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In Re D.w.

OPINION FILED DECEMBER 19, 1986.

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

v.

D.W., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Champaign County; the Hon. Robert K. Steigmann, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 12, 1987.

D.W., a minor, appeals from an order of the circuit court of Champaign County revoking his probation and ordering that he be committed to the Department of Corrections, Juvenile Division. The relevant facts follow.

On May 24, 1985, a delinquency petition was filed in the circuit court of Champaign County alleging that D.W., a minor, committed the offenses of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3) and theft (Ill. Rev. Stat. 1985, ch. 38, par. 16-1). In exchange for D.W.'s offer to admit and stipulate to an included charge, burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1), the State agreed to seek dismissal of the theft charge. Following the court's acceptance of D.W.'s offer to admit and stipulate to the burglary charge, the court declared him to be a delinquent minor on July 3, 1985. The theft charge was dismissed. At a further dispositional hearing on August 20, 1985, D.W. was placed on probation for 18 months and ordered to serve 6 days' detention.

On December 31, 1985, a petition to revoke probation was filed alleging that D.W. had committed the offense of assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-1).

On March 18, 1986, an amended petition to revoke probation was filed alleging that D.W. had committed the offense of disorderly conduct (Ill. Rev. Stat. 1985, ch. 38, par. 26-1(a)(1)). The amended petition alleged that the "respondent minor knowingly stated to Edward Lemke words to the effect that he was going to `kick his ass' in such an unreasonable manner as to alarm and disturb Edward Lemke and provoke a breach of the peace."

An adjudicatory hearing was held on April 3, 1986. Upon motion of the State, the court dismissed the petition to revoke probation filed on December 31, 1985. The State proceeded on the amended petition.

Edward Lemke testified that before school on October 16, 1985, D.W. stated to him that if Lemke did not give D.W. $5 he owed him by lunch time, D.W. would "kick [his] butt." Upon hearing this, Lemke was frightened as well as alarmed and disturbed. Lemke brought the matter to the attention of his counselor.

On cross-examination Lemke stated that D.W. neither screamed at him nor raised a fist to him. Lemke recalled that other people were around at the time of the conversation between him and D.W.

Gerald Schweighart, an investigator for the Champaign police department, testified that he spoke with Lemke and D.W. on October 16, 1985. Schweighart testified that D.W. told him that he simply told Lemke that he wanted the money allegedly owed to him by the next day.

After arguments of counsel, the court found the amended petition to be proved by a preponderance of the evidence.

A dispositional hearing was held May 8, 1986, at which the court ordered that D.W. be committed to the Department of Corrections, Juvenile Division.

Also on May 8, 1986, D.W. filed a timely notice of appeal. On appeal D.W. argues that the State failed to prove that he committed ...


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