People v. N.H. (In re N.H.)

• Decision Date: 18 March 2016
• Docket Number: No. 1–15–2504.,1–15–2504.
• Citation: 402 Ill.Dec. 475,52 N.E.3d 396
• Parties: In re N.H., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. N.H., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

52 N.E.3d 396

402 Ill.Dec. 475

In re N.H., a Minor (The People of the State of Illinois, Petitioner–Appellee

v.N.H., Respondent–Appellant).

No. 1–15–2504.

Appellate Court of Illinois, First District, Fifth Division.

March 18, 2016.

Michael J. Pelletier, Patricia Mysza, and Brett C. Zeeb, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Christine Cook, and Koula A. Fournier, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice GORDON

delivered the judgment of the court, with opinion.

¶ 1 Respondent N.H.¹ appeals an adjudication of delinquency and dispositional order of probation. The State charged him with robbery, aggravated battery, battery, theft from person and theft; the trial court found him guilty after an adjudication hearing of all charges, and sentenced him to five years of probation.

¶ 2 On this direct appeal, respondent claims: (1) that the State failed to prove him guilty beyond a reasonable doubt of aggravated battery, battery or robbery, and, thus, this court should reverse his aggravated battery and battery convictions and reduce his robbery conviction to theft; (2) that subjecting juveniles who have been adjudicated delinquent of a forcible felony to a mandatory minimum sentence of five years of probation violates the equal protection clause, where juveniles who are adjudicated delinquent of other felonies are not subject to the same mandatory sentence; (3) that the trial court abused its discretion by ordering respondent to maintain a “C average” in school as a condition of his probation; and (4) that the trial court's order should be corrected to reflect adjudications for robbery and aggravated battery, as the adjudications for the lesser offenses of theft and battery violate the one act, one crime rule.

¶ 3 With respect to respondent's fourth claim, the State observes that the trial court merged the theft and theft from person counts with the robbery conviction and also merged the battery count with the aggravated battery conviction, leaving only the offenses of robbery and aggravated battery existing. After merging the counts, the trial court stated: “So the only convictions will be—now, will be the robbery and * * * the aggravated battery.” However, adjudications of delinquency were entered on all counts in the trial court's written order.² People v. Maxey, 2015 IL App (1st) 140036, ¶ 46, 401 Ill.Dec. 119, 49 N.E.3d 507

(when the written order and the oral pronouncement of the trial court conflict, the oral pronouncement becomes the judgment of the court, and the mittimus must be corrected to reflect it); People v. Jones, 376 Ill.App.3d 372, 395, 315 Ill.Dec. 15, 876 N.E.2d 15 (2007) (“When the oral pronouncement of the court and the written order are in conflict, the oral pronouncement controls.”). The State joins respondent in asking us to vacate respondent's adjudications for theft and battery and to correct the order. Thus, we correct the trial court's written order to reflect adjudications solely for robbery and aggravated battery. People v. J.F., 2014 IL App (1st) 123579, ¶ 18, 381 Ill.Dec. 313, 10 N.E.3d 398 (appellate court ordered a juvenile's adjudication order corrected); Maxey, 2015 IL App (1st) 140036, ¶ 46, 401 Ill.Dec. 119, 49 N.E.3d 507 (appellate court ordered the mittimus corrected); People v. Lattimore, 2011 IL App (1st) 093238, ¶ 117, 353 Ill.Dec. 433, 955 N.E.2d 1244 (same); People v. Jones, 397 Ill.App.3d 651, 656, 336 Ill.Dec. 912, 921 N.E.2d 768 (2009) (same).

¶ 4 However, we do not find respondent's other claims persuasive for the reasons explained below. We affirm and order the adjudication order corrected.

¶ 5 BACKGROUND

¶ 6 I. Petition for Wardship

¶ 7 In the States' petition for adjudication of wardship. the State charged respondent with aggravated battery and robbery, among other charges.

¶ 8 With respect to the aggravated battery charge, the State alleged that, while the victim was “on a public way, the above-named minor knowingly made physical contact of an insulting or provoking nature to [the victim], in that he pushed her in the upper body.”

¶ 9 With respect to the robbery charge, the State alleged that “the above-named minor knowingly took property, to wit: wallet³ and United States currency, from the person or presence of [the victim], by the use of force or threatening the imminent use of force.”

¶ 10 II. Evidence at the Adjudication Hearing

¶ 11 At the adjudication hearing, the State's case in chief included the testimony of the victim and two police officers. Respondent offered an alibi defense, which he supported with his own testimony and that of his stepfather. In rebuttal, the State recalled police officer Povsner. We summarize this evidence below.

¶ 12 A. The Victim

¶ 13 Regina Warren, an 18–year–old student, testified that, on July 9, 2014, at 8 p.m., she and a friend were walking near 54th Street and Ashland Avenue in Chicago on the way to her sister's birthday party. Respondent was walking behind her with three other people and attempting to make conversation with her. Warren and her friend did not respond, but Warren turned around and observed respondent who was a few feet behind her. Respondent followed Warren and her friend for about a block and a half, when he then stated: “I know you hear me.” A few seconds later, respondent pushed Warren in her upper back from behind which caused her to stumble. Warren then turned around for a second time and observed respondent as he grabbed her wallet out of her hand and ran. Respondent's friends also fled, and one of them was on an electric scooter.

¶ 14 Warren testified that she asked a person on a nearby porch to call the police, who arrived in a few minutes. She told the police what had occurred, and a police officer drove her around in a police vehicle looking for the offender. Warren described the offender to them as a 15–year–old African–American male in jeans. After driving around for a few minutes, Warren observed respondent on a scooter and told the officers that he was the “main one that did it.” When asked what her wallet contained, Warren testified: “I had ten dollars, a seven-day and a couple of other things.”⁴ She explained: “A seven-day is a bus pass that I use to get around.” Warren made a positive identification of respondent in court.

¶ 15 B. Chicago Police Officer's Testimony

¶ 16 Chicago police officer Povsner⁵ testified that, on July 9, 2014, he and his partner, Officer Tracey Knightly, were flagged down near 53rd Street and Racine Avenue by a friend of the victim. Warren then told him that someone had pushed her from behind and stolen her wallet. Warren described the offender as a young, short black male teenager, wearing a multi-colored shirt. After touring the area, Officer Povsner observed a young black male on a scooter who matched this description a block and a half from where Povsner was originally flagged down, so Povsner stopped him and started talking to him. Povsner testified:

“What happened next was a squad car pulled up, two officers and the victim in the back seat of the squad car, the victim that we had just talked to, and while we were talking to him, they told us that's—that's him; that's the offender.”

¶ 17 Chicago police officer Weber⁶ testified that, on July 9, 2014, he responded to a call concerning a theft or robbery near the 5400 block of Racine Avenue. The victim provided a description of a male on a scooter, but Weber did not recall the description. Weber placed the victim in the back of his police vehicle and started touring the area looking for the offender. He stopped when he observed that other officers had detained a suspect, whom the victim identified.

¶ 18 C. The Testimony of Respondent's Stepfather

¶ 19 After the State rested, respondent's motion for a direct finding was denied. Respondent's stepfather⁷ testified on his behalf. The stepfather testified that, on July 9, 2014, at 8 p.m., he was outside his house with respondent and two other children and the stepfather was placing gas in respondent's motorized scooter. He observed two black males and two black females walking together down the street toward 54th Street and passing his house. One of the females was the victim, Regina Warren. One of the males grabbed Warren's wallet and ran through an alley. The stepfather did not observe the male push Warren. He described the offender as an African American 5 feet 9 inches tall, weighing 130 pounds, wearing a white shirt and blue pants. The stepfather's neighbor called the police. When the police arrived, the stepfather informed the police officers what he had observed and gave them a description of the offender. The respondent began riding his scooter and remained within the sight of the stepfather. The officers detained respondent and brought him back to his stepfather.

¶ 20 The stepfather testified that he observed the offender later and took a photograph of the offender on his cell phone two weeks after the incident. The stepfather then went to the police station but an officer “told [him] to leave the investigation alone,” so he deleted the photograph from the cell phone a few days later.

¶ 21 D. Testimony of Respondent

¶ 22 Respondent testified that he was 13 years old on July 9, 2014. At 8 p.m., he was outside his house with his stepfather working on his scooter, when he observed a group of two males and two females walking past them. One of the males grabbed a purse from one of the females and ran into the alley. The victim ran toward the house of a neighbor who called the police. Respondent did not recognize any members of the group. After the incident, respondent was riding on his scooter when police officers stopped and searched him. After another police vehicle arrived, he was handcuffed and arrested. Respondent denied robbing the victim and testified that he told Officer Povsner who the real offender was but that the officer did not listen.

¶ 23 In rebuttal,...