SIXTH DIVISION

January 10, 2003

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial, respondent J.A. was adjudicated delinquent of aggravated batterycausing great bodily harm. He was sentenced to 2 years' probation and 30 hours of communityservice. On appeal, he contends that the State failed to prove the element of great bodily harmbeyond a reasonable doubt. He asks that his delinquency finding be reduced to battery.

On October 10, 1999, approximately 10 to 15 people were involved in a fight that broke outin the parking lot of the McDonald's restaurant at 600 North Clark Street in Chicago. Respondentstabbed Trevor Banks once in his back left shoulder. Banks felt his shoulder being punctured; hedid not know how deep the wound was. He stated, "It's like somebody pinch you; that's how it feltalmost." At the hospital, Banks was advised to have his wound stitched, but Banks refused and wasgiven pain pills. Respondent J.A. was charged with aggravated battery predicated upon great bodilyharm.

The offense of battery is defined as intentionally or knowingly causing bodily harm to anindividual. 720 ILCS 5/12-3(a)(1) (West 2000). In defining the term "bodily harm" as it relates tosimple battery, the Illinois Supreme Court has indicated as follows:

"Although it may be difficult to pinpoint exactly what constitutesbodily harm for the purposes of the statute, some sort of physical painor damage to the body, like lacerations, bruises or abrasions, whethertemporary or permanent, is required." People v. Mays, 91 Ill. 2d 251,256 (1982).

Aggravated battery consists of intentionally or knowingly causing great bodily harm orpermanent disability while committing a battery. 720 ILCS 5/12-4(a) (West 2000). The statuteprovides as follows:

"Aggravated Battery.

(a) A person who, in committing a battery, intentionally orknowingly causes great bodily harm, or permanent disability ordisfigurement commits aggravated battery." 720 ILCS 5/12-4(a)(West 2000).

The infliction of great bodily harm is an essential element of the offense of aggravated batteryas defined in subsection 12-4(a). People v. Figures, 216 Ill. App. 3d 398, 401 (1991). In the instantcase, the respondent was charged with aggravated battery predicated upon great bodily harm. Whilethe element of great bodily harm does not lend itself to a precise legal definition, it requires proofof an injury of a greater and more serious nature than a simple battery. People v. Costello, 95 Ill.App. 3d 680, 684 (1981). Aggravated battery requires more serious injury and is determined by theactual injury received. In re T.G., 285 Ill. App. 3d 838, 846 (1996); Figures, 216 Ill. App. 3d at 401.

In Figures, we recognized the guidance provided by the Illinois Supreme Court regarding thedistinction between "bodily harm" and "great bodily harm." We noted as follows:

"Because great bodily harm requires an injury of a graver and moreserious character than an ordinary battery, simple logic dictates thatthe injury must be more severe than that set out in the Maysdefinition. The word 'great' must be given effect in construing theaggravated battery statute; statutes should be interpreted so that noword or phrase is rendered superfluous or meaningless." Figures, 216Ill. App. 3d at 401, citing People v. Parvin, 125 Ill. 2d 519 (1988).

When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether,after viewing the evidence in the light most favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt. Jackson v.Virginia, 443 U. S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Cox, 195Ill. 2d 378, 387 (2001). In this case the only element at issue is the element of great bodily harm. If the State failed to prove great bodily harm beyond a reasonable doubt, a conviction for aggravatedbattery predicated upon great bodily harm must be vacated. People v. Watkins, 243 Ill. App. 3d 271,278 (1993).

Whether the defendant inflicted great bodily harm upon the victim is a question for the trierof fact. Figures, 216 Ill. App. 3d at 401. However, when a victim suffers bodily harm, rather than

great bodily harm, a conviction for aggravated battery predicated upon great bodily harm must bevacated. Figures, 216 Ill. App. 3d at 402. We are mindful that it is not the function of this court toretry a defendant when presented with a challenge to the sufficiency of the evidence. People v.Collins, 106 Ill. 2d 237, 261 (1985). A criminal conviction will not be set aside unless the evidencewhen viewed in the light most favorable to the prosecution is so "unsatisfactory, improbable orimplausible" that it creates a reasonable doubt of the defendant's guilt. People v. Slim, 127 Ill. 2d302, 307 (1989).

In the instant case, in support of its argument that the respondent inflicted great bodily harmon the victim, the State relies on People v. Matthews, 126 Ill. App. 3d 710 (1984), and contends that"a simple bruise on the head caused by a baseball bat and butt of a gun is sufficient to constitute greatbodily harm and aggravated battery." The victim in Matthews testified that she only had a bruise onher head. However, Matthews does not support the State's argument because it does not stand forthe proposition that a bruise is sufficient to prove great bodily harm. The evidence in Matthewsdemonstrated that the victim was struck on the head with the gun and then was repeatedly struck byseveral full-force blows on the head and arms with a baseball bat. Based on that evidence, the juryfound the victim had suffered great bodily harm, and that finding was affirmed on appeal. Matthews,126 Ill. App. 3d at 714-15.

We have repeatedly articulated the proposition that "great bodily harm" is more serious orgrave than lacerations, bruises, or abrasions that characterize "bodily harm." Costello, 95 Ill. App.3d at 684; Figures, 216 Ill. App. 3d at 401. The finding in Matthews is consistent with thatproposition. Moreover, the repeated blows delivered to the head and arms of the victim in Matthewsby use of a gun and baseball bat distinguish Matthews from the instant case. Unlike Matthews, inthe instant case, the victim did not receive repeated blows but, rather, was stabbed once, which hedescribed as feeling like somebody pinched him.

In support of its argument that the State failed to prove the element of great bodily harm, therespondent relies on In re T.G., where this court reversed an aggravated battery conviction for failureto show great bodily harm. In re T.G., 285 Ill. App. 3d 838, 846 (1996). In T.G., the victim testifiedthat he received three stab wounds to the chest and that the first wound felt like he was being pokedwith a pen or pencil. T.G., 285 Ill. App. 3d. at 846. In the instant case, the victim described thesingle wound as feeling like somebody pinched him. The record in the instant case is unclearregarding the weapon used. It reflects various descriptions of the weapon including "sharp thing,""ice pick," "small knife," and "no longer than an ice pick" four to five inches in total length. Theweapon in this case was described as four to five inches in total length, but the record reflects noevidence or specification as to blade length or length of the sharp part of the "thing" used.

The record further lacks evidence regarding the nature of the injury and the harm caused tothe victim in this case. Respondent contends that the evidence of harm caused by one wound in thiscase was less than the evidence of harm caused by the three stab wounds to the victim in T.G. Respondent further notes that in T.G. there was evidence of bleeding as a result of the various stabwounds, but that there was no such evidence in this case. In T.G., the victim testified he felt the firststab, which he described as "like being poked with a pen or pencil," but there was no evidence thathe felt the other two. T.G., 285 Ill. App. 3d at 846. The victim in T.G. testified that he did notrealize that he had been stabbed until after he noticed his shirt was cut. When he opened his shirt,he saw three bloody wounds. In finding that great bodily harm was not proved beyond a reasonabledoubt in T.G., we took into consideration the evidence of the three stab wounds, but regarding thebodily harm to the victim we noted that "[t]here was no other evidence of the extent or nature of hisinjuries." T.G., 285 Ill. App. 3d at 846.

Similarly, in this case, the victim described the injury as feeling like somebody pinched him,but there was no evidence of the extent or nature of the victim's injury from the single wound. Wenote the victim was advised to have his wound stitched, but he refused to do so. The victim's refusalof treatment plays no part in our analysis. Such refusal is not relevant to the question of whethergreat bodily harm has been proved beyond a reasonable doubt because inquiry into great bodily harmshould center on what injuries the victim actually received, and not what the victim did or did notdo to treat the injuries. Costello, 95 Ill. App. 3d at 684. We are mindful that the treatment required,not the treatment actually administered, is the relevant inquiry. Costello, 95 Ill. App. 3d at 684. However, the record in this case is vague as to the treatment required, reflecting the victim wasadvised to have his wound stitched, but failing to indicate the number of stitches so recommendedor who made that recommendation.

In determining the question of whether great bodily harm has been proved beyond areasonable doubt, we take into consideration evidence of what injury the victim actually received,the evidence of the nature and extent of the victim's injury, and evidence of the treatment required. In the instant case, regarding what injury the victim actually received, we note that he testified he"felt something but it didn't really bother [him]." There was no evidence the victim was bleeding. Regarding the extent of his discomfort, he stated, "It's like somebody pinch you, that's how it feltalmost." In this case, the record reflects no evidence of the nature and extent of the injury beyondthe fact that the victim felt like he had been pinched and he was advised to have the wound stitched. No medical testimony or other testimony regarding the nature and extent of the single wound wasoffered. No evidence as to the number of stitches recommended was offered. The record reflectedno evidence describing the wound. When asked about the depth of the wound, the victim stated thathe did not know. No evidence was produced as to the size or depth or length of the wound. The trierof fact was not only given no description of the wound, but was also given no opportunity to viewthe wound photographically or in open court. Proof of great bodily harm to sustain a conviction foraggravated battery requires more than evidence of a single stab wound of indeterminate size, whichfelt like a pinch and for which an indeterminate number of stitches were advised by someoneunnamed.

We note the State argues that this appeal is a waste of time because, "even if this court woulddetermine that respondent only committed simple battery, that would not have any necessary impacton any consequences of this case." That argument ignores the fact that whether the adjudication ofdelinquency is based on battery, a misdemeanor under the Criminal Code of 1961 (720 ILCS 5/12-3(b) (West 1998)), as opposed to aggravated battery, a Class 3 felony (720 ILCS 5/12-4(e) (West1998)), can have an impact on the minor respondent. An adjudication of delinquency based on afelony could make the minor respondent eligible for future punishment as a habitual juvenileoffender; however, an adjudication based on a misdemeanor would not. 705 ILCS 405/5-815 (West1998). An adjudication based on a felony, rather than a misdemeanor, could in the future subjectthe minor respondent to mandatory transfer to criminal court for prosecution as an adult. 705 ILCS405/5-815(1) (West 1998).

More importantly, the State's argument ignores the fundamental right of the minor respondentto an appeal. The State's argument further ignores the fundamental right of the minor respondent to require proof beyond a reasonable doubt of the offense of aggravated battery causing great bodilyharm before being adjudicated delinquent for this offense.

The question in this case is whether the element of great bodily harm was proved beyond areasonable doubt. The State is required to prove each element of the alleged offense beyond areasonable doubt. Jackson, 443 U.S. at 316, 61 L. Ed. 2d at 571, 99 S. Ct. at 2787. We conclude,upon reviewing all the evidence in the light most favorable to the prosecution, that there isinsufficient evidence that Trevor Banks suffered great bodily harm as required by the aggravatedbattery statute. However, there is sufficient evidence that Trevor Banks suffered bodily harm asrequired by the battery statute. We modify the adjudication of delinquency from aggravated batteryto battery and affirm that modified disposition.

We note that we in no way condone the conduct of the minor respondent. We emphasize that our modification of the adjudication of delinquency from aggravated battery to battery is based oninsufficient proof that the victim's injury was of a greater and more serious nature than a simplebattery. While "great" as noted by the dissent may indeed be in the eye of the beholder, based on thisrecord, the trier of fact had insufficient evidence of great bodily harm to behold. The word "great"must be given effect in construing and applying the aggravated battery statute. In the instant case,the infliction of great bodily harm is an essential element of the offense of aggravated battery. Greatbodily harm requires proof of an injury of a graver and more serious character than lacerations,bruises, abrasions, physical pain, or damage to the body, which constitute bodily harm in the contextof the battery statute. T.G., 285 Ill. App. 3d at 846. Aggravated battery requires more seriousinjuries and is determined by the actual injuries received. T.G., 285 Ill. App. 3d at 846 (three stabwounds to the chest, of which the victim felt only one, does not prove great bodily harm); Figures,216 Ill. App. 3d at 401.

The State is required to prove each element of the alleged offense beyond a reasonable doubt. Based on the record, including the evidence of what injury the victim actually received, the evidenceof the nature and extent of the injury, and the evidence of the treatment required, the trier of fact hadinsufficient evidence that Trevor Banks suffered great bodily harm to find aggravated battery provedbeyond a reasonable doubt. For the reasons previously discussed, we modify the adjudication ofdelinquency from aggravated battery to battery and affirm that modified disposition. We remand forreconsideration of the sentence.

Affirmed as modified; cause remanded.

GALLAGHER, J., concurring.

O'BRIEN, P.J., dissenting.

JUSTICE GALLAGHER, concurring:

Throughout the ages, human beings have devised many and varied means of inflicting harmupon one another. And just as the means vary, so does the degree of harm. Before one can truly callbodily harm "great," it should be more severe than what one might do to a finger with a kitchen knifewhile cutting vegetables.

"Great," according to Webster's Third New International Dictionary, means "remarkable inmagnitude, power, intensity, degree or effectiveness." Webster's Third New International Dictionary994 (1993). Thus, I concur that the injury suffered here did not rise to great bodily harm.

PRESIDING JUSTICE O'BRIEN, dissenting:

A stab wound requiring stitches and inflicted by a weapon described as "sharp thing," "icepick," "small knife," and "no longer than an ice pick" four to five inches long is "great bodily harm"and more serious and grave than lacerations, bruises, or abrasions that characterize "bodily harm."

Perhaps "great" is in the eye of the beholder, and thus, a question for the trier of fact. I wouldaffirm.

Accordingly, I respectfully dissent.