People v. T.W.

Filed 4/21/08 NO. 4-07-0182
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: T.W., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Vermilion County
v. ) No. 06JD183
T.W., )
Respondent-Appellant. ) Honorable
) Craig H. DeArmond,
) Judge Presiding.
______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In October 2006, the State filed an amended petition
for adjudication of wardship, alleging respondent, T.W., was a
delinquent minor following the commission of the offenses of
battery and disorderly conduct. In January 2007, the trial court
adjudicated respondent delinquent based on a finding of guilty on
all counts. In February 2007, the court found it in respondent's
best interest that she be made a ward of the court and sentenced
her to 24 months' probation.
On appeal, respondent argues (1) the trial court erred
in finding probable cause of delinquency at the detention hear-
ing, (2) her trial counsel was ineffective, (3) the State failed
to prove her guilty of battery, and (4) her disorderly conduct
adjudication should be reversed. We affirm in part and vacate in
part.
I. BACKGROUND
In October 2006, the State filed an amended petition
for adjudication of wardship, alleging respondent was a delin-
quent minor. The petition charged respondent with two counts of
battery (720 ILCS 5/12-3(a)(1), (a)(2) (West 2006)), alleging
that on September 12, 2006, she knowingly and without legal
justification caused bodily harm to and made physical contact of
an insulting or provoking nature with Alexis S. The petition
also charged respondent with disorderly conduct (720 ILCS 5/26-
1(a)(1) (West 2006)), alleging that on October 20, 2006, she
knowingly engaged in certain conduct, fighting on a school bus,
in such an unreasonable manner as to alarm or disturb Mark
Goodwin and to provoke a breach of the peace.
In November 2006, the trial court conducted a detention
hearing. The court called respondent and her mother, Tanya W.,
and questioned them under oath. Respondent testified she was 13
years old and a student at North Ridge Middle School. The court
confirmed respondent and her mother received the amended petition
and appointed the public defender. The court read the charges to
respondent, explained the possible sentences, and admonished her
as to her right to a trial.
The trial court then told Tanya W. that it had the
option of putting respondent in detention if she testified her
daughter was beyond her control. Tanya indicated she would like
the court to address the issue of detention. The court then told
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the prosecutor to call respondent's mother as a witness. Tanya
testified respondent had been kicked out of school for 10 days.
She stated respondent does not follow rules well at home and has
run away. Tanya stated she tried to control her daughter but it
was hard considering she was a single parent and respondent did
not listen to her.
The trial court found probable cause to believe respon-
dent was delinquent. The court also found it was a matter of
immediate and urgent necessity that respondent be detained
pending the next court date. The court found no custodial
alternative.
In January 2007, the trial court conducted the adjudi-
catory hearing. Alexis S. stated she was five years old. She
testified to a situation a few months prior to the hearing where
four girls came up to her and her friend "down by [her] old bus
thingy [sic]." One girl came up to her, smacked her on the
cheek, and pulled her hair. Later, Alexis's father arrived, as
did the police. She pointed to one of the girls, but she did not
think she would remember what the girl looked like if she saw her
again.
Jeff S. testified he returned home from work on Septem-
ber 12, 2006, and stated his "wife was gone and said somebody had
smacked and pulled Alexis's hair." He later found four girls and
asked which one smacked his daughter and pulled her hair. The
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girls pointed at a girl down the road. Jeff S. went down and
talked with the girl's mother. He explained to her that the four
girls identified her daughter as the one who hit Alexis in the
face and pulled her hair. The mother stated the four girls came
to her house and started problems with her daughter. During this
time period, a police officer arrived on the scene.
With an officer present, Jeff S. asked Alexis which one
of the girls pulled her hair and smacked her. He held Alexis in
his arms and pointed at each girl and asked her if that was the
girl that hit her. Alexis responded in the negative as to the
first three girls and positively to the last girl. Jeff S.
described the girl as a young, heavyset African-American female
wearing a blue shirt and blue jeans.
Danville police officer Eric Olsen testified he was
approached by Jeff S. on September 12, 2006, with the report that
one of four girls in the area had struck his daughter. Olsen
stated Jeff S. pointed at each girl and asked Alexis if one of
the girls hit her. Alexis said no to the first three girls and
yes to respondent. Olsen made an in-court identification of
respondent.
Officer Olsen then questioned respondent. She told him
she was walking home with three friends when they observed Alexis
outside her residence. The girls asked Alexis for a glass of
water and she said no. Respondent stated her friend Tambriesha
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then struck Alexis in the face. Two of the other girls' mothers
arrived and told him Shateri had been the one who pushed Alexis.
Mark Goodwin testified he was the principal at North
Ridge Middle School. On October 20, 2006, Goodwin stated two
students were fighting on a school bus. He and another staff
member entered the bus and separated the two female students, who
were hitting each other and pulling hair. Goodwin identified one
of the girls as respondent. Because the bus was full, Goodwin
was concerned with the risk of other students being injured.
On cross-examination, Goodwin stated the other female
involved in the fight was Porsha E. He did not recall if she was
involved in other fights prior to this incident. He also stated
Porsha got into an altercation with respondent's sister after she
was taken off the bus.
Respondent testified Porsha threatened to "beat [her]
butt" when she got on the school bus. Porsha told others that
respondent called the police on her at school, which respondent
denied. Respondent testified Porsha "jumped up in [her] face"
and "swung off" her. Respondent then hit her back, and the girls
began fighting. When asked to leave the bus, respondent ini-
tially refused because she feared for her sister's safety.
Following closing arguments, the trial court found
respondent guilty on all three counts and adjudicated her delin-
quent. As to the battery charges, the court found it clear the
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victim identified one of the four girls and respondent was the
girl identified per the testimony of Officer Olsen. Jeff S.'s
testimony that he pointed to each girl and asked Alexis if each
one hit her offered "further credibility to [Alexis's] ability to
identify." On the disorderly-conduct count, the court found
respondent engaged in a fight in an unreasonable manner so as to
alarm and disturb Goodwin and provoke a breach of the peace.
In February 2007, the trial court found it in respon-
dent's best interest that she be made a ward of the court. The
court sentenced her to 24 months' probation with the first 30
days to be served in the juvenile detention center. This appeal
followed.
II. ANALYSIS
A. Detention Hearing
Respondent argues the trial court erred in finding (1)
probable cause of delinquency without hearing evidence concerning
the allegations in the State's amended petition and (2) an
immediate and urgent necessity that respondent be detained
despite no evidence of probable cause. The State argues these
issues are moot since respondent is no longer detained and has
been found delinquent of the charges. We agree with the State.
"It is a basic tenet of justiciability
that reviewing courts will not decide moot or
abstract questions or render advisory opin-
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ions. [Citation.] An appeal is considered
moot where it presents no actual controversy
or where the issues involved in the trial
court no longer exist because intervening
events have rendered it impossible for the
reviewing court to grant effectual relief to
the complaining party." In re J.T., 221 Ill.
2d 338, 349-50, 851 N.E.2d 1, 7-8 (2006).
In the case sub judice, respondent concedes she is no
longer detained and has been found delinquent of the charges.
Thus, any decision by this court on this issue would be advisory
in nature as it would be impossible to grant any effectual relief
to her. Accordingly, we find this issue moot.
Respondent, however, contends this court should address
the issue of finding probable cause at the detention hearing,
claiming it is an important question of public interest that will
routinely evade review.
"Application of the public[-]interest excep-
tion requires (1) the existence of a question
of public importance; (2) the desirability of
an authoritative determination for the pur-
pose of guiding public officers in the per-
formance of their duties; and (3) the likeli-
hood that the question will recur." J.T.,
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221 Ill. 2d at 350, 851 N.E.2d at 8.
Another exception to the mootness doctrine involves factual
scenarios of short duration that are capable of repetition yet
evade review. In re Marie M., 374 Ill. App. 3d 913, 915, 873
N.E.2d 393, 395 (2007). "For this exception to apply, the
complaining party must demonstrate (1) the challenged action is
too short in duration to be fully litigated prior to becoming
moot, and (2) a reasonable expectation exists the complaining
party will be subjected to the same action again." Marie M., 374
Ill. App. 3d at 915, 873 N.E.2d at 395.
Here, neither exception applies to this case. The
exception for cases of short duration evading review does not
apply because no expectation arises that respondent will be
subject to the same action again. With respect to the public-
interest exception, we agree the pretrial detention of juveniles
and the evidence considered by trial courts in making a detention
determination are questions of public importance. However, we
find no need for an authoritative determination for the purpose
of guiding public officers in the performance of their duties.
The protections afforded juveniles in regard to detention hear-
ings, e.g., a probable-cause finding on delinquency and the
finding it is a matter of "immediate and urgent necessity" for
the protection of the minor or others that the minor be detained,
are fully set out in section 5-501 of the Juvenile Court Act of
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1987 (705 ILCS 405/5-501 (West 2006)) and addressed in the
relevant case law (see In re C.J., 328 Ill. App. 3d 103, 112-13,
764 N.E.2d 1153, 1160 (2002); In re S.I., 234 Ill. App. 3d 707,
712, 600 N.E.2d 889, 891-92 (1992)). Accordingly, we decline to
employ the public-interest exception to the mootness doctrine
here.
B. Assistance of Counsel
Respondent next argues her trial counsel was ineffec-
tive for failing to object to the trial court's questioning of
her before the finding of probable cause and for failing to
object to the finding of probable cause. However, our analysis
on the detention hearing renders moot respondent's second issue
regarding the assistance of counsel at that hearing.
C. Sufficiency of the Evidence
Respondent argues the State failed to prove her guilty
of battery beyond a reasonable doubt. We disagree.
When a delinquency petition is filed, the State must
prove the elements of the substantive offense charged beyond a
reasonable doubt. In re Ryan B., 212 Ill. 2d 226, 231, 817
N.E.2d 495, 498 (2004). A reviewing court will not overturn a
trial court's delinquency finding "unless, after viewing the
evidence in the light most favorable to the State, no rational
fact finder could have found the offenses proved beyond a reason-
able doubt." In re Gino W., 354 Ill. App. 3d 775, 777, 822
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N.E.2d 592, 594 (2005). The trier of fact has the responsibility
to determine the credibility of witnesses, to resolve conflicts
in the evidence, and to draw reasonable inferences from that
evidence. Gino W., 354 Ill. App. 3d at 777, 822 N.E.2d at 594.
"A person commits battery if he intentionally or
knowingly without legal justification and by any means, (1)
causes bodily harm to an individual or (2) makes physical contact
of an insulting or provoking nature with an individual." 720
ILCS 5/12-3(a) (West 2006).
"The State bears the burden of proving beyond a reason-
able doubt the identity of the person who committed the charged
offense." People v. Lewis, 165 Ill. 2d 305, 356, 651 N.E.2d 72,
96 (1995). Although an identification that is vague or doubtful
is insufficient to support a conviction, "a single witness'[s]
identification of the accused is sufficient to sustain a convic-
tion if the witness viewed the accused under circumstances
permitting a positive identification." Lewis, 165 Ill. 2d at
356, 651 N.E.2d at 96.
"In evaluating identification testimony,
Illinois courts consider the factors set
forth in Neil v. Biggers, 409 U.S. 188, 199-
200, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375,
382 (1972), which are (1) the witness's op-
portunity to view the criminal at the time of
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the crime; (2) the witness's degree of atten-
tion; (3) the accuracy of the witness's prior
description of the criminal; (4) the wit-
ness's level of certainty at the identifica-
tion confrontation; and (5) the length of
time between the crime and the identification
confrontation." People v. Standley, 364 Ill.
App. 3d 1008, 1014, 848 N.E.2d 195, 200
(2006).
Here, Alexis testified a girl came up to her, smacked
her on the cheek, and pulled her hair. The evidence indicated
Alexis had ample opportunity to view the offender at the time of
the crime as it was during the daylight and shortly after school
had been let out. Being smacked in the face and having one's
hair pulled surely grabs one's attention. When Jeff S. asked his
daughter which of the four girls hit her, Alexis identified
respondent. Nothing in the evidence indicated any hesitation or
prompting in her identification. Finally, little time passed
between the incident and Alexis's identification of respondent.
Jeff S. testified he asked Alexis which of the four
girls hit her. As he pointed to each one, Alexis responded in
the negative until he asked about the last girl, an African-
American female. Officer Olsen testified he witnessed the
questioning by Jeff S. of Alexis and her identification of
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respondent.
At trial, Alexis was unable to make an in-court identi-
fication. Section 115-12 of the Code of Criminal Procedure of
1963 provides that testimony regarding a declarant's prior out-
of-court statement of identification is not rendered inadmissible
by the hearsay rule if "(a) the declarant testifies at the trial
or hearing, and (b) the declarant is subject to cross-examination
concerning the statement, and (c) the statement is one of identi-
fication of a person made after perceiving him." 725 ILCS 5/115-
12 (West 2006).
Here, Alexis testified at trial and was subject to
cross-examination. Further, the statement was one of identifi-
cation made by the victim after perceiving respondent on the day
of the incident. Thus, Officer Olsen's testimony as to Alexis's
prior identification was admissible as substantive evidence.
Based on the evidence presented, a rational trier of fact could
have found the State proved the offense of battery beyond a
reasonable doubt.
D. Disorderly Conduct
Respondent argues her disorderly-conduct adjudication
should be reversed because (1) contrary to the trial court's
ruling, self-defense is an affirmative defense to disorderly
conduct, and (2) the evidence showed she acted in self-defense.
We agree.
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"A charge of disorderly conduct requires
a showing that the accused knowingly acted in
such an unreasonable manner as to alarm or
disturb another and to provoke a breach of
the peace. 720 ILCS 5/26-1 (West 1994). The
offense embraces a wide variety of conduct
serving to destroy or menace the public order
and tranquility. The offense may include not
only violent acts, but acts and words likely
to produce violence in others." In re B.C.,
176 Ill. 2d 536, 551-52, 680 N.E.2d 1355,
1363 (1997).
Under section 7-1(a) of the Criminal Code of 1961
(Criminal Code) (720 ILCS 5/7-1(a) (West 2006)), "[a] person is
justified in the use of force against another when and to the
extent that he reasonably believes that such conduct is necessary
to defend himself or another against such other's imminent use of
unlawful force."
In finding respondent guilty on the disorderly-conduct
count, the trial court stated, in part, as follows:
"The [d]isorderly [c]onduct, interest-
ingly, that turns out to be charged as a
disorderly conduct and not a battery so I'm
not sure that self-defense is even a defense,
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an affirmative defense to disorderly conduct.
It would be an affirmative defense to a bat-
tery. The issue here, though, isn't whether
it was a battery, it was whether by engaging
in a fight on a school bus she engaged in
conduct in such an unreasonable manner as to
alarm and disturb Mr. Goodwin and provoke a
breach of the peace. That's clear from the
testimony the fact that the bus driver had to
stop the bus before they even get out of the
parking lot, that it was necessary for school
staff to enter the bus. It was necessary for
them to break the fight up and to remove the
minor from the scene in order to bring order
back to the bus. That evidence is more than
enough to establish an offense of disorderly
conduct. Maybe not a battery, might have
been a good--good defense to a battery, but
this isn't a battery, it's a disorderly con-
duct by engaging in a fight in an unreason-
able manner as to alarm and disturb Mr.
Goodwin and provoke a breach of the peace."
Respondent claims no authority supports the trial
court's conclusion that self-defense was not available as an
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affirmative defense to the charge of disorderly conduct. We have
found no Illinois authority allowing or denying the affirmative
defense in the situation presented here. Thus, this matter
appears to be one of first impression in Illinois.
"[T]he law of self-defense applies in both criminal and
civil cases." First Midwest Bank of Waukegan v. Denson, 205 Ill.
App. 3d 124, 129, 562 N.E.2d 1256, 1259 (1990). The affirmative
defense of self-defense has been raised in criminal cases invol-
ving murder (People v. Lee, 213 Ill. 2d 218, 224, 821 N.E.2d 307,
311 (2004)), domestic battery (People v. Grayson, 321 Ill. App.
3d 397, 402, 747 N.E.2d 460, 464-65 (2001)), battery and resist-
ing arrest (People v. Sims, 374 Ill. App. 3d 427, 431-32, 871
N.E.2d 153, 157 (2007)), and aggravated battery in a place of
public accommodation (People v. Dillard, 319 Ill. App. 3d 102,
105-06, 745 N.E.2d 185, 188 (2001)), just to name a few.
Courts in other jurisdictions have allowed a defendant
charged with disorderly conduct to assert self-defense. See
S.D.G. v. State, 919 So. 2d 704, 705 (Fla. Dist. App. 2006) (in
this disorderly-conduct case, "[w]here a defendant did not
initiate the fight, and was acting to protect herself from her
attacker, the defense of self-defense applies"); State v. Soukup,
656 N.W.2d 424, 429 (Minn. App. 2003) ("self-defense is applica-
ble to a charge of disorderly conduct where the behavior forming
the basis of the offense presents the threat of bodily harm");
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D.M.L. v. State, 773 So. 2d 1216, 1217 (Fla. Dist. App. 2000)
("Self-defense may be used as a defense to a charge of disorderly
conduct provided that the person charged did not provoke the
fight"); State v. Schumaier, 603 N.W.2d 882, 885 (N.D. 1999)
("self-defense may be asserted in appropriate cases by defendants
charged with disorderly conduct"). Courts have also allowed
other justification defenses to a disorderly-conduct charge. See
State v. Hauenstein, 121 Ohio App. 3d 511, 517, 700 N.E.2d 378,
379-81 (1997) (defense of parental discipline was proper for
charge of disorderly conduct); City of Chicago v. Mayer, 56 Ill.
2d 366, 370, 308 N.E.2d 601, 603-04 (1974) (the defendant was
entitled to an instruction on the defense of necessity as to
charge of disorderly conduct).
In this case, nothing in section 7-1 of the Criminal
Code restricts the use of force in self-defense depending on the
nature of the charge. Moreover, the alleged action taken by
Porsha toward respondent constituted an offense of a physical
nature and carried with it the potential to cause bodily harm.
Considering Porsha's alleged conduct could constitute a battery,
respondent was entitled to defend herself. Thus, we find the
affirmative defense of self-defense applies in this situation to
the charge of disorderly conduct.
The State argues even if the trial court erred in
stating self-defense is not a defense to disorderly conduct, any
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error was harmless where the evidence presented did not rise to
the level of self-defense.
"Self-defense is an affirmative defense, and
once a defendant raises it, the State has the
burden of proving beyond a reasonable doubt
that the defendant did not act in self-de-
fense, in addition to proving the elements of
the charged offense. [Citation.] The ele-
ments of self-defense are: (1) that unlawful
force was threatened against a person; (2)
that the person threatened was not the ag-
gressor; (3) that the danger of harm was
imminent; (4) that the use of force was nec-
essary; (5) that the person threatened actu-
ally and subjectively believed a danger ex-
isted that required the use of the force
applied; and (6) the beliefs of the person
threatened were objectively reasonable."
Lee, 213 Ill. 2d at 224-25, 821 N.E.2d at
311.
If the State negates any one of the six elements, the defendant's
self-defense claim fails. Lee, 213 Ill. 2d at 225, 821 N.E.2d at
311.
Here, respondent testified Porsha threatened to "beat
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[her] butt" when she got on the school bus. After Porsha told
others respondent had called the police on her, which respondent
denied, Porsha "jumped up in [her] face" and "swung off" her.
The evidence indicated Porsha was the aggressor, the danger of
harm to respondent was imminent, and the use of force was neces-
sary for respondent to defend herself. Further, respondent
stated she was trying to keep Porsha from fighting with her.
Given Porsha's threats and taking a swing at respondent in the
crowded school bus, respondent's belief that she was in imminent
danger of harm was objectively reasonable.
The State argues Porsha was not the aggressor and
respondent struck the first blow. However, we find the evidence
shows respondent acted in self-defense. Respondent's testimony
that Porsha "swung off" her amounts to an aggressive action to
which respondent could rightfully respond in defense of herself.
The State argues the only evidence of self-defense was
defendant's self-serving testimony. We note the State presented
no evidence that respondent did not act in self-defense. Fur-
ther, the State declined to offer any evidence in rebuttal. The
evidence also indicated Porsha continued her aggressive behavior
after she was removed from the bus. Goodwin testified Porsha got
into an altercation with respondent's sister after respondent and
Porsha had been separated. This evidence lends credence to
respondent's testimony that Porsha was the initial aggressor.
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The State's claim that Porsha had never caused respondent trouble
before was insufficient to negate the elements of self-defense.
The State also argues the girls fought willingly upon
equal terms for three to four minutes, hitting each other and
pulling hair. The affirmative defense of self-defense is un-
available "where both parties fought willingly upon equal terms."
People v. White, 293 Ill. App. 3d 335, 338, 687 N.E.2d 1179, 1182
(1997). However, "a person who is not the initial aggressor has
no duty to retreat." People v. White, 265 Ill. App. 3d 642, 651,
638 N.E.2d 314, 320 (1994). Here, the evidence was insufficient
to show respondent and Porsha engaged in mutual and willing
combat. Instead, the evidence indicated respondent attempted to
defend herself in the crowded school bus.
Normally, this court would be reluctant to overturn a
trial court's decision following a trial, considering the trier
of fact is in the best position to view the demeanor of the
witnesses and to determine their credibility. However, in this
case and in finding respondent guilty of disorderly conduct, the
trial court noted respondent's testimony "might have been a good
*** defense to a battery." Thus, it appears the court would have
found respondent's self-defense claim a valid defense had she
been charged with battery. Because we have found self-defense
applies to charges of disorderly conduct and the evidence indi-
cated respondent acted in self-defense, the court's finding of
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guilt on the disorderly conduct charge was against the manifest
weight of the evidence. Thus, respondent's adjudications of
delinquency and wardship on the disorderly-conduct count are
vacated.
III. CONCLUSION
For the reasons stated, we affirm in part and vacate in
part the trial court's judgment.
Affirmed in part and vacated in part.
McCULLOUGH and MYERSCOUGH, JJ., concur.
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