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09/30/94 PEOPLE STATE ILLINOIS v. KENNETH E. FAUBER

September 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH E. FAUBER II, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Woodford County. No. 92CF111. Honorable Richard M. Baner, Judge Presiding.

As Corrected November 22, 1994.

Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, P.j., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On November 4, 1992, an indictment was returned in the circuit court of Woodford County which, in separate counts, charged defendant Kenneth E. Fauber II with (1) aggravated battery by committing a battery in which he knowingly or intentionally caused great bodily harm to Chris Johnson (720 ILCS 5/12-4(a) (West 1992)); (2) aggravated battery by committing a battery on Chris Johnson, who was then on a public way (720 ILCS 5/12-4(b)(8) (West 1992)); and (3) mob action (720 ILCS 5/25-1(a)(1) (West 1992)). On January 23, 1993, after a jury trial, the court entered judgments on a verdict finding defendant not guilty of the aggravated battery charges but guilty of mob action. On March 11, 1993, the court sentenced defendant to six days' incarceration, 30 months' probation, and three months of home confinement.

Defendant has appealed, contending: (1) the evidence did not support the conviction of mob action; (2) the court erred in instructing the jury in regard to the proof of defendant's guilt of mob action by accountability; and (3) the court erred in admitting into evidence as substantive proof of defendant's guilt the statement of a defense witness which was inconsistent with the testimony of that witness at trial. We hold that (1) the proof was sufficient; (2) no reversible error occurred in the instruction to the jury in regard to accountability; and (3) the court properly admitted the evidence of the prior inconsistent statement as substantive evidence.

Section 25-1(a)(1) of the Criminal Code of 1961 defines the type of mob action with which defendant was charged and of which he was convicted as consisting of "the use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law." (720 ILCS 5/25-1(a)(1) (West 1992).) The violence which occurred here was an attack on Chris Johnson by Brad Grant and at least one other, and a subsequent fight in which Johnson attempted to defend himself. This occurred on the grounds of Metamora High School on October 16, 1992, at approximately 10 p.m. Johnson was a member of the Metamora High School football team, which had played a game that night at Chillicothe and had returned by bus to the Metamora High School.

Johnson testified to the following chain of events after he arrived at the high school grounds and alighted from the bus. He first went into the locker room and returned his playing gear. He then returned to his automobile, which was parked in a school parking lot. He waswaiting in the vehicle for a friend, sitting in the driver's seat. The lighting there was weak. Someone in a green jacket approached, tapped on the window, and asked his name. He rolled down the window and a second person, later identified as Brad Grant, hit him in the face. Johnson then attempted to get out of the vehicle but Grant kept pushing the door and preventing him from getting out. He used his feet to push open the door and the person in the green jacket hit him on the leg as he tried to get out. As he tried to get away, Grant punched him in the mouth and took Johnson to the ground. They then rolled over with Johnson getting on top but someone else kicked Johnson. In the process Grant hit Johnson several other times before some person stopped the fight and Grant left.

Johnson testified that he knew defendant because he had seen him at lunch that day wearing a green jacket. Johnson further stated that he was "pretty sure [defendant] was the one that was kicking [him] when [he] had the door open" and that person was wearing a green coat which was "thin" and "knee high." Johnson maintained that the person described was the only person whom he saw at that time who was wearing a green coat. Johnson also maintained that defendant had been watching him at lunch that day in the school cafeteria.

Johnson's identification of defendant as the person who hit him on his legs was impeached by (1) testimony of Don Seglar that he was present at the episode and saw Chad Doty kick Johnson but that defendant did not punch or kick Johnson; (2) testimony of Mike Casey, Mike Sheets, and Joel Prepejchal to the same effect; and (3) testimony of defendant that he was present at the episode, standing four to five feet from Johnson but did not touch Johnson. Evidence was also presented that both Doty and defendant were wearing green jackets at the time but another witness testified that Doty was wearing a black and purple coat at the time. Johnson's identification of defendant was further questioned by evidence that defendant did not have lunch on the day of the offense during the same period that Johnson did.

Further evidence of defendant's guilt arose from introduction into evidence of a prior inconsistent written statement of Aaron Wood. As we have indicated, and as we subsequently explain, this document was properly admitted into evidence. Wood was called by the State and stated that he was 14 years old and a friend of both Johnson and defendant. He then stated that he was present at the fight, sitting in the front passenger side of defendant's automobile, which was parked near where Johnson and Grant were fighting, but that he did not ever see defendant or Doty participate in the fight. Wood was then presented with the statement which he admittedsigning. Wood then explained that "people were saying a lot of stuff and [he] basically just wrote down what [he] thought had happened that night." That statement provided as follows:

"I Aaron Wood was sitting in [defendant's] car with Don Seglar also in the car. [Defendant] was out of the car while Chris Johnson was walking to Chris' car. Brad hit Chris twice while Chris was in his own car, Chris then jumped out the passenger side door. Chris then ran around to the back of the car and so did Brad. Brad then grabbed Chris and started hitting Chris and brought Chris to the ground. [Defendant] and Chad Doty then ran over to where Brad and Chris were and they both started hitting and kicking Chris then [defendant], Chad and Brad ran back to [their] cars and took off."

On cross-examination, Wood maintained that he could not see much of the fight and Grant was the only person he saw approaching the automobile and he did not see defendant or Doty hitting Johnson. He stated he was now telling the truth and his prior statement was based on what he had heard.

Some corroborating proof of defendant's guilt was from testimony of James Dansart, dean of Metamora High School, in regard to conversations he had with defendant. According to Dansart defendant told him he was present at the fight because he knew it was going to happen and if it became unfair he was going to jump in to keep it fair. Dansart also said defendant admitted that at the time of the fight he wore a green coat and had a metal object in his pants pocket which defendant claimed he used as a counterbalance when hunting. According to Dansart, defendant maintained that he intended to enter the fight to keep it fair only if it occurred at Chillicothe where the game was played and not if it occurred at Metamora. Defendant also admitted he did not hunt on the day of the fight but he had intended to do so.

The parties recognize the standard for review of a criminal conviction requires the evidence to be viewed "in the light most favorable to the prosecution," and if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," the conviction must be affirmed. (Emphasis in original.) ( Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77, 87 Ill. Dec. 910.) "Whatever conflicts may have existed in the evidence, resolution of such inconsistencies is wholly within the province of the jury. [Citations.] Moreover, the jury is also entrusted with determinations of credibility." People v. Sanchez (1986), 115 Ill. 2d 238, 261, 503 N.E.2d 277, 284, 104 Ill. Dec. 720.

Clearly, Grant and whoever acted with him used "force or violence" against Johnson, "acting together and without authority of law" and disturbed the peace of a large number of people. The person who hit or kicked Johnson's legs as Johnson was attempting to leave the vehicle clearly acted with Grant as a principal. Any "rational" jury could have concluded beyond a reasonable doubt that defendant was that person.

The jury could have believed the prior written statement of Aaron Wood which speaks in terms of a firsthand view of the scene. The jury saw and heard Wood's refutation of that statement and was in a position to determine whether Wood was then telling the truth. As Wood stated, he was a friend of both Johnson and defendant, and the jury could recognize that he could well recant an accurate earlier statement when he became aware of the jeopardy faced by defendant. Moreover, at trial, Wood admitted that he was right next to where Johnson and Grant were fighting. This was inconsistent with his contention that he could not see what was taking place and made his statement upon the basis of what he heard from others. He claimed not to have seen either defendant or Doty kick or hit Johnson although the evidence was very strong that one of them did.

Johnson's identification of defendant as the one who, with Grant, attacked him has some weakness because it was based so much upon the color of that other assailant's coat but evidence was presented that defendant was seen wearing a green coat and that he had admitted this was so. Evidence was also admitted that Doty was not wearing that type of coat at that time. The jury could reasonably have concluded that Johnson's identification of defendant was accurate. The jury could believe that defendant's alleged intent to enter the fight only if it occurred in Chillicothe was not true and could conclude from Dansart's testimony that defendant came on the scene here prepared to fight. This, in turn, was corroborating evidence that defendant did, in fact, enter the fray immediately in aid of Grant.

The evidence was strong enough that "any rational trier of fact" after viewing and hearing the evidence, could find that defendant's guilt as a principal was proved beyond a reasonable doubt. We need not decide whether the proof would have supported a verdict of guilty upon a theory of accountability.

However, the major thrust of defendant's argument arises in regard to instructing the jury concerning accountability as it relates to the court's handling of a question sent to the court by the jury during deliberations. Over defense objection, the jury was instructed on the definition of accountability. (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (3d ed. 1992) (hereinafter IPI Criminal 3d).) The issues instruction in regard to the aggravated battery offense included proof by accountability. The instruction concerning the mob action offense made no reference to accountability. The defense made no objection to the lack of this element in these instructions and did not offer instructions which did. Then, during deliberations, the jury sent a note to the court which stated as follows:

"Does defendant himself have to specifically use force or violence to be considered guilty of mob action, or does knowledge and planned involvement of the mob using ...


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