FOURTH DIVISION

									NOVEMBER 7, 2002

1-01-1025

In re K.J., a Minor					)	Appeal from the

(THE PEOPLE OF THE STATE OF ILLINOIS,	)	Circuit Court of

								)	Cook County.

		Petitioner-Appellant,		)

								)

	v.							)	

								)	

K.J., a Mminor,						)	Honorable

								)	Andrew M. Berman,

		Respondent-Appellee).		)	Judge Presiding.	

	JUSTICE HARTMAN delivered the opinion of the court:

	The State appeals the circuit court's order denying its motion

to permit respondent, K.J.'s, transfer to the jurisdiction of the

criminal division of the court for prosecution as an adult.  The

State contends that the court erred in failing to find that there

was probable cause to believe that respondent was accountable for

the charged offenses.

	The State filed a petition for adjudication of wardship

alleging that the 16-year-old minor-respondent was delinquent in

that he had committed the offenses of aggravated battery/great

bodily harm, aggravated battery with a firearm and aggravated

discharge of a firearm on September 8, 2000.  The State then filed

a presumptive transfer motion to permit respondent to be prosecuted

under the criminal laws of this State.  705 ILCS 405/5-805 (West

2000).  

	At the transfer hearing, Chicago Police Detective Scott

Lorotkvich testified that about 11 p.m. on September 8, 2000, he 

was assigned to investigate a report of an aggravated battery at

8700 South Yates.  There, he spoke with Antoine Sneed who told him that he, Johnny Patterson, DeJohn Pierce, Jerry Butler and "Weasle" were walking to the store at 8700 South Yates when they were

approached by five individuals who identified themselves as

Blackstone gang members.  One, later identified as respondent, was

approximately 5'2" tall, wearing braids and beads in his hair and

a red shirt.  He came up to Sneed and said: "Chief crazy around

here, all is well."  Respondent then asked him why he was wearing

a blue T-shirt in "Moe" territory and threatened to kick his "ass"

when he came out of the store.  Detective Lorotkvitch explained

that these slogans were identified with the Blackstone street gang

and that "Moe" was another word for a member of that gang.  While

Sneed and Weasle were in the store, they heard three gunshots

outside, and ran home when the shooting stopped.

	About 1 a.m. the following morning, Detective Lorotkvich

interviewed DeJohn Pierce at the station.  Pierce told him that he,

Patterson and Butler were walking behind Sneed and Weasle when

several individuals confronted them and shouted gang slogans at

Sneed.  When Sneed and Weasle went into the store, respondent

approached Pierce's group.  Standing within one or two feet of

Patterson, respondent told Patterson that he would air or shoot the

place out, and that he would not even need his "strap (handgun) to

box your ass out."  

	While making these threats, respondent made continuous motions

towards his pocket and Pierce believed he observed the outline of a handgun there.  Pierce also related that the persons with

respondent began to surround him and his two friends making similar

motions towards their waistbands as if they had weapons. 

Respondent then took off his hat and made a quick motion towards

Patterson as if to throw a punch.  Patterson, however, reacted by

punching respondent and knocking him to the ground.  At that point,

another individual pulled out a revolver and fired two shots at

Patterson.  Pierce helped Patterson run from the scene to 87th

Street and Crandon where the police and paramedics were called.  

	Detective Lorotkvitch spoke with the doctor who treated

Patterson at Christ Hospital and learned that Patterson had

sustained multiple gunshot wounds, two to his left side above the

waist and another from a bullet that traversed his front stomach

area and lodged in his groin.  The doctor also reported that

Patterson had sustained a self-defense wound to his right thumb. 

	Detective Lorotkvich then interviewed Cory Robinson, who  told

him that he was with respondent and "Cameo" at 8700 South Yates

when the incident occurred.  Robinson stated that respondent had

gotten into a confrontation with a person much larger than himself

by making gang threats and threatening to shoot up the place. 

Robinson also verified that Patterson struck respondent and knocked

him to the ground, and that Cameo then pulled out a revolver and

shot the victim twice.  

	Later that evening, Detective Lorotkvich conducted a lineup where Pierce, Butler and Sneed independently identified respondent

and Cameo as the two aggressors in the incident.  Butler also

identified Robinson as being present with respondent and Cameo.

	Following these identifications, Detective Lorotkvich

interviewed Patterson at his home.  Patterson described the

incident in essentially the same manner as his friends and viewed

a photo array.  Patterson identified respondent as the person who

confronted and threatened him, and Cameo and Robinson as being on

the scene. 

	Detective Lorotkvich interviewed respondent about 1:30 a.m. on

September 10, 2000, in the presence of an assistant State's

Attorney and a youth investigator.  After being advised of his

Miranda rights, respondent related his version of the incident.  Respondent told him that he, Cameo Johnson and Cory Robinson walked

Robinson's girlfriend to the bus stop, then went toward  the liquor

store.  Respondent said that he was a member of the Blackstone

street gang and was aware that Cameo was carrying a gang handgun as

protection in the event they encountered rival gang members in the

area of 8700 South Yates.  

	Respondent also said that he then confronted a much larger

person at the liquor store and made several gang threats, i.e., "Blackstones run it around here," and "all is well."  He said that

he did not intend to fight this person, and just wanted to call his

bluff.  Respondent then pulled his hat off, and when he made a motion towards this person, he was punched in the face. 

	Gersley Kendricks, the stepfather of Johnny Patterson, was

called as a witness by respondent.  Kendricks testified that he

first talked to Patterson about the incident at the hospital on the

evening it occurred.  Patterson, who is 6'4" tall and weighs about

200 pounds, said that he was walking to the store at 87th and Yates

when he was confronted by a young man who said "let's air this

place out."  Patterson was told by someone that he had knocked the

person unconscious.  

	The circuit court found no probable cause that respondent

aided, abetted or encouraged the charged offenses and denied the

State's motion for transfer.  On appeal, the State contends that

there was probable cause to believe that respondent was accountable

for these crimes, and as a result, the court's denial of its motion

to transfer respondent to the criminal jurisdiction was erroneous

and should be reversed.

	Section 5-805(2)(a) of the Juvenile Court Act of 1987 (Act)

provides in pertinent part:

		"(2) Presumptive transfer.

		(a) If the State's Attorney files a petition,

at any time prior to commencement of the

minor's trial, to permit prosecution under the

criminal laws and the petition alleges the

commission by a minor 15 years of age or older of (i) a Class X felony other than armed

violence; (ii) aggravated discharge of a

firearm; *** and, if the juvenile judge

assigned to hear and determine motions to

transfer a case for prosecution in the

criminal court determines that there is

probable cause to believe that the allegations

in the petition and motion are true, there is

a rebuttable presumption that the minor is not

a fit and proper subject to be dealt with

under the Juvenile Justice Reform Provisions

of 1998 *** and that, except as provided in

paragraph (b), the case should be transferred

to the criminal court."  705 ILCS 405/5-

805(2)(a) (West 2000) (section 805(2)(a)).

Section 5-805(2)(b) of the Act (705 ILCS 405/5-805(2)(b) (West

2000) (section 5-805(2)(b))), provides that the court shall enter

an order permitting prosecution under the criminal laws unless the

court finds, based on clear and convincing evidence, that the minor

would be amenable to the care, treatment, and training programs

available through the juvenile court.

	Section 805(2)(a) requires that a probable cause hearing be

held for such a motion to transfer, and the rebuttable presumption

in favor of transfer applies only if the court finds probable cause to believe that the allegations in the petition and motion are

true.  In re W.J., 284 Ill. App. 3d 203, 672 N.E.2d 778 (1996).  A transfer hearing is not adjudicatory in nature.  People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366 (1979).  Rather, it has been found

to resemble a preliminary hearing where the court determines

whether the charged offense has been committed, and, if so, whether

there is probable cause to believe that it was committed by the

accused.  People v. P.H., 145 Ill. 2d 209, 582 N.E.2d 700 (1991) (P.H.).  The proceeding does not seek to determine guilt or innocence.  P.H., 145 Ill. 2d at 229.

	In this case, the evidence clearly showed that Patterson had

been shot with a gun and injured.  Since respondent did not do the

shooting, the inquiry focused on whether there was sufficient

evidence (see In re R.T., 271 Ill. App. 3d 673, 648 N.E.2d 1043 (1995) (R.T.) ("some evidence" in support of the criminal conduct charged is sufficient) to establish probable cause that respondent

was accountable for the shooting.

	A person is legally accountable for the criminal conduct of

another when:

		"Either before or during the commission of an

offense, and with the intent to promote or

facilitate such commission, he solicits, aids,

abets, agrees or attempts to aid, such other

person in the planning or commission of the offense."  720 ILCS 5/5-2(c) (West 2000).

This section incorporates the common design rule which provides

that where two or more persons engage in a common criminal design

or agreement, any acts committed by one person in the furtherance

of it are considered to be the acts of all parties to the design or

agreement and all are equally responsib1e for the consequences of

the further acts.  People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746 (1984).  Evidence of the person's involvement in a gang or gang-

related activity is admissible to show common purpose or design

provided that such membership or activity is related to the crime

charged.  People v. Jones, 259 Ill. App. 3d 905, 632 N.E.2d 293 (1994).  Moreover, where the evidence indicates that the person was

involved in the spontaneous acts of the group, the fact that the

criminal acts were not committed pursuant to a preconceived plan is

no defense.  In re W.C., 167 Ill. 2d 307, 657 N.E.2d 908 (1995).

	The evidence presented at the transfer hearing showed that

respondent told police that he was a member of the Blackstone

street gang, and on the night in question was with Cory Robinson

and Cameo Johnson.  He also admitted that he knew Cameo was

carrying a "nation" gun for protection against rival gang members

who might be in the area in which they were walking.  See People v. Brown, 249 Ill. App. 3d 986, 670 N.E.2d 1090 (1993).  Other evidence showed that respondent confronted Sneed and Weasle with

gang slogans identified with the Blackstone street gang and threatened to kick Sneed's "ass" when he left the store.

	Respondent then confronted Patterson with threats to air or

shoot the place out and physically harm Patterson.  As he talked,

respondent reportedly made continuous motions towards his pocket,

as did his companions who also began to surround Patterson and his

friends.  Respondent then took off his hat and made a quick motion

towards Patterson as if he was going to throw a punch.  Patterson,

however, punched respondent first knocking him to the ground.  At

that point, Cameo pulled out a revolver and fired two shots at

Patterson.  

	Although mere presence at the scene of an offense does not

render one accountable (People v. Taylor, 164 Ill. 2d 131, 646 N.E.2d 567140 (1995)), the evidence in this case shows that respondent

was not only present, but with knowledge that his companion was

armed against an encounter with rival gang members, initiated such

contact with Patterson and his companions using provocative  gang

slogans and threats of physical harm.  Through these actions and

his feigned movement toward Patterson, he created the situation

that led to the physical contact and the shooting.  See People v. Eubanks, 283 Ill. App. 3d 12, 19 669 N.E.2d 678 (1996).  The composite activity also evidenced a community of unlawful purpose to render

him accountable for the criminal acts charged.  People v. Torres, 100 Ill. App. 3d 931, 938 427 N.E.2d 3289 (1981). 

	The State presented sufficient evidence to establish probable cause to believe that respondent was accountable for the charged

offenses.  The circuit court abused its discretion in denying the

State's motion to transfer based on its ruling that there was no

probable cause.  R.T., 271 Ill. App. 3d at 679.  

	For the reasons set forth above, the circuit court's order is

reversed and the cause is remanded for further proceedings

consistent with section 805-2(b) of the Act.

	Reversed and remanded.

	HARTMAN, J., with THEIS, P.J,.., and KARNEZIS, JJ., concurring.