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In Re N.w.

OPINION FILED JUNE 27, 1984.

IN RE N.W., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

N.W., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Lake County; the Hon. Charles Scott, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

A supplemental petition for adjudication of wardship was filed in the circuit court of Lake County alleging that N.W. committed the offenses of aggravated assault, battery, burglary, criminal damage to property, and theft. Subsequently, the petition was amended to include allegations of resisting a police officer.

After an adjudicatory hearing, the court directed a finding of not guilty on the allegations of burglary, criminal damage to property and two allegations of resisting a police officer. At the close of the evidence, the court found N.W. guilty of aggravated assault and battery of Curlin Pennick, theft of a stereo equalizer and resisting police officer Chrisman.

Following a dispositional hearing, the court entered judgment, committing N.W. to the Department of Corrections.

N.W. appeals raising these two issues: (1) whether the commitment judgment should be vacated because the court failed to adjudicate the minor a delinquent, and (2) whether the court abused its discretion in committing N.W. to the Department of Corrections.

At the adjudicatory hearing, Curlin Pennick testified that on May 23, 1983, he was approached in an alley in the city of Zion by N.W. and William Hughes. He stated that Hughes pointed a pistol at his face and threatened to beat him up. N.W. then grabbed Pennick. Hughes tried to punch Pennick in the face but when he ducked, Hughes hit N.W. instead. N.W. fell to the ground and Pennick ran off.

N.W.'s version of the incident in the alley differed from Pennick's testimony. N.W. stated that he and Hughes met Larry Davis and Curlin Pennick and that an argument ensued between Pennick and Hughes. During the argument Hughes displayed a "play gun." N.W. testified that he grabbed Pennick while Davis grabbed Hughes to keep them separated. Hughes then accidently hit N.W. Davis told essentially the same story.

Concerning the theft incident, Michael Harvey testified that on May 23 he was at the home of Ronda Tyson making a tape. He stated that he owned a 1978 Datsun, and he identified a stereo equalizer which he discovered had been removed from his car on May 23.

Robert Tyson and Steven Williams were also with Harvey at the Tyson house. They testified that they saw N.W. and four other boys outside of the house but did not see anyone in the vicinity of the car.

John Chrisman, a Zion police officer, testified that on the evening of May 23 he responded to a call regarding gunshots. He was looking for N.W. and saw him walking down the street with eight other people near 24th and Hebron. Chrisman stated that he observed N.W. reach in his coat and then throw something over a fence. Officer Velden, who also responded to the call, testified that he retrieved a stereo equalizer on the other side of the fence at the point where Chrisman told him N.W. had thrown something.

Chrisman also testified that he approached N.W. and announced that he was under arrest. When he led N.W. back to the squad car to frisk him, he began to struggle. Two other officers, Bridges and Lowery, arrived and helped Chrisman subdue N.W.

N.W. stated that he did not struggle with Officer Chrisman. Steve Gilmore and Jeffrey Dennis also testified that N.W. did not struggle.

• 1 Initially, the State contends that N.W.'s failure to raise the adjudication of delinquency issue at trial or object to proceeding to a dispositional hearing or to the entry of the dispositional order waives this issue on appeal. (In re Scott (1978), 62 Ill. App.3d 367, 368-69.) The law is well settled that issues raised for the first time on appeal may not normally be considered by a reviewing court. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill.2d 299.) Since the case concerns a matter of statutory interpretation and all the facts necessary for determination of the issue are before the court, this court of review may rule on the issue. Cronin v. Lindberg (1976), 66 Ill.2d 47, 61; People ex rel. Fahner v. Hedrich (1982), 108 Ill. App.3d 83, 87.

• 2 N.W. contends that the commitment order should be vacated because the court failed to adjudicate him delinquent before proceeding to the disposition. N.W. clarifies his challenge by stating that the present case does not concern when such an adjudication must take place, but rather that it did not take place at all. His argument is not ...


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