APPEAL from the Circuit Court of Sangamon County; the Hon.
BYRON E. KOCH, Judge, presiding.
MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendants, Craig Carraro and William Gray, were jointly represented by Bruce Beeman and were convicted, following a trial without a jury, of battery and criminal damage to property in excess of $150. Gray was sentenced to concurrent terms of 1 to 2 years' imprisonment on the charge of criminal damage to property and 6 months for the battery conviction. Carraro was sentenced to concurrent terms of 2 years' probation and 60 days' incarceration on each count. Both defendants appeal their convictions.
At the defendants' joint trial, the complaining witness, John Duckworth, testified that on July 25, 1977, he was driving on Maple Avenue in Springfield, Illinois. After coming to a stop, at an intersection, the driver of a car in front of his, whom Duckworth identified as Carraro, got out of his car and walked back to Duckworth's vehicle. Carraro complained to Duckworth about his stopping too close to his (Carraro's) car. Duckworth responded that he wasn't near Carraro's vehicle. A heated discussion ensued until finally, according to Duckworth, Carraro began punching Duckworth through the open window of his car. At about the same time Gray, a passenger in Carraro's car, came back to Duckworth's vehicle and began spitting in Duckworth's face.
At that point, Duckworth attempted to leave, by pulling his car around Carraro's and into a parking lot. After finding his path blocked, he decided to back out of the lot in the direction from whence he came. Duckworth admitted he was frightened and that, as he rapidly backed up, in the direction of Carraro and Gray, who were standing in the street, his tires squealed. In this process, his car stalled and he was unable to restart it. Carraro and Gray then came up to his car and one began to kick the left side of the car and the other kicked the front end. Thereafter, Duckworth left his car and began walking towards the Coble Animal Hospital to telephone the police and, while doing so, he was attacked by one of the defendants and, thereafter, both defendants assaulted and kicked him.
Rex Coble testified he saw both defendants attack Duckworth outside of the clinic and both kick Duckworth's car as they left the scene. Frank Coble saw only one of the defendants kick Duckworth and the other one kick the car. He could not, however, identify which defendant did what particular act.
Two other witnesses, Dave Colburn and Steve Clutts, testified, as had Frank Coble, that they saw one of the defendants kick Duckworth and the other kick his car. These two witnesses, were likewise unable to conclusively identify which defendant had kicked Duckworth and which one had kicked the car.
Detective Dennis Dedlak, who was first dispatched to the scene, testified that Carraro and Gray returned to the scene a short time after he arrived and appeared ready to fight. According to Sedlak and other witnesses, both men used abusive language and threatened to "get even" with the witnesses. After the defendants were placed under arrest and read their rights, Carraro allegedly admitted to Sedlak that he had kicked Duckworth's car and had physical contact with him. Carraro claimed that the reason the incident had occurred was that Duckworth had pulled up too close to his newly painted car. Sedlak also testified that Gray made admissions substantially similar to Carraro's. Detective Oren Dalby, who was present when Sedlak questioned the defendants, corroborated Sedlak's testimony concerning Carraro's admissions, but he could not recall whether Gray had made similar statements.
Both defendants testified on their own behalf. Carraro testified that Duckworth drove up behind his car, skidding and lurching his car forward within inches of Carraro's. Carraro got out of his car, walked back to Duckworth, and told him to "cool it" because he had just had his car painted. According to Carraro, Duckworth swung his arm up at him and he knocked it down. Duckworth then pulled his car out and began driving towards Carraro. To avoid being hit, Carraro kicked himself away from Duckworth's car, denting the door. Gray, who according to Carraro had remained in his car, then got out and came over to see if he (Carraro) needed any help.
Carraro testified that, as Duckworth backed out of the parking lot, he believed that Duckworth was trying to run them down. He claimed he followed Duckworth over to the animal clinic to ask him why he had tried to run into them. He stated that Duckworth began to wave his arms and kick and Carraro responded by striking Duckworth in "self-defense." Carraro also testified that Gray took no part in this altercation. Finally, during direct examination, defense counsel elicited testimony from Carraro, that as he and Gray were leaving the scene, Gray walked over to Duckworth's car and kicked the grill on the front end.
Following Carraro's testimony, Gray testified and corroborated Carraro with regard to the manner in which Duckworth drove up behind Carraro's vehicle. Gray claimed, consistent with Carraro's testimony, that he had remained in Carraro's car and only got out after Duckworth had pulled into the parking lot. Gray further stated that as Duckworth pulled out and drove around Carraro's car, he saw Carraro fall back out of the path of Duckworth's car.
Gray corroborated Carraro's testimony regarding two other points: the manner in which Duckworth backed out of the parking lot, almost hitting them; and that Duckworth initiated the physical altercation outside the animal clinic. Gray similarly denied that he took part in this confrontation between Carraro and Duckworth. Finally, defense counsel elicited an admission by Gray that, as he and Carraro were leaving the scene, he walked over to Duckworth's car and kicked the grill. Gray stated that he had done so because he was extremely upset with Duckworth, who he felt had tried to run him down. Gray asserted, however, that this was the only damage he caused to Duckworth's vehicle and that the kick had only resulted in denting a few chrome strips on the grill.
On appeal, both defendants initially contend that the evidence failed to establish beyond a reasonable doubt that each defendant was accountable for the acts of the other in damaging Duckworth's vehicle. Thus, they argue the evidence concerning the total amount of damage to the automobile was insufficient to convict either of felony criminal damage to property. Both essentially claim that the incident in question involved two distinct, separate episodes and that each was merely present when the other acted to cause damage to the automobile. For example, Gray acknowledged that, without justification, he kicked the front grill area of the car. However, he contends that this was the only damage which he caused. On the other hand, he asserts that Carraro acted entirely independently of Gray, when he kicked the side of Duckworth's car, supposedly in self defense. Both defendants claim that Gray remained in Carraro's automobile, during the first incident, when Carraro kicked against the vehicle to avoid being hit. Similarly, the defendants' testimony supported Carraro's argument that Carraro had no real connection with Gray's act.
1, 2 In order to establish guilt under the theory of accountability, the State must prove that: (1) the defendant solicited, aided, abetted, agreed, or attempted to aid the other in the planning or commission of the offense; (2) this participation must have taken place either before or during the commission of the offense; and (3) it must have been with the concurrent specific intent to promote or facilitate the commission of the offense. (People v. Wright (1976), 43 Ill. App.3d 458, 357 N.E.2d 224; People v. Tillman (1971), 130 Ill. App.2d 743, 265 N.E.2d 904.) With regard to this question, it is well established that mere presence alone, at the scene of a crime, is not enough to prove accountability. (People v. Owens (1975), 32 Ill. App.3d 893, 337 N.E.2d 60.) As stated above, both defendants claim they were merely present when the other acted and, therefore, are not guilty of aiding or abetting each other.
3 In direct contrast to the defendants' version of the occurrence, is the testimony of the complainant. Duckworth claimed that, with regard to the first half of the incident, both defendants assaulted him, Carraro by punching him and Gray by spitting at him. He further testified that both Carraro and Gray kicked his car after it had stalled and come to a stop and while he was still in it. This testimony, thus, contradicted Carraro's claim of self-defense. Additionally, there were the admissions by Carraro and Gray, according to Detective Sedlak, that they had physical contact with Duckworth and had kicked his car. Based on these admissions and ...