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11/03/95 L.B. v. L.B.

November 3, 1995

IN RE L.B., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
L.B., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County. No. 91-J-343. Honorable Steven M. Nash, Judge, Presiding.

Released for Publication December 5, 1995.

The Honorable Justice Rathje delivered the opinion of the court: McLAREN, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

The circuit court adjudicated respondent, L.B., a delinquent minor on the basis of his having committed the offense of unlawful use of weapons (720 ILCS 5/24--1(a)(4) (West 1992)). Respondent appeals, contending that the court erred in adjudicating him delinquent based on an offense which was not a lesser included offense of the crime charged in the delinquency petition.

The State filed a supplemental delinquency petition alleging that respondent committed the offense of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1992)). The supplemental petition alleged that respondent knowingly fired a gun in the direction of another.

The evidence at the hearing generally showed that respondent was involved in a gun battle at the Fairgrounds housing project in Rockford on December 8, 1993. During this incident, someone shot Anquin St. Junious in the foot. Several different versions of the incident emerged at the hearing, but no one who testified stated that he saw respondent shoot in the direction of St. Junious. Mikey Catlin, who was with respondent on December 8, testified that respondent shot at a wall and away from St. Junious. He disavowed his previous statement that respondent had shot in St. Junious's direction.

Respondent himself gave the police three different versions of his involvement in the incident. He first denied being at the Fairgrounds on December 8. He later admitted being there but denied having a gun. Finally, he said that he had a gun but did not fire it. His hearing testimony mirrored the third version.

The court found that the State had failed to prove that respondent committed the aggravated discharge of a firearm. However, the court noted that the evidence did prove that respondent violated at least two subsections of the unlawful use of weapons statute and also committed the offense of possession while under the age of 18 of a firearm of a size which may be concealed upon the person (720 ILCS 5/24--3.1(a)(1) (West 1992)). The court asked counsel to present authority on the issue of whether these could be considered lesser included offenses.

The court ultimately adjudicated respondent delinquent based on a violation of section 24--1(a)(4) (720 ILCS 5/24--1(a)(4) (West 1992)). Respondent filed a timely notice of appeal. He contends that the court erred in finding that unlawful use of weapons is a lesser included offense of aggravated discharge of a firearm. Respondent points out that section 24--1(a)(4) contains an element not alleged in the petition, the requirement that the weapon be concealed. Respondent notes that the element of concealment is also present in the possession offense, although this offense was not included in the order of adjudication.

In People v. Novak (1994), 163 Ill. 2d 93, 205 Ill. Dec. 471, 643 N.E.2d 762, the supreme court adopted the charging instrument approach to determine whether defendant was properly convicted of a lesser included offense. The court recited the established principle that a defendant may not be convicted of a crime with which he was not charged unless it is a lesser included offense of the crime expressly charged. ( Novak, 163 Ill. 2d at 105.) The court considered several approaches to determining what constitutes a lesser included offense and ultimately decided to follow the charging instrument approach. ( Novak, 163 Ill. 2d at 112-13.) Under this approach, the court must determine whether the crime of which defendant was found guilty contains an additional element not present in the offense charged. If it does, it cannot be a lesser included offense. See Novak, 163 Ill. 2d at 106-07.

Here, as noted previously, the offense which forms the basis of the delinquency adjudication contains an element not present in the offense with which respondent was initially charged: the element of concealment. The State does not dispute this analysis of the elements of the offenses, but argues that juvenile petitions are not subjected to the same standard of scrutiny as are the charging instruments in adult criminal prosecutions.

In reviewing the sufficiency of a delinquency petition when challenged for the first time on appeal, a court need determine only whether the petition apprises the accused of the precise offense with sufficient specificity to prepare his defense and to bar a future prosecution based on the same conduct. ( In re S.R.H. (1983), 96 Ill. 2d 138, 144-45, 70 Ill. Dec. 255, 449 N.E.2d 129.) The State contends that the petition is sufficient, when measured by this standard, to charge the lesser included offense of unlawful use of weapons.

The issue here is not whether the petition was sufficient to charge the offense named. Rather, the precise question is whether respondent was found properly to have committed a lesser included offense of the offense charged. This court rejected the State's argument in In re J.A.J. (1993), 243 Ill. App. 3d 808, 184 Ill. Dec. 41, 612 N.E.2d 917. In that case, we noted that, even under the relaxed standard of S.R.H., a juvenile petition must inform the accused of the precise offense charged. ( J.A.J., 243 Ill. App. 3d at 810.) We held that the petition did not specifically advise respondent of an additional element of the offense he was found to have committed. Therefore, it could ...


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