No. 2--03--0773

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Around April 30, 2002, respondent, Gino W., discovered that his skateboard was broken.Believing that a classmate named Pat was responsible, respondent and three of his friends beganlooking for Pat, wielding baseball bats as they searched. They soon encountered Bradley A., whowas Pat's friend, and asked him where they could find Pat. Bradley answered, but respondent did notbelieve him. Using his baseball bat, respondent hit the front tire of the bike Bradley was straddling,damaging the front wheel. Respondent then began swinging the baseball bat at Bradley. Bradleyinterpreted respondent's act as an attempt to scare him, not hit him. Following a bench trial, the trialcourt adjudicated respondent delinquent based on a finding of guilty as to six offenses, one of whichwas aggravated assault (720 ILCS 5/12--2(a)(1) (West 2002)) against Bradley. Respondentsubsequently was sentenced to six years' probation, and he moved to reconsider, contending that hewas not proved guilty of aggravated assault beyond a reasonable doubt because Bradley was notfearful of respondent hitting him with the baseball bat. The trial court denied the motion, and thistimely appeal followed. We affirm.

The relevant testimony elicited at trial provides as follows. Bradley, who was 13 years oldin the spring of 2002, testified that, on April 30, 2002, he and two friends, Pat and Josh, went to aneighboring middle school to play football. Soon after they arrived, Pat and Josh left, leavingBradley, who was on his bicycle, alone on the football field.

While Bradley was waiting for Pat and Josh to return, respondent and three of his friends, twoof whom Bradley knew, approached Bradley, asking him where they could find Pat. Respondent andtwo of the other boys were carrying baseball bats. Bradley advised them that Pat went to get anotherfriend. Respondent, who did not believe Bradley, struck the front tire of Bradley's bike with hisbaseball bat, bending the wheel's rim and breaking the spokes. Bradley dropped his bike and beganbacking away from respondent. Respondent then swung his baseball bat at Bradley's midsection twoor three times, with the bat coming within two to three feet of hitting Bradley. Bradley testified thathe was "[j]ust backing off" as respondent was swinging the baseball bat at him and that the speed andforce with which respondent swung the bat were comparable to that used to hit a baseball.

Respondent and Bradley soon saw Pat and Josh returning to the field. Respondent, Bradley,and the three other boys ran towards Pat and Josh, and respondent demanded to know why Pat brokerespondent's skateboard. Respondent then ordered Pat to get off the bike he was riding. When Patrefused, respondent used the baseball bat to hit the front tire of Pat's bike and threatened to use thebat to give Pat a concussion. Bradley then went to the home of family friends, which was nearby, andhad them call the police.

On cross-examination, Bradley testified that, after he dismounted his bike, respondent stoodapproximately three to four feet away from him. Bradley stated that he was not afraid of being hitby respondent, clarifying that, when respondent swung the bat at him, he did not believe thatrespondent was trying to hit him. Rather, Bradley thought that respondent was attempting to scarehim. Bradley also testified that he and respondent are friends and have been friends for at least fouryears.

The trial court adjudicated respondent delinquent, based on a finding of guilty as to sixoffenses, one of which was aggravated assault against Bradley. In finding respondent guilty of thisaggravated assault, the trial court recognized that there was conflicting testimony regarding whetherrespondent placed Bradley in reasonable apprehension of receiving a battery. For example, the trialcourt noted that Bradley testified on cross-examination that he believed that respondent was tryingto scare him, not hit him, when respondent swung the baseball bat. The trial court did not find thistestimony credible, believing that Bradley's testimony on direct examination was more accurate. Specifically, the trial court found that "[t]he fact that [Bradley] backed away says to this Court thathe did believe that he was in reasonable fear of receiving a battery."

Respondent was sentenced, and he moved to reconsider, contending that he was not provedguilty of aggravated assault beyond a reasonable doubt because Bradley testified that he was notfearful of respondent hitting him with the baseball bat. The trial court denied the motion, reiteratingthat Bradley's act of "backing out of there at the time the bat got swung *** certainly indicates to[this court that Bradley] had [a] reasonable apprehension of receiving a battery."

On appeal, respondent challenges the finding of guilt of aggravated assault against Bradley. The State must prove beyond a reasonable doubt the elements of the substantive offenses chargedin a delinquency petition. In re S.M., 347 Ill. App. 3d 620, 626 (2004). On review, we will notoverturn a trial court's finding of delinquency unless, after viewing the evidence in the light mostfavorable to the State, no rational fact finder could have found the offenses proved beyond areasonable doubt. S.M., 347 Ill. App. 3d at 626. The fact finder, not a court of review, must assessthe credibility of the witnesses, resolve conflicts in the evidence, and decide what reasonableinferences to draw from the evidence. People v. Milka, 211 Ill. 2d 150, 178 (2004); S.M., 347 Ill.App. 3d at 626.

To sustain a charge of aggravated assault, the State must prove that (1) the respondent,without lawful authority, engaged in conduct that placed another in reasonable apprehension ofreceiving a battery, and (2) in committing the assault, the respondent used a deadly weapon. 720ILCS 5/12--2(a)(1) (West 2002); People v. Lucas, 170 Ill. App. 3d 164, 170 (1988). Whether thevictim was placed in reasonable apprehension of receiving a battery is a question that the fact findermust resolve. In re C.L., 180 Ill. App. 3d 173, 181 (1989). In assessing reasonable apprehension,the victim need not testify expressly that he was in apprehension of receiving a battery. People v.Ferguson, 181 Ill. App. 3d 950, 953 (1989); C.L., 180 Ill. App. 3d at 181. Rather, reasonableapprehension may be inferred from the evidence presented at trial, including the conduct of both thevictim and the respondent. C.L., 180 Ill. App. 3d at 181; In re P.S.B., 174 Ill. App. 3d 114, 117-18(1988).

Here, the trial court, as the fact finder, found that respondent had placed Bradley in reasonableapprehension of receiving a battery. Because the evidence supports the trial court's finding, wecannot disturb it. The facts revealed that respondent approached Bradley, demanding to know wherePat was. Although Bradley correctly answered respondent's question, respondent believed thatBradley was lying, and he expressed his anger at Bradley by hitting Bradley's bicycle with such forcethat he bent the wheel rim and broke the spokes. In response to respondent's act, Bradley, who wasstraddling his bicycle, dropped his bike and backed away from respondent as respondent continuedto swing at Bradley. Given these facts, we conclude that the State proved beyond a reasonable doubtthat respondent placed Bradley in reasonable apprehension of receiving a battery.

Relying on Bradley's statement that he did not believe that respondent was going to hit him,respondent claims that the State failed to prove that he placed Bradley in reasonable apprehensionof receiving a battery. Although Bradley did so testify, this portion of his testimony does not changeour conclusion. Several Illinois appellate courts have affirmed a defendant's conviction of aggravatedassault even though the victim did not testify that the defendant placed him in reasonableapprehension of receiving a battery. See, e.g., C.L, 180 Ill. App. 3d at 181-82; P.S.B., 174 Ill. App.3d at 117-18; People v. Harkey, 69 Ill. App. 3d 94, 95-96 (1979); People v. Peterson, 41 Ill. App.3d 1067, 1068-69 (1976); People v. Holverson, 32 Ill. App. 3d 459, 459-60 (1975).

Admittedly, this case is somewhat different because Bradley did not fail to testify aboutwhether he was placed in reasonable apprehension of receiving a battery. Rather, Bradley stated thathe did not believe that respondent was going to hit him. We believe that this difference is immaterialin light of the facts presented in this case. For instance, although Bradley testified that he did notbelieve that respondent was going to hit him, he also stated that respondent was trying to scare him,which can establish reasonable apprehension of receiving a battery. See People v. Burrows, 64 Ill.App. 3d 764, 766 (1978) (victim testified that he was frightened and "scared stiff"). Further, courtshave affirmed a defendant's conviction of aggravated assault when the victim testified that thedefendant's conduct "was enough to scare somebody," but not necessarily the victim. See People v.Chrisopulos, 82 Ill. App. 3d 581, 583, 585 (1980) (victim stated that the defendant was going toretrieve a gun, and, because the defendant was a "big guy, it was enough to scare somebody"). Moreover, even when the victim explicitly testified that the defendant never threatened him, courtshave affirmed a defendant's conviction of aggravated assault because the acts of the victim and thedefendant established that the victim was placed in reasonable apprehension of receiving a battery. See, e.g., People v. Alexander, 39 Ill. App. 3d 443, 445-47 (1976) (firefighter denied that thedefendant threatened him with a tire iron; however, the defendant did threaten the firefighter'spartner).

These cases suggest, as C.L. expressly states, that reasonable apprehension is an objectivestandard, meaning that " 'the apprehension must be one which would normally be aroused in the mindof a reasonable person.' " C.L., 180 Ill. App. 3d at 178, quoting W. Keaton, Prosser & Keaton onTorts