In Re CL

534 N.E.2d 1330, 180 Ill. App. 3d 173
CourtAppellate Court of Illinois
DecidedFebruary 22, 1989
Docket1-87-0245, 1-87-0247 cons
StatusPublished
Cited by15 cases

This text of 534 N.E.2d 1330 (In Re CL) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CL, 534 N.E.2d 1330, 180 Ill. App. 3d 173 (Ill. Ct. App. 1989).

Opinion

180 Ill. App.3d 173 (1989)
534 N.E.2d 1330

In re C.L. et al., Minors (The People of the State of Illinois, Petitioner-Appellee,
v.
C.L. et al., Minors, Respondents-Appellants.

Nos. 1-87-0245, 1-87-0247 cons.

Illinois Appellate Court — First District (3rd Division).

Opinion filed February 22, 1989.

*174 *175 Randolph N. Stone, Public Defender, of Chicago, for appellants.

Richard M. Daley, State's Attorney, of Chicago, for the People.

Judgment affirmed.

PRESIDING JUSTICE FREEMAN delivered the opinion of the court:

Respondents, C.L. and A.R., were charged with two counts each of aggravated assault in petitions for adjudication of wardship brought by the State. The trial court adjudicated respondents to be delinquent. The court credited C.L. for 30 days spent in custody and placed him on probation for one year. The court committed A.R. to the juvenile detention center for 25 days and also placed him on probation for one year. Respondents appeal.

The petitions in this case were based on respondents' alleged commission of the offense of aggravated assault against Earlean Collier and George Henderson. On October 22, 1986, at approximately 9 p.m., Earlean Collier and her husband, George Henderson, were at home with their children when they heard noise in front of their home. When Earlean and George went out to their front porch to investigate, they found one of their daughters having an argument with Tracy Smith, who lived next door. Earlean and George also saw A.R. at the scene. A.R. was wearing a black jogging suit with yellow stripes down the sides. George heard A.R. say that if George's daughter was going to fight Tracy, A.R. "`was going to get into it.'" George then grabbed A.R. by the arm and told him he wanted to talk. *176 George led A.R. down the street and was talking to him when A.R.'s girlfriend approached them. A.R. told her to get C.L. "`and tell him to bring that thing.'" While George and A.R. were talking, C.L., who was dressed like A.R., came up to them and asked A.R., "`What's happening, man?'" When George told C.L. to give them "some space," C.L. left and walked over to Earlean's and George's porch.

When C.L. walked over to the porch, he told Earlean that she "`better tell [George] to get away from [A.R.] because [A.R.] will pop him.'" Earlean testified that "pop" was street slang for "shooting." George returned to the porch as C.L. was leaving. While Earlean and George were on the porch, A.R. walked up, stood in front of the porch and said, "`Don't nobody put his hands on me. You're going to pay for that.'" George then started walking off the porch to talk to A.R. "man-to-man." At that point, C.L. grabbed A.R. and said, "`Man you don't got to take that shit."

Earlean testified that George then walked back up the stairs and said, "He's really got a gun." Earlean said, "`What?'" and turned around to look at A.R. George then pushed her inside the house. Earlean testified that when she turned around "[h]e had the gun in his hand and [waved] it." Earlean stated that after George pushed her inside, "we went upstairs to call the police." Earlean also testified that black and yellow are the colors of the Vice Lords street gang. Earlean identified the respondents while they sat in a police car later that night.

George's testimony, some of which is included above, was substantially the same as Earlean's. He additionally testified that after he pushed Earlean inside the house, C.L. asked A.R., "`Man do you want to pop?'" and A.R. yelled, "`[S]ay, let's pop,'" which George knew meant "shoot." George testified that when he heard that, he felt frightened because he didn't know "if he was going to shoot me or * * * my wife." George further testified that, after he heard those words, he went upstairs and called the police. After the police arrived, they and George toured the area looking for the two boys. George identified the respondents after the police picked them up.

OPINION

• 1 We first address the State's argument that respondents have waived every issue they now raise due to their failure to file a post-trial motion. The State relies on Supreme Court Rule 660(a), providing that appeals from final judgments in delinquent minor proceedings are "governed by the rules applicable to criminal cases." (107 Ill.2d R. 660(a).) Based on that rule, the State argues that the requirement *177 of a post-trial motion contained in section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 116-1(b)) applied to the proceedings in this case. We disagree.

In contrast to the State, we construe the term "rules" as used in Rule 660(a) to mean simply the "supreme court rules" applicable to criminal appeals, not rules codified in the Code of Criminal Procedure or general rules of criminal trial practice. Section 5-18 of the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 805-18), cited by the State at oral argument in support of its waiver argument, merely provides that, inter alia, the rules of evidence in criminal proceedings are applicable to delinquency hearings. Moreover, In re Driver (1977), 46 Ill. App.3d 574, 360 N.E.2d 1202, has already rejected the State's argument. The court stated:

"Driver is attacking a bench finding of wardship based on the evidence. And such an attack is analogous to a criminal defendant's appellate attack on the sufficiency of evidence to convict in a criminal bench trial. It has been held that the failure to file any post-trial motion in a criminal bench trial does not waive on appeal issues relating to the sufficiency of the evidence, errors in admission of prejudicial hearsay, and failure to grant a motion to suppress. [Citations.] This is not a case where the alleged error was not brought to the trial court's attention. In the instant case, no written motion was necessary to preserve the issue for review." Driver, 46 Ill. App.3d at 575-76.

Respondents first contend that the trial court erred in allowing Earlean to testify that the colors yellow and black, the colors of jogging outfits worn by respondents on October 16, 1986, were the colors of the Vice Lords street gang. Respondents argue that seeing someone in a black and yellow jogging suit would not signify to a reasonable person that the wearer was in a street gang or place such a person in apprehension of receiving a battery from the person wearing the suit.

The State asserts that respondents misconstrue the term "reasonable" as used in section 12-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-1). The State contends, citing People v. Alexander (1976), 39 Ill. App.3d 443, 350 N.E.2d 144, that "reasonable" as used in section 12-1 refers to a subjective, not objective, standard, i.e., whether the particular victim involved reasonably apprehended receiving a battery under the circumstances of the case.

• 2 We cannot agree with the State that the standard employed in the statutory definition of assault is subjective. The element of reasonable apprehension is the traditional element of assault borrowed *178 from the law of torts. (Ill. Ann. Stat., ch. 38, par.

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Cite This Page — Counsel Stack

Bluebook (online)
534 N.E.2d 1330, 180 Ill. App. 3d 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cl-illappct-1989.