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12/19/96 T.G. v. T.G.

December 19, 1996


Appeal from the Circuit Court of Cook County. No. 92--JD--12459. Honorable Stuart Lubin, Judge Presiding.

Rehearing Denied December 16. 1996. Released for Publication January 29, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Greiman and Gallagher, JJ., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Respondent minor, T.G., was adjudged a delinquent based on attempted first-degree murder (720 ILCS 5/8--4, 9--1 (West 1992), aggravated battery causing great bodily injury (720 ILCS 5/12--4 (West 1992)), and aggravated battery using a deadly weapon (720 ILCS 5/12--4(b)(1)(West 1992)), but was found not guilty of armed violence (720 ILCS 5/33A--2 (West 1992)). In the dispositional order, he was sentenced to five years' probation, based on the attempted first-degree murder, with the condition that he successfully complete an outreach program at the High Plains Youth Center in Brush, Colorado.

On appeal, T.G. asserts that (1) there was insufficient evidence of a specific intent to kill; (2) there was no evidence of great bodily harm; and (3) the trial court's directed verdict on the armed violence charge collaterally estopped any conviction for aggravated battery based on using a deadly weapon. We affirm in part, reverse in part, and remand for sentencing.

On September 3, 1993, at 1 p.m., Jackie Climek had a party at her home at 6343 North Broadway in Chicago. Because Climek testified that she had drunk eight ounces of straight Scotch Whiskey within 30 minutes, the trial court considered her testimony in the light that she was drunk at the time of the incident.

Climek testified that Kevin Kane and T.G. arrived shortly after the party started. She had known both Kane and T.G. for about a year. She told T.G. that she did not want him in her house, but he ignored her, walking past her into the bedroom where the party was in progress. Climek repeatedly told T.G. to leave, but he refused. After they argued in the kitchen, Climek telephoned her friend, Justin Long, to come and get T.G. out of her house because T.G. had hit her in the face.

Even though Climek told T.G. that Long was coming, he stayed. Ten minutes later, while Climek was waiting outside, Long arrived with Brian McCairall, whom Climek did not know. Long and McCairall went through the front door, which leads to a stairway of seven steps and another door at the top of the stairs. T.G. was sitting at the top of the stairway and Kane was nearby. Long walked up the stairs toward T.G. and asked him to leave. Climek did not see the fight, but did see Kane's hands on McCairall. McCairall tumbled down the stairs, closing the front door as he fell and locking Climek out of her house.

When T.G. opened the front door a short time later, he was holding a bloody steak knife from Climek's kitchen. T.G. giggled and said something Climek did not understand. Inside, Climek saw that McCairall had been stabbed in the upper chest and in his side and that Long had a small cut on his leg. Climek did not see either McCairall or Long with a weapon.

Michelle Henriquez, a friend of Climek's, testified that she was at Climek's house during the party. The trial court found her to be very believable. She witnessed an argument between T.G. and Climek, after which Climek announced that she was going to call Long. Following the call, Henriquez saw T.G. with a little kitchen knife in the bedroom. He stuffed it up his right sleeve five minutes before the fight started. After Long and McCairall arrived, Henriquez saw two punches between Long and T.G before she left to use the telephone.

Brian McCairall testified that he and Long went to Climek's house after she had paged Long saying that she was being beaten. When they arrived, Climek met them outside. McCairall followed Long into the house, where he saw T.G. and Kane on the stairway. He had known Kane for five years and T.G. for a few months. T.G. began telling his side of the story as Long walked up the stairs past T.G., making eye contact with him. A fight broke out between Long and T.G., but McCairall did not know who threw the first punch.

As soon as the fight started, McCairall grabbed T.G. and put him against the wall. Kane jumped on McCairall's back, grabbing him around the neck from behind, as T.G. stood in front of him. McCairall lost his balance and fell backwards as he felt a poke in his chest. T.G. then swung a knife at Long and McCairall, who was stabbed two more times. At first, McCairall did not realize he had been stabbed. He went to the bathroom because he felt a little pain, as if he had been poked by a pen or pencil. There, he saw that his shirt was cut so he took it off, revealing three bloody wounds.

Justin Long, whose testimony the trial court did not find credible, testified that he knew Kane and T.G. When he and McCairall arrived at Climek's house, he went up the stairs and asked T.G. to leave. T.G. refused and took a swing at him, so he blocked the punches and fought back. After McCairall pulled T.G. off Long, Kane grabbed McCairall and put him in a head lock as T.G. lunged at McCairall with his right arm. When McCairall freed himself and ran into the house, Long noticed that T.G. had a knife. Long kicked at T.G. in an effort to keep him away, but T.G. stabbed Long in the ankle, causing a small cut, before he ran away.

The trial court granted T.G.'s motion for a directed finding on all the charges relating to Long and on the armed violence charge relating to McCairall based on there being no evidence that the knife's blade was at least three inches long. However, the court denied the motion for a directed finding on the attempted first-degree murder charge relating to McCairall because it found that T.G.'s actions in arming himself with a knife when he knew there would be a ...

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