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In Re Rivera





APPEAL from the Circuit Court of Cook County; the Hon. JAMES P. PIRAGINE, Judge, presiding.


A petition for adjudication of wardship was filed charging the 15-year-old minor-respondent, Michael Rivera, with delinquency for having committed the offenses of arson of personal property, aggravated battery and use of an intoxicating compound. (Ill. Rev. Stat. 1973, ch. 38, pars. 20-1(a), 12-4(b)(1), 81-1.) Following a bench trial, respondent was found delinquent for having committed the offense of aggravated battery. A directed finding was entered for respondent on the arson charge, while the use of intoxicating compound charge was dismissed. Respondent was committed to the Department of Corrections.

Respondent appeals from the finding of delinquency, contending that he was not proven guilty beyond a reasonable doubt of having committed the offense of aggravated battery.

We affirm the trial court.

At the trial, Miguel Perez, 12 years of age, testified for the State. No issue was raised as to his competency to testify. On direct examination, Perez stated that at 6 p.m. on January 11, 1975, he was visiting Inez Preston at her home. He heard noises coming from the rear of the house. He looked out on the back porch where he saw a youth, whom he recognized as respondent, light matches and set fire to a lampshade and a bedspread. Perez screamed for the aid of Renee Preston, Inez Preston's daughter, who was in the basement. After respondent set the fire, he ran away. At 6:30 p.m. that same evening, Perez heard banging noises on the back porch window and went to investigate. He then watched while respondent lit a match and threw it on a carpet which was stored on the back porch.

Perez further stated that at 8 p.m. that evening he again heard noises emanating from the area of the rear porch. When Perez opened the door to the porch, respondent jumped upon him. Respondent was holding a switchblade knife with which he ripped the two shirts Perez was wearing. Although Perez had kept the shirts at home since the date of the incident and his mother had washed them in the interim, Perez testified that the shirts were in substantially the same condition as they were on the date of the incident.

Perez's testimony on cross-examination in substance was similar to that elicited upon direct examination. However, he recounted the chronology of events differently. Perez stated that the knife attack occurred at 6 p.m., while on direct examination he had indicated 8 p.m. In addition, Perez testified on cross-examination that respondent had attacked him from the side, but he agreed with defense counsel that the tears in the shirt appeared to be in front. Perez also stated that he was not physically injured during the attack. Perez asserted that the fire was started at 6:30 p.m. and that this was the only burning incident that evening. On direct examination he had alluded to two fire incidents.

Perez further testified that he screamed for help when he was attacked. Renee Preston responded but by the time she arrived, respondent had fled. Renee Preston called the police at that time. Perez stated he recognized respondent in connection with the events he described and that he had known respondent for five years.

Respondent testified on his own behalf. He stated he did not threaten or attack Perez with a knife on January 11, 1975, or at any other time. He also denied having been on the rear porch of the Preston residence on January 11, 1975. Respondent stated he was with friends of his on January 11, 1975, and that they had walked around together from 4:30 to 6 p.m. He testified that at 6 p.m. he left his friends and went to the home of a woman named Dawn. Respondent called no other witnesses on his behalf.

After closing arguments, the court entered a finding of delinquency on the grounds of aggravated battery.


• 1 The finding of delinquency can be sustained only if the evidence is sufficient to prove, beyond a reasonable doubt, that respondent was guilty of committing aggravated battery. (In re Whittenburg (1973), 16 Ill. App.3d 224, 305 N.E.2d 363.) In the instant case, the finding that an aggravated battery occurred was based upon the sole testimony of the victim, Miguel Perez. His testimony was in direct conflict with the testimony of respondent, who denied being present at the scene of the occurrence. In effect, the trial court was confronted with determining the credibility of the testimony of Miguel Perez and of respondent.

A conviction may be supported by the testimony of a single witness, even if the testimony is contradicted by the accused, but the witness must prove himself positive and credible. (People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631; People v. Jennings (1976), 37 Ill. App.3d 982, 347 N.E.2d 421.) It is axiomatic that the trial judge, sitting without a jury, is in the best position to view the demeanor of the witness testifying before him, and a reviewing court will set aside the finding only if the evidence is so unsatisfactory as to leave a reasonable doubt of guilt. (People v. Akis (1976), 63 Ill.2d 296, 347 N.E.2d 733; People v. Owens (1976), 45 Ill. App.3d 1012, 360 N.E.2d 481; People v. Harbarugh (1976), 40 Ill. App.3d 295, 352 N.E.2d 412.) In reviewing the record, we find that the trial judge could properly have chosen to believe the testimony of Miguel Perez.

• 2 Respondent urges that the trial judge's finding should be reversed since the recounting of events by the complaining witness contained major inconsistencies which casts serious doubt upon the credibility of his testimony. (People v. Poltrock (1974), 18 Ill. App.3d 847, 310 N.E.2d 770.) Respondent points to (1) an alleged two-hour discrepancy between the time of the physical attack attested to by Perez on direct examination and as later disclosed by him during his cross-examination; (2) Perez's account of two alleged burning incidents and his later statement that there was only ...

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