July 6, 2001

NO. 4-00-0874

JUSTICE KNECHT delivered the opinion of the court:

In June 2000, a jury convicted defendant, Daniel J.Stephens, of second degree murder (720 ILCS 5/9-2(a)(2) (West1998)). In October 2000, the trial court granted the State'smotion to sentence defendant as an adult and sentenced him to 12years' imprisonment. Defendant appeals, arguing the trial courtabused its discretion in sentencing him as an adult. We affirm.

The evidence at defendant's trial showed the following. In February 2000, defendant, age 16, and Damian Vogel, age 16,attended an underage drinking party at the home of Brian Morgan,age 16, in rural Liberty, Illinois. Morgan's father had purchased a keg of beer for the teens, and Morgan estimated 45 to 60people attended the party. During the day, defendant and RonWillingham had delivered logs to the residence for a bonfire tobe held during the party.

Defendant and Vogel were both students at Quincy SeniorHigh School and were acquaintances. At about 9:30 p.m., while atthe party, Vogel invited defendant, Nick Niewohner, and JeffOrebaugh to look at his new car. The group sat inside the carand decided to smoke marijuana from a "bowl" belonging to defendant. Defendant, Vogel, and Orebaugh had been drinking beforethey started smoking marijuana. After each had taken a number of"hits" from the bowl, defendant vomited in Vogel's car. Theyoung men exited the car, and Vogel demanded defendant clean upthe vomit from the car and threatened to "whoop his ass" ifdefendant did not clean up the vomit. Defendant, who was thensitting on the tailgate of a nearby truck, told Vogel to "chillout" and assured him he would clean it up in a minute. However,Vogel insisted defendant clean it up within two minutes or hewould "kick defendant's ass." Chris Wright, age 19, overheardthe argument and told Vogel and defendant to stop fighting.

Defendant walked toward the Morgan residence. Vogelfollowed him and encountered him on the other side of the house. Orebaugh and Niewohner followed Vogel to see what would happen.

Orebaugh testified he saw Vogel tackle defendant byhitting defendant's chest and wrapping his arms around defendant's back. Orebaugh was unsure if this actually knockeddefendant down. Vogel and defendant got up, and Vogel thenpunched defendant's face. Defendant then reached down and pickedup a log, described as about 16 inches long and 5 inches indiameter, and struck Vogel twice in the side of the head with thelog. Orebaugh stated Vogel then fell to the ground face first. He appeared to be unconscious because he did not move after hefell. Defendant then stood over Vogel's head and swung the logfour to six more times to the back of Vogel's head, makingdefinite contact at least three times. While defendant wasswinging the log, he was yelling, "I told you not to hit me." Orebaugh stated there was a significant size disparity betweendefendant and Vogel. Orebaugh described Vogel as approximately 5feet 11 inches tall and skinny, whereas defendant was approximately 6 feet 4 inches tall and weighed more than 230 pounds.

Niewohner testified similarly to Orebaugh and testifiedVogel did not move when defendant hit him with the log four toseven times. Niewohner started to run toward defendant, butChris Wright reached defendant before him and pulled defendantoff Vogel.

Wright testified he had been at the party 10 to 15minutes and was near the bonfire when he heard the sound of "twopieces of heavy wood knocking against each other." When Wrightwas able to discern where the noise was coming from, he began torun toward Vogel and defendant. As he ran toward them, hecontinued to hear the noise and saw defendant standing overVogel. He was able then to tackle defendant off Vogel. Defendant still had the log in his hand, and Wright asked defendantwhy he had hit Vogel with the log. Defendant replied, "He hit meChris. What do you expect me to do?" Defendant raised the logat Wright, but Wright ordered him to drop it. Wright tolddefendant he had killed Vogel, but defendant insisted Vogel wasstill "okay." Wright checked for Vogel's pulse and noticed alarge hole in the back of Vogel's head. Wright yelled forsomeone to call 911 and then drove away with his girlfriend.

Several other witnesses testified to hearing the soundof repeated "thumps" and to seeing a large individual standingover someone else. The larger figure was yelling crude comments at the individual on the ground and striking the person on theground with something.

Morgan testified someone told him defendant had hitVogel in the head, and he then ran to Vogel to see how badly hewas hurt. When Morgan saw how badly Vogel was hurt, he tolddefendant to call an ambulance and to stay there to tell themwhat he had done. Morgan told everyone else to leave before thepolice arrived. Defendant then called 911 and said a few wordsbefore Morgan took the phone from defendant and gave directionsto his home.

Defendant stated to the paramedic on the scene and thefirst officer on the scene he had struck Vogel in the head threetimes because Vogel had punched him. He stated Vogel had startedit. Defendant pointed out the log he used.

Defendant testified he had walked away from Vogel afterVogel's first threats to "kick his ass." Defendant then walkedto his vehicle to get some stuff to clean Vogel's car, and whenhe walked around the corner of the house, Vogel again threatenedhim. Defendant then pushed Vogel out of the way and walkedpassed Vogel. Defendant testified Vogel then struck him twicebehind one of his ears. Defendant tried to walk away again, butVogel tackled him and attempted to knock him down. Defendantcaught his balance by placing his hand on the ground, where ithappened to rest upon a log. Defendant stated he picked up thelog and struck Vogel three times with the log while they wherestill standing. Defendant stated Vogel fell to the ground on thethird blow. Defendant testified he did not remember standingover Vogel and striking him more after he fell or yelling at himas he struck him. Defendant testified he struck Vogel because hewas scared of him.

In February 2000, the State charged defendant withfirst degree murder (720 ILCS 5/9-1(a)(1) (West Supp. 1999)). Where the juvenile accused of first degree murder is 15 or older,transfer to the adult court is automatic. 705 ILCS 405/5-130(1)(a) (West 1998). Thus, defendant was tried as an adult. In June 2000, a jury found defendant guilty of the lessermitigated offense of second degree murder (720 ILCS 5/9-2(a)(2)(West 1998)). Defendant was then transferred back to juvenilecourt for purposes of sentencing. 705 ILCS 405/5-130(1)(c)(ii)(West Supp. 1999). The State filed a motion to have defendantsentenced as an adult pursuant to statute. 705 ILCS 405/5-130(1)(c)(ii) (West Supp. 1999). In August 2000, the trial courtconducted a hearing upon the motion.

Michael Furrie, assistant superintendent of operationsat the Illinois Youth Center, testified he has been with theIllinois Department of Corrections for more than 25 years withexperience in both juvenile and adult facilities of incarceration. Furrie then explained to the court some of the differencesand distinctions between the two systems. Furrie noted the mainpurpose of juvenile detention is rehabilitation, whereas thefocus in adult facilities is the safety and protection of thepublic. School attendance is mandatory in juvenile facilitieswhile merely voluntary in adult facilities.

Dr. Frank Froman, a clinical psychologist specializingin child psychology and behavior disorder, testified he administered a number of assessment tests to defendant. He also interviewed defendant's family and testified defendant had a goodrelationship with his father and stepmother. Froman measureddefendant's intelligence quotient at 88, placing him in the lowerquarter of individuals. Froman described episodical use ofalcohol and frequent use of marijuana by defendant. Fromanbelieved the marijuana use would help counter defendant's hyperactive symptoms. Froman thought his diagnosis of defendant wastypical of a youth his age. He testified defendant is more of achild than an adult in how he interacts with people, what he doesfor fun, and his thought process and understanding of himself. Froman stated defendant was a salvageable youth and could berehabilitated, but he opined that, if placed in an adult facility, defendant's chances of coming out a healthy individual weremuch reduced. Froman testified he did not believe defendant waspsychologically strong enough to deal with adult prisoners.

The trial court granted the State's motion to sentencedefendant as an adult. In October 2000, the trial court sentenced defendant to 12 years in the Department of Corrections,adult division, with credit for two days' time served and imposedrestitution and court costs.

Defendant appeals.

Defendant argues the trial court abused its discretionin sentencing him as an adult. Section 5-130(1)(c)(ii) of theJuvenile Court Act of 1987 (Act) (705 ILCS 405/5-130(1)(c)(ii)(West Supp. 1999)) provides as follows:

"(ii) If after trial or plea the courtfinds that the minor committed an offense notcovered by paragraph (a) of this subsection(1), that finding shall not invalidate theverdict or the prosecution of the minor underthe criminal laws of the State; however,unless the State requests a hearing for thepurpose of sentencing the minor under[c]hapter V of the Unified Code of Corrections [(730 ILCS 5/5-1-1 through 5-9-4 (West1998 & Supp. 1999))], the [c]ourt must proceed under [s]ections 5-705 and 5-710 of this[a]rticle [(705 ILCS 405/5-705 (West 1998);5-710 (West Supp. 1999))]. To request ahearing, the State must file a written motionwithin 10 days following the entry of a finding or the return of a verdict. Reasonablenotice of the motion shall be given to theminor or his or her counsel. If the motionis made by the State, the court shall conducta hearing to determine if the minor should besentenced under [c]hapter V of the UnifiedCode of Corrections. In making its determination, the court shall consider among othermatters: (a) whether there is evidence thatthe offense was committed in an aggressiveand premeditated manner; (b) the age of theminor; (c) the previous history of the minor;(d) whether there are facilities particularlyavailable to the Juvenile Court or the Department of Corrections, Juvenile Division,for the treatment and rehabilitation of theminor; (e) whether the security of the publicrequires sentencing under [c]hapter V of theUnified Code of Corrections; and (f) whetherthe minor possessed a deadly weapon whencommitting the offense. The rules of evidence shall be the same as if at trial. Ifafter the hearing the court finds that theminor should be sentenced under [c]hapter Vof the Unified Code of Corrections, then thecourt shall sentence the minor accordinglyhaving available to it any or all dispositions so prescribed."

Defendant argues the trial court abused its discretionbecause all six of the statutory factors to determine if heshould be sentenced as an adult should have been resolved in hisfavor. Reviewing courts are limited to determining whether thecircuit court's findings are against the manifest weight of theevidence or reflect an abuse of discretion. People v. Underwood,50 Ill. App. 3d 908, 910, 365 N.E.2d 1370, 1372 (1977), rev'd onother grounds, 72 Ill. 2d 124, 378 N.E.2d 513 (1978).

Defendant contends the trial court should have weighedeach statutory factor in his favor and thus the court abused itsdiscretion in sentencing him as an adult. The trial court isbound to consider the specific criteria set forth in the Act. People v. Ollins, 231 Ill. App. 3d 243, 247, 606 N.E.2d 192, 196(1992). As to the first factor, defendant argues he was notaggressive until Vogel attacked and provoked him. In consideringthe second factor, defendant points out he was 16 years old whenhe committed the crime, making him eligible to be sentenced as ajuvenile. As to the third factor, defendant contends he had noprevious criminal history. As to the fourth factor, defendantcontends he will be out of place in adult prison and there areproper facilities for him with the juvenile department of corrections. With regard to the fifth factor, defendant contends thetestimony of Dr. Froman shows he is not a danger to society andit is in the best interest of society to sentence him as ajuvenile. As to the final factor, defendant contends he did notbring a weapon to this fight and instead merely happened to layhis hand upon the log. Based upon the six statutory factors,defendant argues the court must sentence him as a juvenile.

While the court must consider all the factors, no onefactor is determinative, nor must each factor be given equalweight. People v. Luckett, 295 Ill. App. 3d 342, 347, 692 N.E.2d1345, 1348 (1998). As the court explained in Luckett, 295 Ill.App. 3d at 347-48, 692 N.E.2d at 1348:

"Moreover, not all of the statutory criteriamust be resolved against the minor to justifytreating him as an adult. See People v.Sistrunk, 259 Ill. App. 3d 40, 48, 630 N.E.2d1213, 1219 (1994). Where the record showsthat the trial court considered all the factors and its determination is not an abuse ofdiscretion, then the ruling will be affirmedon appeal. See [People v.] Martin, 285 Ill.App. 3d [623,] 631, 674 N.E.2d [90,] 95[(1996)]."

Here, the record shows the State properly moved tosentence the defendant as an adult. Thereafter, the trial courtreviewed the evidence relating to the statutory factors. Thecourt then made a careful examination of each of the factors inmaking the determination.

The trial court pointed out at the time of sentencingthat defendant may have been 16 years old at the time of theoffense, but he was very close to 17 years old and "the closerone is to 17, the more that suggests an adult punishment." As tothe next factor, the court took note Vogel may have been theinitial aggressor. However, the court then pointed out defendantadministered several crushing blows to the back of Vogel's skullafter Vogel was face down upon the ground and "[i]n all likelihood unconscious but certainly offering no aggression or evendefense." The court also explained how defendant yelled at Vogelin such crude language as he struck Vogel upon the ground. Thisshowed defendant's aggression in "not just his actions, but alsoin his words and in his thoughts."

The trial court then noted the factor of prior historyweighed in favor of defendant by all accounts, except defendant'sunderage use of alcohol and drugs. Concerning the fourth factor,the court explained its belief defendant would still be providedschooling and other needed services in an adult facility, although possibly at a different pace. As to the sixth factor, thecourt found "[a] log in this case clearly was a deadly weapon." It was of no difference defendant only happened upon his weapon. Finally, the court made a detailed examination of the fifthfactor and took note of the seriousness of the offense, the lackof explanation as to why this fight ended so tragically, and theneed to protect society. The six factors enumerated in thestatute are to be considered by the juvenile court "among othermatters" indicating the legislature's intent the trial court'sinquiry is not limited to these six factors. In re Burns, 67Ill. App. 3d 361, 369, 385 N.E.2d 22, 28 (1978).

From our review of the record on appeal, we concludethe trial court properly considered the statutory factors contained in the Act. The court explained in some detail itsfindings on each of the factors. Although all of the factors maynot cut against defendant, this is not necessary for sentencingas an adult. The trial court properly considered all of thestatutory factors. We further conclude the trial court did notabuse its discretion when it determined defendant should besentenced as an adult.

III. CONCLUSION

Accordingly, we affirm the judgment of the trial court.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.