedby failure to make timely objections thereto if the interests of justicerequire." 177 Ill. 2d R. 451(c).

Rule 451(c)'s exception to the waiver rule for substantial defectsapplies when there is a grave error or when the case is so factually closethat fundamental fairness requires that the jury be properly instructed.People v. Thurman, 104 Ill. 2d 326, 329-30 (1984); People v.Huckstead, 91 Ill. 2d 536, 544 (1982). The tests for application of Rule451(c)'s exception to the waiver rule are "strict tests" that "demonstratethat the exception to the waiver rule is limited and is applicable only toserious errors which severely threaten the fundamental fairness of thedefendant's trial." People v. Roberts, 75 Ill. 2d 1, 15 (1979). Thefunction of jury instructions is to convey to the jurors the law that appliesto the facts so they can reach a correct conclusion. People v. Fuller, 205Ill. 2d 308, 343 (2002). Thus, the erroneous omission of a jury instructionrises to the level of plain error only when the omission creates a seriousrisk that the jurors incorrectly convicted the defendant because they didnot understand the applicable law, so as to severely threaten the fairnessof the trial. In People v. Ogunsola, we reversed defendant's convictionbecause an omitted jury instruction "removed from the jury's considerationa disputed issue essential to the determination of defendant's guilt orinnocence." People v. Ogunsola, 87 Ill. 2d 216, 223 (1981). Thedefendant in Ogunsola was charged with deceptive practices. The jurywas given an IPI instruction that it should find the defendant guilty if theState proved beyond a reasonable doubt that the defendant wrote a checkwith the intent to pay the victim while knowing the check would not bepaid. The jury should have been instructed that it also had to find thedefendant intended to defraud the victim, because intent to defraud is anelement of the offense of deceptive practices. We reasoned that intent todefraud is an essential element because it is possible to possess theelement of knowledge the check will not be paid, on which the jury wasinstructed, without possessing intent to defraud. Ogunsola, 87 Ill. 2d at221. Because the principal contested issue relevant to defendant'sculpability was whether he intended to defraud, we held that "fundamentalfairness required that the jury be instructed" it had to find intent to defraud.Ogunsola, 87 Ill. 2d at 223.

By contrast, in People v. Underwood, we held that it was not plainerror for the court to fail to give an IPI instruction on the definition of"reasonable belief." People v. Underwood, 72 Ill. 2d 124, 131 (1978).The parties in Underwood agreed that the essential issue bearing on thedefendant's guilt was whether he justifiably acted in self-defense when hestabbed the victim. The court instructed the jury that a person is justifiedin the use of force if he "reasonably believes" his conduct is necessary todefend himself. The defendant failed to tender the IPI instruction that"reasonably believes" means "the person concerned, acting as areasonable man, believes" and the instruction was not given. We reasonedthat, while it would have been plain error to fail to instruct the jury on self-defense, the definitional instruction was not "so basic to the giveninstruction on self-defense" that it was plain error for the court to fail togive it sua sponte. Underwood, 72 Ill. 2d at 130.

Before addressing the defendant's argument that the omission in hercase was plain error, we must address the opinion of the appellate court.As will be explained below, defendant argues that a conviction forconspiracy to commit first degree murder requires intent that the victim bekilled. The appellate court expressly rejected this premise, but reversedon other grounds. 336 Ill. App. 3d at 529. If the appellate court's groundswere sufficient to reverse defendant's conviction, we would affirm itsjudgment without reaching defendant's argument. However, for thefollowing reasons we find the appellate court's grounds insufficient.

The appellate court declined to follow People v. Carey, rejecting thedissent's suggestion that Carey is on point. 336 Ill. App. 3d at 528, citingPeople v. Carey, 94 Ill. App. 3d 631 (1981). In Carey, defendant wasconvicted of conspiracy to commit murder and solicitation to commitmurder. She failed to tender an instruction defining murder, but argued onappeal that the failure to give such an instruction was plain error. TheCarey court applied Underwood. Carey, 94 Ill. App. 3d at 634, citingUnderwood, 72 Ill. 2d at 124, 130-31. It found no plain error because"the definitional instruction omitted was not so basic to the giveninstructions on solicitation and conspiracy that under the facts of this casethe failure of the trial court to sua sponte give it resulted in an unfair trial."Carey, 94 Ill. App. 3d at 637.

The appellate court sought to distinguish Carey on three grounds.336 Ill. App. 3d at 528-29. The dissent argued that these grounds wereinsufficient. 336 Ill. App. 3d at 532-33 (Holdridge, J., dissenting).Although we, of course, are not bound by Carey, we note that the resultadvocated by the dissent corresponds to our disposition today. See 336Ill. App. 3d at 533 (Holdridge, J., dissenting).

We now turn to the appellate court's positive arguments for grantingdefendant relief. Without referring to the record to explain howdefendant's trial may have been rendered unfair by the omission of theinstruction defining first degree murder, the appellate court held that theomission was "a substantial and prejudicial defect." 336 Ill. App. 3d at529. However, we have never held any such omission to be plain errorwithout considering the effect that the omission had on defendant's trial.On the contrary, the result in Underwood demonstrates that omission ofthe definition of a term used to instruct the jury on the essential issue in thecase is not necessarily plain error. See Underwood, 72 Ill. 2d at 130-31.Furthermore, even an incorrect instruction on an element of the offense isnot necessarily reversible error. People v. Jones, 81 Ill. 2d 1, 10 (1979).In Jones the jury was erroneously instructed that a mental state other thanintent to kill could support a guilty verdict for attempted murder. Thevictim in Jones survived being abducted, robbed, and shot four times. Thedefendant did not deny that the shooter intended to kill, but deniedresponsibility for the shooting. We upheld his conviction for attemptedmurder, holding that the erroneous instruction on the intent element ofattempted murder was harmless where intent to kill was "blatantly evident"from the evidence. Jones, 81 Ill. 2d at 10.

The appellate court appears to have relied on the following language,which it quoted from our decision in People v. Koshiol:

" ' "[I]t would seem utterly meaningless to instruct a jury onattempt to commit a 'specific offense' without defining thespecific offense alleged to have been committed. Such procedurewould leave the jury entirely to its own devices in determiningwhat specific offense the court was referring to in itsdefinition of attempt as well as in determining whether thedefendant had taken a substantial step toward its commission."' " (Emphasis in original.) 336 Ill. App. 3d at 528-29, quotingPeople v. Carey, 94 Ill. App. 3d 631, 636, 418 N.E.2d 1119,1122 (1981), quoting People v. Koshiol, 45 Ill. 2d 573, 579(1970).

In Koshiol the defendant poisoned her husband but failed to kill him.The jury was instructed on attempted murder and on the definition ofmurder. The defendant argued that it would only confuse the jury toinstruct on the definition of murder when no one died. We held that it wasnot error to give the definitional instruction. Koshiol, 45 Ill. 2d at 579.Moreover, in Koshiol the instruction on attempt did not name the objectoffense but only spoke of some unnamed "specific offense." It was onlythe definition of first degree murder that told the jury what "specificoffense" was allegedly attempted. In this case the instruction on conspiracydid tell the jury the object offense was first degree murder. Thus Koshiolis distinguishable. We conclude that the reasoning of the appellate courtfails to show that defendant is entitled to relief.

We now turn to defendant's argument. Defendant asserts that thefacts in this case reveal that the erroneous omission of an instructiondefining first degree murder rises to the level of plain error. Her argumentrelies on two contentions: (1) the jury may have concluded that the Statefailed to prove that she intended that James be killed, but (2) the jury mayhave convicted her of conspiracy because the omission led it to believemistakenly that it could convict based on some mental state short of intentto kill.

As explained above, an omitted jury instruction constitutes plain erroronly when the omission creates a serious risk that the jurors incorrectlyconvicted the defendant because they did not understand the applicablelaw, so as to severely threaten the fairness of the trial. This rule does notrequire that defendant prove beyond doubt that her trial was unfairbecause the omitted instruction misled the jury to convict her. It doesrequire that she show that the error caused a severe threat to the fairnessof her trial. Ogunsola and Underwood exemplify cases where an omittedinstruction did severely threaten the fairness of a trial and one where it didnot, respectively.

Before considering whether the omission in this case severelythreatened the fairness of defendant's trial, we must answer twopreliminary questions. First, what would a correct instruction have told thejury? Second, what was the essential disputed issue in this case?

The committee note to the IPI instruction defining conspiracymandates that if a defendant is charged with conspiracy to commit firstdegree murder, Instruction 7.01 defining first degree murder must also begiven. IPI Criminal 4th No. 6.03, Committee Note. The committee noteto the instruction defining first degree murder, Instruction 7.01, furtherprovides that when the prosecution is for an inchoate offense such asattempt, solicitation, or conspiracy, paragraphs [2] through [4] of theinstruction are not to be given. IPI Criminal 4th No. 7.01, CommitteeNote. The instruction, so truncated, states in relevant part:

"A person commits the offense of first degree murder whenhe kills an individual *** if, in performing the acts which causethe death,

[1] he intends to kill or do great bodily harm to thatindividual[.]" IPI Criminal 4th No. 7.01.

The committee note further requires, in attempted first degree murdercases, that paragraph [1] be modified to eliminate the intent to do greatbodily harm and thus require the intent to kill. IPI Criminal 4th No. 7.01,Committee Note. Defendant argues that this further requirement properlyapplies to conspiracy cases as well as attempt. As defendant points out,we have held that, because a person is not guilty of attempted murderunless he intended to kill, jury instructions in attempted first degree murdercases must make clear that proof of nothing less than intent to kill isrequired to convict. People v. Harris, 72 Ill. 2d 16, 27 (1978); Peoplev. Trinkle, 68 Ill. 2d 198, 204 (1977). We reasoned that if a jury wereinstructed that the lesser intent to do great bodily harm is sufficient, thenit could find a defendant who intended to seriously hurt the victim but notkill him guilty of attempted murder when, in law, he would only be guiltyof aggravated battery. Trinkle, 68 Ill. 2d at 201. Defendant urges that ourreasoning applies to conspiracy as well as attempt. The State agrees.

We also agree. The elements of the crime of conspiracy are (1)agreement with another that an offense be committed, (2) intent that theoffense be committed and (3) an act in furtherance of the agreement by thedefendant or a co-conspirator. 720 ILCS 5/8-2(a) (West 2000).Because murder requires that a victim die, logic requires that an agreementto commit a crime, absent intent to kill, cannot be conspiracy to commitany sort of murder. A defendant who agreed with others to beat someoneand who only intended that a beating occur may be guilty of conspiracy ofsome sort, but not of conspiracy to commit murder. Thus, jury instructionsin cases of conspiracy to commit first degree murder must make clear thatthe State must prove that the defendant intended a killing. We concludethat, had the jury in this case been properly instructed, it would have beengiven a definition of first degree murder that, when combined with theinstructions on conspiracy, would make clear the State must provedefendant intended that her husband James be killed.

We note that our decision to follow Trinkle and Harris to concludethat the jury should have been told expressly that proof of intent to kill isrequired to convict a person of conspiracy does not commit us to followthe disposition of those cases. As the appellate court recognized, thosecases involved an instruction that misstated the law. See 336 Ill. App. 3dat 527. We find the case at bar, where the jury was not given anyinstruction, is clearly distinguishable.

The second preliminary question concerns the essential disputed issuein this case. It was undisputed that defendant discussed killing James withJ.S. and M.H. on many occasions, and that she never told them not to killJames. The disputed issue was what defendant intended, not what she did.The State argued to the jury that she wanted James dead. Defendantargued she did not intend that James be killed, but only wanted to talk theboys out of killing him by finding flaws in their plans. As we have justexplained, conspiracy to commit first degree murder requires intent to kill.Thus the essential disputed issue was whether defendant intended thatJames be killed.

We now turn to defendant's first point, which is that the jury mayhave concluded that the State did not prove that defendant intended thatJames be killed. Defendant attempts to support this by pointing outevidence before the jury that purported to show that she did not intendthat James be killed. However, the evidence on the issue of defendant'sintent was overwhelming. Intent to kill may be proved by thecircumstances. People v. Williams, 165 Ill. 2d 51, 64 (1995). Theundisputed circumstances of this case are that defendant participated innumerous discussions about killing James and criticized various methodsof killing him. For example, she advised the boys not to use a shotgunbecause it would be too loud. She also criticized various ways to establishan alibi. She never said anything before the attack to indicate that she didnot want the boys to kill James. A reasonable juror could and very likelywould infer intent to kill from these circumstances.

In her videotaped statement, and at trial through counsel's closingargument, defendant maintained that in spite of her conduct her intentionwas that James not be killed. She explained that she wished to talk theboys out of killing James by pointing out flaws in their plan. She explainedher failure to do anything more to oppose the idea of killing James byclaiming that she, a 26-year-old woman, was afraid of losing her 16-year-old boyfriend, J.S., if she overtly opposed the idea of murdering the fatherof her four children.

The mere fact that defendant offered an exculpatory explanation forher conduct is insufficient to show that it is likely that the jury concludedthat the State failed to prove that defendant intended that James be killed.Of course, it is for the trier of fact to judge defendant's credibility. SeePeople v. Locascio, 106 Ill. 2d 529, 537 (1985). In this case, it isapparent the jury did not accept her explanation.

Defendant also offers the following argument. The jury acquitted heron the charge of attempted first degree murder on an accountabilitytheory. When the jury was instructed on attempted murder, it was told thatthe elements are (1) defendant, or someone for whose conduct defendantis legally responsible, performed a substantial step toward killing anindividual and (2) defendant, or someone for whose conduct defendant islegally responsible, did so with intent to kill an individual. It is undisputedthat J.S. hit James with the poker, which clearly was a substantial steptoward killing James. It is also undisputed that defendant participated inconversations about killing James. If those conversations supported thefinding of an agreement necessary for defendant's conviction forconspiracy, they must also support a finding of abetting in planning, whichwould make her legally responsible for J.S.'s actions. Thus, defendantconcludes, the only logical explanation for the acquittal on attemptedmurder is that the jury thought the State had not proved intent to kill.

Defendant's argument fails upon consideration of the whole record.The jury also acquitted on the charge of home invasion on anaccountability theory. The jury was told that the elements of home invasionare that defendant or one for whose conduct she is legally responsible was(1) not a peace officer acting in the line of duty who (2) knowingly andwithout authority entered the dwelling of another when he (3) knew or hadreason to know that a person was present and (4) intentionally causedinjury to James Hopp, a person within the dwelling place. The undisputedfacts establish all the elements of home invasion as to J.S. However,defense counsel attacked the notion of legal accountability during closingargument. One of defense counsel's themes was "I am not my brother'skeeper." Thus defendant's acquittal on the home invasion charge indicatesthat the jury decided defendant was not accountable for J.S.'s actions.Rejection of accountability for J.S.'s actions also explains the acquittal onthe charge of attempted murder. On the other hand, defendant's theorythat the jury thought the State did not prove intent to kill does not explainthe acquittal on home invasion, because intent to kill is not an element ofhome invasion. Therefore, the fact the jury in this case acquitted defendantof attempted murder provides little or no reason to conclude the jurythought that the State did not prove defendant intended that James bekilled.

In sum, we conclude that there is inadequate support in the record fordefendant's contention that the jury may have thought that the State didnot prove that defendant intended that James be killed. Her contentionamounts to mere speculation. Speculation about what the jury may havethought is insufficient to show that the omission of the instruction definingfirst degree murder severely threatened the fairness of defendant's trial andthat it was plain error.

In addition to suggesting that the jury may have concluded that intentto kill was not proven, defendant contends that the omission of theinstruction defining first degree murder may have misled the jury to thinkthat it could convict based on some mental state other than intent to kill.However, there is nothing in the record that indicates that the jury mayhave been misled.

The jury was instructed that it should not convict defendant ofconspiracy unless the State proved beyond a reasonable doubt thatdefendant intended that the offense of first degree murder be committed.As the dissenting justice below stressed, it is commonly understood thatto murder someone is to kill him. See 336 Ill. App. 3d at 531 (Holdridge,J., dissenting). Jurors are not required to set aside the observations andinferences that they would ordinarily make. See IPI Criminal 4th No.1.01[10] (instructing jurors to consider the evidence in light of "your ownobservations and experience in life"). The jurors, knowing that to murderis to kill, would undoubtedly understand from the instruction given in thiscase that the State had to prove that defendant intended that James bekilled. See also People v. Ambrose, 28 Ill. App. 3d 627, 633 (1975)(holding that, because lay persons have general knowledge of what armedrobbery is, failure to instruct jury on the definition of armed robbery in aconspiracy case is not reversible error).

Defendant argues that the jurors may have been misled if they knewthat in Illinois a person can be guilty of first degree murder based onmental states other than intent to kill, such as intent to do great bodily harmor intent to commit a forcible felony. See 720 ILCS 5/9-1 (West 2000).Jurors who know this fact about Illinois law might mistakenly infer thatdefendant could be guilty of conspiracy to commit first degree murder ifshe only intended that James suffer great bodily harm or that he be thevictim of a forcible felony. Defendant urges that we cannot presume thatjurors are ignorant of Illinois law.

Accepting, arguendo, that the jurors did know that one can commitfirst degree murder without intending to kill, we still find little likelihood thatthe jury was misled. At no point in the record does anyone suggest to thejury that intent to kill is not required. Therefore, we must presume that thejury relied on the commonly understood fact that to murder is to killinstead of mistakenly inferring that intent to kill is not required.

CONCLUSION

We conclude that defendant has not shown from the record in thiscase that there is any significant likelihood that the jury concluded that theState did not prove that defendant intended that James be killed. Theevidence on the disputed issue, whether defendant intended that James bekilled, was overwhelming. Defendant has merely speculated that the jurymay have thought that intent to kill was not proved and that it may haveconvicted her of conspiracy because the omitted jury instruction on thedefinition of first degree murder misled it to think that intent to kill is notrequired. However, such speculation is insufficient to show that theomission severely threatened the fairness of defendant's trial. Therefore,the omission does not rise to the level of plain error. We reverse thejudgment of the appellate court and affirm the defendant's conviction forconspiracy to commit first degree murder.

Appellate court judgment reversed;

circuit court judgment affirmed.