Filed 4/21/08 NO. 4-07-0182

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: T.W., a Minor,

THE PEOPLE OF THE STATE OF ILLINOIS,

 Petitioner-Appellee,

 v.

T.W.,

 Respondent-Appellant.

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 Appeal from

 Circuit Court of 

 Vermilion County

 No. 06JD183

 

 Honorable

 Craig H. DeArmond,

 Judge Presiding.

______________________________________________________________ 

JUSTICE TURNER delivered the opinion of the court:

In October 2006, the State filed an amended petition

for adjudication of wardship, alleging respondent, T.W., was a

delinquent minor following the commission of the offenses of

battery and disorderly conduct. In January 2007, the trial court

adjudicated respondent delinquent based on a finding of guilty on

all counts. In February 2007, the court found it in respondent's

best interest that she be made a ward of the court and sentenced

her to 24 months' probation.

On appeal, respondent argues (1) the trial court erred

in finding probable cause of delinquency at the detention hearing, (2) her trial counsel was ineffective, (3) the State failed

to prove her guilty of battery, and (4) her disorderly conduct

adjudication should be reversed. We affirm in part and vacate in

part.

I. BACKGROUND
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In October 2006, the State filed an amended petition

for adjudication of wardship, alleging respondent was a delinquent minor. The petition charged respondent with two counts of

battery (720 ILCS 5/12-3(a)(1), (a)(2) (West 2006)), alleging

that on September 12, 2006, she knowingly and without legal

justification caused bodily harm to and made physical contact of

an insulting or provoking nature with Alexis S. The petition

also charged respondent with disorderly conduct (720 ILCS 5/26-

1(a)(1) (West 2006)), alleging that on October 20, 2006, she

knowingly engaged in certain conduct, fighting on a school bus,

in such an unreasonable manner as to alarm or disturb Mark

Goodwin and to provoke a breach of the peace.

In November 2006, the trial court conducted a detention

hearing. The court called respondent and her mother, Tanya W.,

and questioned them under oath. Respondent testified she was 13

years old and a student at North Ridge Middle School. The court

confirmed respondent and her mother received the amended petition

and appointed the public defender. The court read the charges to

respondent, explained the possible sentences, and admonished her

as to her right to a trial.

The trial court then told Tanya W. that it had the

option of putting respondent in detention if she testified her

daughter was beyond her control. Tanya indicated she would like

the court to address the issue of detention. The court then told
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the prosecutor to call respondent's mother as a witness. Tanya

testified respondent had been kicked out of school for 10 days. 

She stated respondent does not follow rules well at home and has

run away. Tanya stated she tried to control her daughter but it

was hard considering she was a single parent and respondent did

not listen to her.

The trial court found probable cause to believe respondent was delinquent. The court also found it was a matter of

immediate and urgent necessity that respondent be detained

pending the next court date. The court found no custodial

alternative.

In January 2007, the trial court conducted the adjudicatory hearing. Alexis S. stated she was five years old. She

testified to a situation a few months prior to the hearing where

four girls came up to her and her friend "down by [her] old bus

thingy [sic]." One girl came up to her, smacked her on the

cheek, and pulled her hair. Later, Alexis's father arrived, as

did the police. She pointed to one of the girls, but she did not

think she would remember what the girl looked like if she saw her

again. 

Jeff S. testified he returned home from work on September 12, 2006, and stated his "wife was gone and said somebody had

smacked and pulled Alexis's hair." He later found four girls and

asked which one smacked his daughter and pulled her hair. The
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girls pointed at a girl down the road. Jeff S. went down and

talked with the girl's mother. He explained to her that the four

girls identified her daughter as the one who hit Alexis in the

face and pulled her hair. The mother stated the four girls came

to her house and started problems with her daughter. During this

time period, a police officer arrived on the scene.

With an officer present, Jeff S. asked Alexis which one

of the girls pulled her hair and smacked her. He held Alexis in

his arms and pointed at each girl and asked her if that was the

girl that hit her. Alexis responded in the negative as to the

first three girls and positively to the last girl. Jeff S.

described the girl as a young, heavyset African-American female

wearing a blue shirt and blue jeans.

Danville police officer Eric Olsen testified he was

approached by Jeff S. on September 12, 2006, with the report that

one of four girls in the area had struck his daughter. Olsen

stated Jeff S. pointed at each girl and asked Alexis if one of

the girls hit her. Alexis said no to the first three girls and

yes to respondent. Olsen made an in-court identification of

respondent.

Officer Olsen then questioned respondent. She told him

she was walking home with three friends when they observed Alexis

outside her residence. The girls asked Alexis for a glass of

water and she said no. Respondent stated her friend Tambriesha
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then struck Alexis in the face. Two of the other girls' mothers

arrived and told him Shateri had been the one who pushed Alexis.

Mark Goodwin testified he was the principal at North

Ridge Middle School. On October 20, 2006, Goodwin stated two

students were fighting on a school bus. He and another staff

member entered the bus and separated the two female students, who

were hitting each other and pulling hair. Goodwin identified one

of the girls as respondent. Because the bus was full, Goodwin

was concerned with the risk of other students being injured.

On cross-examination, Goodwin stated the other female

involved in the fight was Porsha E. He did not recall if she was

involved in other fights prior to this incident. He also stated

Porsha got into an altercation with respondent's sister after she

was taken off the bus.

Respondent testified Porsha threatened to "beat [her]

butt" when she got on the school bus. Porsha told others that

respondent called the police on her at school, which respondent

denied. Respondent testified Porsha "jumped up in [her] face"

and "swung off" her. Respondent then hit her back, and the girls

began fighting. When asked to leave the bus, respondent initially refused because she feared for her sister's safety.

Following closing arguments, the trial court found

respondent guilty on all three counts and adjudicated her delinquent. As to the battery charges, the court found it clear the
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victim identified one of the four girls and respondent was the

girl identified per the testimony of Officer Olsen. Jeff S.'s

testimony that he pointed to each girl and asked Alexis if each

one hit her offered "further credibility to [Alexis's] ability to

identify." On the disorderly-conduct count, the court found

respondent engaged in a fight in an unreasonable manner so as to

alarm and disturb Goodwin and provoke a breach of the peace.

In February 2007, the trial court found it in respondent's best interest that she be made a ward of the court. The

court sentenced her to 24 months' probation with the first 30

days to be served in the juvenile detention center. This appeal

followed.

II. ANALYSIS

A. Detention Hearing

Respondent argues the trial court erred in finding (1)

probable cause of delinquency without hearing evidence concerning

the allegations in the State's amended petition and (2) an

immediate and urgent necessity that respondent be detained

despite no evidence of probable cause. The State argues these

issues are moot since respondent is no longer detained and has

been found delinquent of the charges. We agree with the State.

"It is a basic tenet of justiciability

that reviewing courts will not decide moot or

abstract questions or render advisory opin-
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ions. [Citation.] An appeal is considered

moot where it presents no actual controversy

or where the issues involved in the trial

court no longer exist because intervening

events have rendered it impossible for the

reviewing court to grant effectual relief to

the complaining party." In re J.T., 221 Ill.

2d 338, 349-50, 851 N.E.2d 1, 7-8 (2006).

In the case sub judice, respondent concedes she is no

longer detained and has been found delinquent of the charges. 

Thus, any decision by this court on this issue would be advisory

in nature as it would be impossible to grant any effectual relief

to her. Accordingly, we find this issue moot.

Respondent, however, contends this court should address

the issue of finding probable cause at the detention hearing,

claiming it is an important question of public interest that will

routinely evade review. 

"Application of the public[-]interest exception requires (1) the existence of a question

of public importance; (2) the desirability of

an authoritative determination for the purpose of guiding public officers in the performance of their duties; and (3) the likelihood that the question will recur." J.T.,
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221 Ill. 2d at 350, 851 N.E.2d at 8.

Another exception to the mootness doctrine involves factual

scenarios of short duration that are capable of repetition yet

evade review. In re Marie M., 374 Ill. App. 3d 913, 915, 873

N.E.2d 393, 395 (2007). "For this exception to apply, the

complaining party must demonstrate (1) the challenged action is

too short in duration to be fully litigated prior to becoming

moot, and (2) a reasonable expectation exists the complaining

party will be subjected to the same action again." Marie M., 374

Ill. App. 3d at 915, 873 N.E.2d at 395.

Here, neither exception applies to this case. The

exception for cases of short duration evading review does not

apply because no expectation arises that respondent will be

subject to the same action again. With respect to the publicinterest exception, we agree the pretrial detention of juveniles

and the evidence considered by trial courts in making a detention

determination are questions of public importance. However, we

find no need for an authoritative determination for the purpose

of guiding public officers in the performance of their duties. 

The protections afforded juveniles in regard to detention hearings, e.g., a probable-cause finding on delinquency and the

finding it is a matter of "immediate and urgent necessity" for

the protection of the minor or others that the minor be detained,

are fully set out in section 5-501 of the Juvenile Court Act of
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1987 (705 ILCS 405/5-501 (West 2006)) and addressed in the

relevant case law (see In re C.J., 328 Ill. App. 3d 103, 112-13,

764 N.E.2d 1153, 1160 (2002); In re S.I., 234 Ill. App. 3d 707,

712, 600 N.E.2d 889, 891-92 (1992)). Accordingly, we decline to

employ the public-interest exception to the mootness doctrine

here.

B. Assistance of Counsel

Respondent next argues her trial counsel was ineffective for failing to object to the trial court's questioning of

her before the finding of probable cause and for failing to

object to the finding of probable cause. However, our analysis

on the detention hearing renders moot respondent's second issue

regarding the assistance of counsel at that hearing.

C. Sufficiency of the Evidence

Respondent argues the State failed to prove her guilty

of battery beyond a reasonable doubt. We disagree.

When a delinquency petition is filed, the State must

prove the elements of the substantive offense charged beyond a

reasonable doubt. In re Ryan B., 212 Ill. 2d 226, 231, 817

N.E.2d 495, 498 (2004). A reviewing court will not overturn a

trial court's delinquency finding "unless, after viewing the

evidence in the light most favorable to the State, no rational

fact finder could have found the offenses proved beyond a reasonable doubt." In re Gino W., 354 Ill. App. 3d 775, 777, 822
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N.E.2d 592, 594 (2005). The trier of fact has the responsibility

to determine the credibility of witnesses, to resolve conflicts

in the evidence, and to draw reasonable inferences from that

evidence. Gino W., 354 Ill. App. 3d at 777, 822 N.E.2d at 594.

"A person commits battery if he intentionally or

knowingly without legal justification and by any means, (1)

causes bodily harm to an individual or (2) makes physical contact

of an insulting or provoking nature with an individual." 720

ILCS 5/12-3(a) (West 2006).

"The State bears the burden of proving beyond a reasonable doubt the identity of the person who committed the charged

offense." People v. Lewis, 165 Ill. 2d 305, 356, 651 N.E.2d 72,

96 (1995). Although an identification that is vague or doubtful

is insufficient to support a conviction, "a single witness'[s]

identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances

permitting a positive identification." Lewis, 165 Ill. 2d at

356, 651 N.E.2d at 96.

"In evaluating identification testimony,

Illinois courts consider the factors set

forth in Neil v. Biggers, 409 U.S. 188, 199-

200, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375,

382 (1972), which are (1) the witness's opportunity to view the criminal at the time of
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the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior

description of the criminal; (4) the witness's level of certainty at the identification confrontation; and (5) the length of

time between the crime and the identification

confrontation." People v. Standley, 364 Ill.

App. 3d 1008, 1014, 848 N.E.2d 195, 200

(2006).

Here, Alexis testified a girl came up to her, smacked

her on the cheek, and pulled her hair. The evidence indicated

Alexis had ample opportunity to view the offender at the time of

the crime as it was during the daylight and shortly after school

had been let out. Being smacked in the face and having one's

hair pulled surely grabs one's attention. When Jeff S. asked his

daughter which of the four girls hit her, Alexis identified

respondent. Nothing in the evidence indicated any hesitation or

prompting in her identification. Finally, little time passed

between the incident and Alexis's identification of respondent.

Jeff S. testified he asked Alexis which of the four

girls hit her. As he pointed to each one, Alexis responded in

the negative until he asked about the last girl, an AfricanAmerican female. Officer Olsen testified he witnessed the

questioning by Jeff S. of Alexis and her identification of
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respondent. 

At trial, Alexis was unable to make an in-court identification. Section 115-12 of the Code of Criminal Procedure of

1963 provides that testimony regarding a declarant's prior outof-court statement of identification is not rendered inadmissible

by the hearsay rule if "(a) the declarant testifies at the trial

or hearing, and (b) the declarant is subject to cross-examination

concerning the statement, and (c) the statement is one of identification of a person made after perceiving him." 725 ILCS 5/115-

12 (West 2006).

Here, Alexis testified at trial and was subject to

cross-examination. Further, the statement was one of identification made by the victim after perceiving respondent on the day

of the incident. Thus, Officer Olsen's testimony as to Alexis's

prior identification was admissible as substantive evidence. 

Based on the evidence presented, a rational trier of fact could

have found the State proved the offense of battery beyond a

reasonable doubt.

D. Disorderly Conduct

Respondent argues her disorderly-conduct adjudication

should be reversed because (1) contrary to the trial court's

ruling, self-defense is an affirmative defense to disorderly

conduct, and (2) the evidence showed she acted in self-defense. 

We agree.
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"A charge of disorderly conduct requires

a showing that the accused knowingly acted in

such an unreasonable manner as to alarm or

disturb another and to provoke a breach of

the peace. 720 ILCS 5/26-1 (West 1994). The

offense embraces a wide variety of conduct

serving to destroy or menace the public order

and tranquility. The offense may include not

only violent acts, but acts and words likely

to produce violence in others." In re B.C.,

176 Ill. 2d 536, 551-52, 680 N.E.2d 1355,

1363 (1997).

Under section 7-1(a) of the Criminal Code of 1961

(Criminal Code) (720 ILCS 5/7-1(a) (West 2006)), "[a] person is

justified in the use of force against another when and to the

extent that he reasonably believes that such conduct is necessary

to defend himself or another against such other's imminent use of

unlawful force." 

In finding respondent guilty on the disorderly-conduct

count, the trial court stated, in part, as follows:

"The [d]isorderly [c]onduct, interestingly, that turns out to be charged as a

disorderly conduct and not a battery so I'm

not sure that self-defense is even a defense,
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an affirmative defense to disorderly conduct. 

It would be an affirmative defense to a battery. The issue here, though, isn't whether

it was a battery, it was whether by engaging

in a fight on a school bus she engaged in

conduct in such an unreasonable manner as to

alarm and disturb Mr. Goodwin and provoke a

breach of the peace. That's clear from the

testimony the fact that the bus driver had to

stop the bus before they even get out of the

parking lot, that it was necessary for school

staff to enter the bus. It was necessary for

them to break the fight up and to remove the

minor from the scene in order to bring order

back to the bus. That evidence is more than

enough to establish an offense of disorderly

conduct. Maybe not a battery, might have

been a good--good defense to a battery, but

this isn't a battery, it's a disorderly conduct by engaging in a fight in an unreasonable manner as to alarm and disturb Mr.

Goodwin and provoke a breach of the peace."

Respondent claims no authority supports the trial

court's conclusion that self-defense was not available as an
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affirmative defense to the charge of disorderly conduct. We have

found no Illinois authority allowing or denying the affirmative

defense in the situation presented here. Thus, this matter

appears to be one of first impression in Illinois.

"[T]he law of self-defense applies in both criminal and

civil cases." First Midwest Bank of Waukegan v. Denson, 205 Ill.

App. 3d 124, 129, 562 N.E.2d 1256, 1259 (1990). The affirmative

defense of self-defense has been raised in criminal cases involving murder (People v. Lee, 213 Ill. 2d 218, 224, 821 N.E.2d 307,

311 (2004)), domestic battery (People v. Grayson, 321 Ill. App.

3d 397, 402, 747 N.E.2d 460, 464-65 (2001)), battery and resisting arrest (People v. Sims, 374 Ill. App. 3d 427, 431-32, 871

N.E.2d 153, 157 (2007)), and aggravated battery in a place of

public accommodation (People v. Dillard, 319 Ill. App. 3d 102,

105-06, 745 N.E.2d 185, 188 (2001)), just to name a few.

Courts in other jurisdictions have allowed a defendant

charged with disorderly conduct to assert self-defense. See

S.D.G. v. State, 919 So. 2d 704, 705 (Fla. Dist. App. 2006) (in

this disorderly-conduct case, "[w]here a defendant did not

initiate the fight, and was acting to protect herself from her

attacker, the defense of self-defense applies"); State v. Soukup,

656 N.W.2d 424, 429 (Minn. App. 2003) ("self-defense is applicable to a charge of disorderly conduct where the behavior forming

the basis of the offense presents the threat of bodily harm");
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D.M.L. v. State, 773 So. 2d 1216, 1217 (Fla. Dist. App. 2000)

("Self-defense may be used as a defense to a charge of disorderly

conduct provided that the person charged did not provoke the

fight"); State v. Schumaier, 603 N.W.2d 882, 885 (N.D. 1999)

("self-defense may be asserted in appropriate cases by defendants

charged with disorderly conduct"). Courts have also allowed

other justification defenses to a disorderly-conduct charge. See

State v. Hauenstein, 121 Ohio App. 3d 511, 517, 700 N.E.2d 378,

379-81 (1997) (defense of parental discipline was proper for

charge of disorderly conduct); City of Chicago v. Mayer, 56 Ill.

2d 366, 370, 308 N.E.2d 601, 603-04 (1974) (the defendant was

entitled to an instruction on the defense of necessity as to

charge of disorderly conduct).

In this case, nothing in section 7-1 of the Criminal

Code restricts the use of force in self-defense depending on the

nature of the charge. Moreover, the alleged action taken by

Porsha toward respondent constituted an offense of a physical

nature and carried with it the potential to cause bodily harm. 

Considering Porsha's alleged conduct could constitute a battery,

respondent was entitled to defend herself. Thus, we find the

affirmative defense of self-defense applies in this situation to

the charge of disorderly conduct.

The State argues even if the trial court erred in

stating self-defense is not a defense to disorderly conduct, any
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error was harmless where the evidence presented did not rise to

the level of self-defense.

"Self-defense is an affirmative defense, and

once a defendant raises it, the State has the

burden of proving beyond a reasonable doubt

that the defendant did not act in self-defense, in addition to proving the elements of

the charged offense. [Citation.] The elements of self-defense are: (1) that unlawful

force was threatened against a person; (2)

that the person threatened was not the aggressor; (3) that the danger of harm was

imminent; (4) that the use of force was necessary; (5) that the person threatened actually and subjectively believed a danger existed that required the use of the force

applied; and (6) the beliefs of the person

threatened were objectively reasonable." 

Lee, 213 Ill. 2d at 224-25, 821 N.E.2d at

311.

If the State negates any one of the six elements, the defendant's

self-defense claim fails. Lee, 213 Ill. 2d at 225, 821 N.E.2d at

311.

Here, respondent testified Porsha threatened to "beat
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[her] butt" when she got on the school bus. After Porsha told

others respondent had called the police on her, which respondent

denied, Porsha "jumped up in [her] face" and "swung off" her. 

The evidence indicated Porsha was the aggressor, the danger of

harm to respondent was imminent, and the use of force was necessary for respondent to defend herself. Further, respondent

stated she was trying to keep Porsha from fighting with her. 

Given Porsha's threats and taking a swing at respondent in the

crowded school bus, respondent's belief that she was in imminent

danger of harm was objectively reasonable.

The State argues Porsha was not the aggressor and

respondent struck the first blow. However, we find the evidence

shows respondent acted in self-defense. Respondent's testimony

that Porsha "swung off" her amounts to an aggressive action to

which respondent could rightfully respond in defense of herself.

The State argues the only evidence of self-defense was

defendant's self-serving testimony. We note the State presented

no evidence that respondent did not act in self-defense. Further, the State declined to offer any evidence in rebuttal. The

evidence also indicated Porsha continued her aggressive behavior

after she was removed from the bus. Goodwin testified Porsha got

into an altercation with respondent's sister after respondent and

Porsha had been separated. This evidence lends credence to

respondent's testimony that Porsha was the initial aggressor. 
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The State's claim that Porsha had never caused respondent trouble

before was insufficient to negate the elements of self-defense.

The State also argues the girls fought willingly upon

equal terms for three to four minutes, hitting each other and

pulling hair. The affirmative defense of self-defense is unavailable "where both parties fought willingly upon equal terms." 

People v. White, 293 Ill. App. 3d 335, 338, 687 N.E.2d 1179, 1182

(1997). However, "a person who is not the initial aggressor has

no duty to retreat." People v. White, 265 Ill. App. 3d 642, 651,

638 N.E.2d 314, 320 (1994). Here, the evidence was insufficient

to show respondent and Porsha engaged in mutual and willing

combat. Instead, the evidence indicated respondent attempted to

defend herself in the crowded school bus.

Normally, this court would be reluctant to overturn a

trial court's decision following a trial, considering the trier

of fact is in the best position to view the demeanor of the

witnesses and to determine their credibility. However, in this

case and in finding respondent guilty of disorderly conduct, the

trial court noted respondent's testimony "might have been a good

*** defense to a battery." Thus, it appears the court would have

found respondent's self-defense claim a valid defense had she

been charged with battery. Because we have found self-defense

applies to charges of disorderly conduct and the evidence indicated respondent acted in self-defense, the court's finding of
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guilt on the disorderly conduct charge was against the manifest

weight of the evidence. Thus, respondent's adjudications of

delinquency and wardship on the disorderly-conduct count are

vacated.

III. CONCLUSION

For the reasons stated, we affirm in part and vacate in

part the trial court's judgment.

Affirmed in part and vacated in part.

McCULLOUGH and MYERSCOUGH, JJ., concur.