People v. Bardsley, 2017 IL App (2d) 150209

Chad Bardsley was charged with aggravated assault for lunging and nearly biting Kenneth Klean, a Centegra Hospital security officer, while restrained and intoxicated.
At trial the State's sole witness, Klean, testified that defendant had been unruly, placed in restraints, bit through a restraint, then lunged and attempted to bite Klean (mouth within ~1 cm of Klean's hand).
Defendant testified he was intoxicated, was trying to free his hand by chewing the restraint, and did not intend to bite Klean; he conceded intoxication and denied drug use.
Defense counsel argued defendant was only biting restraints (not Klean) and that Klean put his hand in harm’s way; defense did not expressly assert self-defense as justification for the lunge.
The trial court discredited defendant’s testimony, found he acted knowingly and without lawful authority, convicted him of aggravated assault, and sentenced him to conditional discharge with community service.
On appeal defendant argued the State failed to disprove self-defense; the Appellate Court held defendant forfeited the affirmative defense by not raising it at trial and affirmed the conviction.

Issue	People’s Argument	Bardsley’s Argument	Held
Whether defendant was entitled to have self-defense considered by the factfinder	Self-defense was not raised at trial; the defense was forfeited and the State need not disprove it	Evidence (including State’s witness) supplied slight evidence of self-defense so State had to disprove it beyond a reasonable doubt	Forfeiture: self-defense is an affirmative defense that must be expressly raised; defendant forfeited it by not doing so, so State had no burden to rebut it
Whether the phrase “without lawful authority” is an element of assault	It is not an element for assault; lack of authority is an affirmative defense to be pleaded	Bardsley implied justification could negate culpability	Court held lack of lawful authority is not an element of assault; justification is an affirmative defense the defendant must raise

People v. Cord, 258 Ill. App. 3d 188 (affirmative-defense "slight evidence" standard)
People v. Kucavik, 367 Ill. App. 3d 176 (even slight evidence can entitle defendant to consideration of an affirmative defense)
People v. Jeffries, 164 Ill. 2d 104 (once an affirmative defense is raised, State must disprove it beyond a reasonable doubt)
People v. Hussey, 3 Ill. App. 3d 955 (negative phrasing like "without legal justification" not required as element)
People v. Worsham, 26 Ill. App. 3d 767 (lack of justification not an element of battery; guidance reflected in pattern jury instructions)
People v. Pettus, 84 Ill. App. 3d 390 (lack of authority treated as an element only when fundamental to the offense)
People v. Mandic, 325 Ill. App. 3d 544 (presumption that trial court knows the law)
People v. Nicholls, 71 Ill. 2d 166 (authority cited re: taxing costs on appeal)