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FOURTH DIVISION

NOVEMBER 7, 2002

1-01-1025

JUSTICE HARTMAN delivered the opinion of the court:

The State appeals the circuit court's order denying its motionto permit respondent, K.J.'s, transfer to the jurisdiction of thecriminal division of the court for prosecution as an adult. TheState contends that the court erred in failing to find that therewas probable cause to believe that respondent was accountable forthe charged offenses.

The State filed a petition for adjudication of wardshipalleging that the 16-year-old minor-respondent was delinquent inthat he had committed the offenses of aggravated battery/greatbodily harm, aggravated battery with a firearm and aggravateddischarge of a firearm on September 8, 2000. The State then fileda presumptive transfer motion to permit respondent to be prosecutedunder the criminal laws of this State. 705 ILCS 405/5-805 (West2000).

At the transfer hearing, Chicago Police Detective ScottLorotkvich testified that about 11 p.m. on September 8, 2000, he was assigned to investigate a report of an aggravated battery at8700 South Yates. There, he spoke with Antoine Sneed who told himthat he, Johnny Patterson, DeJohn Pierce, Jerry Butler and "Weasle"were walking to the store at 8700 South Yates when they wereapproached by five individuals who identified themselves asBlackstone gang members. One, later identified as respondent, wasapproximately 5'2" tall, wearing braids and beads in his hair anda red shirt. He came up to Sneed and said: "Chief crazy aroundhere, all is well." Respondent then asked him why he was wearinga blue T-shirt in "Moe" territory and threatened to kick his "ass"when he came out of the store. Detective Lorotkvitch explainedthat these slogans were identified with the Blackstone street gangand that "Moe" was another word for a member of that gang. WhileSneed and Weasle were in the store, they heard three gunshotsoutside, and ran home when the shooting stopped.

About 1 a.m. the following morning, Detective Lorotkvichinterviewed DeJohn Pierce at the station. Pierce told him that he,Patterson and Butler were walking behind Sneed and Weasle whenseveral individuals confronted them and shouted gang slogans atSneed. When Sneed and Weasle went into the store, respondentapproached Pierce's group. Standing within one or two feet ofPatterson, respondent told Patterson that he would air or shoot theplace out, and that he would not even need his "strap (handgun) tobox your ass out."

While making these threats, respondent made continuous motionstowards his pocket and Pierce believed he observed the outline ofa handgun there. Pierce also related that the persons withrespondent began to surround him and his two friends making similarmotions towards their waistbands as if they had weapons. Respondent then took off his hat and made a quick motion towardsPatterson as if to throw a punch. Patterson, however, reacted bypunching respondent and knocking him to the ground. At that point,another individual pulled out a revolver and fired two shots atPatterson. Pierce helped Patterson run from the scene to 87thStreet and Crandon where the police and paramedics were called.

Detective Lorotkvitch spoke with the doctor who treatedPatterson at Christ Hospital and learned that Patterson hadsustained multiple gunshot wounds, two to his left side above thewaist and another from a bullet that traversed his front stomacharea and lodged in his groin. The doctor also reported thatPatterson had sustained a self-defense wound to his right thumb.

Detective Lorotkvich then interviewed Cory Robinson, who toldhim that he was with respondent and "Cameo" at 8700 South Yateswhen the incident occurred. Robinson stated that respondent hadgotten into a confrontation with a person much larger than himselfby making gang threats and threatening to shoot up the place. Robinson also verified that Patterson struck respondent and knockedhim to the ground, and that Cameo then pulled out a revolver andshot the victim twice.

Later that evening, Detective Lorotkvich conducted a lineupwhere Pierce, Butler and Sneed independently identified respondentand Cameo as the two aggressors in the incident. Butler alsoidentified Robinson as being present with respondent and Cameo.

Following these identifications, Detective Lorotkvichinterviewed Patterson at his home. Patterson described theincident in essentially the same manner as his friends and vieweda photo array. Patterson identified respondent as the person whoconfronted and threatened him, and Cameo and Robinson as being onthe scene.

Detective Lorotkvich interviewed respondent about 1:30 a.m. onSeptember 10, 2000, in the presence of an assistant State'sAttorney and a youth investigator. After being advised of hisMiranda rights, respondent related his version of the incident. Respondent told him that he, Cameo Johnson and Cory Robinson walkedRobinson's girlfriend to the bus stop, then went toward the liquorstore. Respondent said that he was a member of the Blackstonestreet gang and was aware that Cameo was carrying a gang handgun asprotection in the event they encountered rival gang members in thearea of 8700 South Yates.

Respondent also said that he then confronted a much largerperson at the liquor store and made several gang threats, i.e.,"Blackstones run it around here," and "all is well." He said thathe did not intend to fight this person, and just wanted to call hisbluff. Respondent then pulled his hat off, and when he made amotion towards this person, he was punched in the face.

Gersley Kendricks, the stepfather of Johnny Patterson, wascalled as a witness by respondent. Kendricks testified that hefirst talked to Patterson about the incident at the hospital on theevening it occurred. Patterson, who is 6'4" tall and weighs about200 pounds, said that he was walking to the store at 87th and Yateswhen he was confronted by a young man who said "let's air thisplace out." Patterson was told by someone that he had knocked theperson unconscious.

The circuit court found no probable cause that respondentaided, abetted or encouraged the charged offenses and denied theState's motion for transfer. On appeal, the State contends thatthere was probable cause to believe that respondent was accountablefor these crimes, and as a result, the court's denial of its motionto transfer respondent to the criminal jurisdiction was erroneousand should be reversed.

Section 5-805(2)(a) of the Juvenile Court Act of 1987 (Act)provides in pertinent part:

"(2) Presumptive transfer.

(a) If the State's Attorney files a petition,at any time prior to commencement of theminor's trial, to permit prosecution under thecriminal laws and the petition alleges thecommission by a minor 15 years of age or olderof (i) a Class X felony other than armedviolence; (ii) aggravated discharge of afirearm; *** and, if the juvenile judgeassigned to hear and determine motions totransfer a case for prosecution in thecriminal court determines that there isprobable cause to believe that the allegationsin the petition and motion are true, there isa rebuttable presumption that the minor is nota fit and proper subject to be dealt withunder the Juvenile Justice Reform Provisionsof 1998 *** and that, except as provided inparagraph (b), the case should be transferredto the criminal court." 705 ILCS 405/5-805(2)(a) (West 2000) (section 805(2)(a)).

Section 5-805(2)(b) of the Act (705 ILCS 405/5-805(2)(b) (West2000) (section 5-805(2)(b))), provides that the court shall enteran order permitting prosecution under the criminal laws unless thecourt finds, based on clear and convincing evidence, that the minorwould be amenable to the care, treatment, and training programsavailable through the juvenile court.

Section 805(2)(a) requires that a probable cause hearing beheld for such a motion to transfer, and the rebuttable presumptionin favor of transfer applies only if the court finds probable causeto believe that the allegations in the petition and motion aretrue. In re W.J., 284 Ill. App. 3d 203, 672 N.E.2d 778 (1996). Atransfer hearing is not adjudicatory in nature. People v. Taylor,76 Ill. 2d 289, 391 N.E.2d 366 (1979). Rather, it has been foundto resemble a preliminary hearing where the court determineswhether the charged offense has been committed, and, if so, whetherthere is probable cause to believe that it was committed by theaccused. People v. P.H., 145 Ill. 2d 209, 582 N.E.2d 700 (1991)(P.H.). The proceeding does not seek to determine guilt orinnocence. P.H., 145 Ill. 2d at 229.

In this case, the evidence clearly showed that Patterson hadbeen shot with a gun and injured. Since respondent did not do theshooting, the inquiry focused on whether there was sufficientevidence (see In re R.T., 271 Ill. App. 3d 673, 648 N.E.2d 1043(1995) (R.T.) ("some evidence" in support of the criminal conductcharged is sufficient) to establish probable cause that respondentwas accountable for the shooting.

A person is legally accountable for the criminal conduct ofanother when:

"Either before or during the commission of anoffense, and with the intent to promote orfacilitate such commission, he solicits, aids,abets, agrees or attempts to aid, such otherperson in the planning or commission of theoffense." 720 ILCS 5/5-2(c) (West 2000).

This section incorporates the common design rule which providesthat where two or more persons engage in a common criminal designor agreement, any acts committed by one person in the furtheranceof it are considered to be the acts of all parties to the design oragreement and all are equally responsib1e for the consequences ofthe further acts. People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746(1984). Evidence of the person's involvement in a gang or gang-related activity is admissible to show common purpose or designprovided that such membership or activity is related to the crimecharged. People v. Jones, 259 Ill. App. 3d 905, 632 N.E.2d 293(1994). Moreover, where the evidence indicates that the person wasinvolved in the spontaneous acts of the group, the fact that thecriminal acts were not committed pursuant to a preconceived plan isno defense. In re W.C., 167 Ill. 2d 307, 657 N.E.2d 908 (1995).

The evidence presented at the transfer hearing showed thatrespondent told police that he was a member of the Blackstonestreet gang, and on the night in question was with Cory Robinsonand Cameo Johnson. He also admitted that he knew Cameo wascarrying a "nation" gun for protection against rival gang memberswho might be in the area in which they were walking. See People v.Brown, 249 Ill. App. 3d 986, 670 N.E.2d 1090 (1993). Otherevidence showed that respondent confronted Sneed and Weasle withgang slogans identified with the Blackstone street gang andthreatened to kick Sneed's "ass" when he left the store.

Respondent then confronted Patterson with threats to air orshoot the place out and physically harm Patterson. As he talked,respondent reportedly made continuous motions towards his pocket,as did his companions who also began to surround Patterson and hisfriends. Respondent then took off his hat and made a quick motiontowards Patterson as if he was going to throw a punch. Patterson,however, punched respondent first knocking him to the ground. Atthat point, Cameo pulled out a revolver and fired two shots atPatterson.

Although mere presence at the scene of an offense does notrender one accountable (People v. Taylor, 164 Ill. 2d 131, 646N.E.2d 567 (1995)), the evidence in this case shows that respondentwas not only present, but with knowledge that his companion wasarmed against an encounter with rival gang members, initiated suchcontact with Patterson and his companions using provocative gangslogans and threats of physical harm. Through these actions andhis feigned movement toward Patterson, he created the situationthat led to the physical contact and the shooting. See People v.Eubanks, 283 Ill. App. 3d 12, 669 N.E.2d 678 (1996). The compositeactivity also evidenced a community of unlawful purpose to renderhim accountable for the criminal acts charged. People v. Torres,100 Ill. App. 3d 931, 427 N.E.2d 329 (1981).

The State presented sufficient evidence to establish probablecause to believe that respondent was accountable for the chargedoffenses. The circuit court abused its discretion in denying theState's motion to transfer based on its ruling that there was noprobable cause. R.T., 271 Ill. App. 3d at 679.

For the reasons set forth above, the circuit court's order isreversed and the cause is remanded for further proceedingsconsistent with section 805-2(b).

Reversed and remanded.

THEIS, P.J. and KARNEZIS, J., concur.