{ "id": 5665645, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL J. MISCICHOWSKI, Defendant-Appellant", "name_abbreviation": "People v. Miscichowski", "decision_date": "1986-05-14", "docket_number": "No. 85-0240", "first_page": "646", "last_page": "657", "citations": [ { "type": "official", "cite": "143 Ill. App. 3d 646" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "28 Cal. Rptr. 522", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "213 Cal. App. 2d 260", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2311088 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/cal-app-2d/213/0260-01" ] }, { "cite": "82 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3222859 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/1007-01" ] }, { "cite": "56 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405143 ], "weight": 4, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0461-01" ] }, { "cite": "49 Ill. App. 3d 369", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639454 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0369-01" ] }, { "cite": "100 Ill. App. 3d 931", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5496301 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0931-01" ] }, { "cite": "106 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3029726 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0315-01" ] }, { "cite": "116 Ill. App. 3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519330 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0984-01" ] }, { "cite": "99 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163903 ], "weight": 2, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0508-01" ] }, { "cite": "59 Ill. App. 3d 441", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3359141 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0441-01" ] }, { "cite": "73 Ill. App. 3d 16", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261766 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0016-01" ] }, { "cite": "59 S. Ct. 489", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "83 L. Ed. 1039", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "306 U.S. 638", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6148227, 6148484, 6148364, 6148295 ], "opinion_index": 0, "case_paths": [ "/us/306/0638-01", "/us/306/0638-04", "/us/306/0638-03", "/us/306/0638-02" ] }, { "cite": "99 F.2d 474", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 986238 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/f2d/99/0474-01" ] }, { "cite": "550 F2d 568", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 988704 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/f2d/550/0568-01" ] }, { "cite": "80 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3234790 ], "weight": 3, "pin_cites": [ { "page": "969" }, { "page": "969" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0963-01" ] }, { "cite": "35 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380069 ], "weight": 2, "pin_cites": [ { "page": "559" }, { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0552-01" ] }, { "cite": "22 Ill. 2d 592", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2790508 ], "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0592-01" ] }, { "cite": "40 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857760 ], "year": 1961, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0233-01" ] }, { "cite": "115 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558293 ], "weight": 2, "pin_cites": [ { "page": "527" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0524-01" ] }, { "cite": "129 Ill. App. 3d 704", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489532 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "709" }, { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0704-01" ] }, { "cite": "106 S. Ct. 139", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "88 L. Ed. 2d 114", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "106 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138004 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0186-01" ] }, { "cite": "122 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523312 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "19" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0013-01" ] }, { "cite": "52 Ill. 2d 558", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392845 ], "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0558-01" ] }, { "cite": "102 Ill. App. 3d 1063", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3073544 ], "pin_cites": [ { "page": "1067" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/1063-01" ] }, { "cite": "87 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031235 ], "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0077-01" ] } ], "analysis": { "cardinality": 920, "char_count": 23670, "ocr_confidence": 0.762, "pagerank": { "raw": 2.696931862957554e-07, "percentile": 0.8280899774465615 }, "sha256": "987f7692c2d8e608b58923242334a37c3c867236b42836ed98fed2ceff639848", "simhash": "1:ae2cf9236a918251", "word_count": 3987 }, "last_updated": "2023-07-14T15:11:23.440803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL J. MISCICHOWSKI, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCHNAKE\ndelivered the opinion of the court:\nOn February 22, 1985, after a jury trial in the circuit court of Lake County, defendant, Paul J. Miscichowski, was found guilty of involuntary manslaughter and sentenced to 30 months\u2019 probation. On appeal defendant argues: (1) that he was not proved guilty beyond a reasonable doubt; (2) that the trial court erred in denying his motion in arrest of judgment; (3) that he was improperly convicted on an accountability theory; and (4) that his verdict of guilty is legally inconsistent with his codefendant\u2019s verdict of not guilty.\nDefendant was arrested on July 5, 1984, and charged with reckless conduct. On July 15, 1984, defendant was further charged with involuntary manslaughter. On July 19, 1984, defendant was indicted by the April term of the Lake County grand jury for involuntary manslaughter (count I) and reckless conduct (count II). Defendant\u2019s case was consolidated with that against Dale Salata on October 9, 1984, and by agreement of the parties, was set for trial with a separate jury to be impaneled for each defendant. On November 1, 1984, the August term of the Lake County grand jury returned two additional indictments against defendant charging aggravated assault (count III) and unlawful use of weapons (count IV). Trial commenced on November 6, 1984.\nAt trial the evidence showed that on the night of July 4, 1984, decedent, Anna Kriston, and two of her friends, Gundun Klomp and Eleanore Miniard, drove to an area known as the Commonwealth Edison Beach in Waukegan. When they arrived they pulled into a parking lot area which is contained within two fences, one to the north, and one to the south. On the north is a 30- to 40-foot-high hill on property belonging to Johns-Manville. Access to the hill may be gained by walking around the north fence near Lake Michigan because the fence does not extend to the water\u2019s edge. To the south is a Commonwealth Edison power plant. There is a turnstile to a fisherman\u2019s pier located on the south fence and the only artificial light in the area is located at the turnstile. Lake Michigan and the beach area are directly to the east.\nAnna and her friends arrived at the beach area at approximately 11 p.m. and drove east through the parking lot. When they reached the middle of the lot, Anna, who was driving, slumped over into the front passenger seat where Klomp was sitting. It was later determined that Anna had been struck in the left side of her head by a .22-caliber bullet. The bullet fragmented into three pieces lodging in her brain and causing her death at 9:33 a.m. on July 5,1984.\nEric Sinderman and two of his friends, Peter Karlovics and Richard Conley, arrived at the beach in a pickup truck at approximately 11:15 p.m. Upon arriving they observed an ambulance and two police cars, and turned around to leave. At this time they observed two individuals west of the turnstile of the south fence. All three men identified defendant and codefendant Salata as the individuals they saw near the south fence. Sinderman testified that defendant was carrying a bow and arrow and Salata was carrying a rifle. Conley testified that defendant was the man carrying the rifle. Karlovics originally testified that defendant was carrying the bow but changed his testimony and said the defendant was carrying the rifle. Karlovics then changed his testimony a second time and stated that it was defendant carrying the bow and Salata carrying the rifle.\nSalata asked for a ride to the end of the road at the top of the hill and Sinderman agreed. Salata and defendant then got into the back of the truck and Sinderman drove them to the entrance of the Amstutz Highway which was at the top of the hill, and told them he could take them no farther. Salata, however, insisted that they take them farther. Sinderman proceeded on the Amstutz Highway, but then pulled over onto the shoulder in the middle of the entrance ramp. He told the defendant to get out, but Salata replied, \u201cNo. Bullshit. Keep going, remember I\u2019ve got the gun.\u201d\nSinderman then proceeded south on the Amstutz Highway. While on the Amstutz, Sinderman heard a faint shot, looked in the rear view mirror, and saw the glare of powder coming from the barrel of the rifle which Salata was holding at that time. Sinderman also recalled defendant sticking his hand through the window while they were on the Amstutz and handing a bullet to his friend Richard saying, \u201cSee, these are real bullets.\u201d Sinderman exited the Amstutz Highway at the Grand Avenue exit and dropped defendants off at Grand Avenue and Sheridan Road. Police later obtained a spent .22-caliber cartridge and a live .22-caliber round from the bed of the truck.\nThe evidence also showed that James Sutherland drove to the Commonwealth Edison beach on the night of July 4, 1984. While Sutherland testified on direct examination that he arrived at about 9:30 p.m., his testimony on cross-examination showed that he probably arrived no later than 8:30 p.m. Sutherland testified that when he arrived at the beach he drove east in the parking lot and heard what he thought was a rock strike the side or undercarriage of his van. The following evening, at approximately 8 p.m., Sutherland noticed what appeared to be a bullet hole in the left side of his van. Sutherland drove his van to the Waukegan police department where a .22-caliber bullet was recovered from the van.\nSergeant Leo Graham of the Waukegan police department arrived at the beach area at 5:30 a.m. on July 5, 1984, and observed a four-door gray sedan parked along the south fence near the turnstile. The gray vehicle was later identified as belonging to Salata\u2019s grandmother. Near the rear tire on the driver\u2019s side of the gray sedan, Graham found an empty .22-caliber cartridge shell and a live .22-caliber round. Also, on July 5, 1984, Detective Bruce Repp of the Waukegan police department recovered a .22-caliber rifle and a compound bow from Salata\u2019s residence.\nRobert Wilson, a firearm\u2019s identification expert and forensic scientist at the Northern Illinois Police Crime Lab testified that the .22-caliber shell casings found near the Salata automobile and in the bed of the Sinderman truck could have been fired only from the .22-caliber rifle found at the Salata residence. Further, the bullet recovered from the Sutherland van and the bullet fragment recovered from the decedent had the same class characteristics, six lands and grooves inclined to the right. Wilson admitted, however, that such class characteristics reflect the manner in which most .22-caliber weapons are made and that there could be over one million weapons in the world that could have fired the two recovered rounds. Wilson also testified that the composition of the fragment recovered from the decedent appeared to be lead with a lubaloy-type finish. The live .22-caliber round found next to the Salata vehicle at the beach was a .22-caliber, lubaloy, hollow-point, CCI-brand bullet.\nI\nDefendant\u2019s first argument is that he was not proved guilty beyond a reasonable doubt. He argues that the State\u2019s case failed to exclude every reasonable theory of innocence and failed to prove where he was when the victim was shot or the manner in which the fatal bullet was fired (i.e., whether it was done in a reckless, deliberate or accidental manner).\nThe State does not dispute that its case against defendant rests on circumstantial evidence. When the evidence finding the defendant guilty is entirely circumstantial, the facts proved must be consistent with the defendant\u2019s guilt and inconsistent with any reasonable hypothesis of innocence. (People v. Evans (1981), 87 Ill. 2d 77, 83.) However, where the circumstantial evidence relied upon to support the defense that another committed the crime is unsatisfactory, based on mere surmise or possibility without evidence to support it, a hypothesis consistent with innocence may be rejected by the trier of fact. People v. Despain (1981), 102 Ill. App. 3d 1063,1067.\nDefendant contends that the State\u2019s evidence established that the Sutherland van was struck by a .22-caliber bullet, fired from the north, at approximately 8:30 p.m. Therefore, defendant argues, because the State\u2019s evidence also established that he could not have been in the beach area as early as 8:30 p.m., it is plausible that an unknown third party was also present that night firing a .22-caliber weapon from the north in the area that the victim was shot. We do not agree.\nDefendant\u2019s theory of innocence rests totally upon the assumption that the \u201crock\u201d Sutherland thought he heard, was, in fact, the .22-caliber bullet that was later removed from the van. Sutherland\u2019s testimony, however, shows that he was driving on gravel at the time he thought he heard a rock bounce up and strike the side or undercarriage of his van. He also stated that he parked his van near the north fence facing east so that the left side of the van faced north the entire time he was at the beach until he left at approximately 11:15 p.m. We find defendant\u2019s theory of innocence is based upon mere surmise and possibility without evidence to support it. Sutherland\u2019s van could have been hit in the left side by a bullet fired from the north at any time prior to Sutherland\u2019s leaving at 11:15 p.m.\nWe also find that the State\u2019s evidence was sufficient to prove defendant\u2019s guilt beyond a reasonable doubt. The evidence showed that both he and Salata were present at the time and place of the fatal shooting and had in their possession a .22-caliber rifle and bullets of the type used to shoot the victim. Shortly after the shooting, defendant and Salata fled the scene by abandoning the car in which they had arrived and hitching a ride in a pickup truck. (People v. Harris (1972), 52 Ill. 2d 558, 561 (flight tends to show consciousness of guilt).) The jury heard testimony that the rifle was discharged at least twice at the beach (as shown by the second bullet obtained from the Sutherland van) and once while driving on the Amstutz Highway tends to show that the bullet that killed Anna Kriston was fired recklessly and was not an accidental discharge. Further, the State was not required to prove, as an element of involuntary manslaughter, that the bullet was not fired with the intent to kill her. People v. Hoffer (1984), 122 Ill. App. 3d 13, 19, affd (1985), 106 Ill. 2d 186, cert, denied (1985), 474 U.S. _, 88 L. Ed. 2d 114, 106 S. Ct. 139. See also People v. Frazier (1984), 129 Ill. App. 3d 704, 709; People v. Weeks (1983), 115 Ill. App. 3d 524, 527.\nDefendant also argues that the court erred in admitting into evidence the .22-caliber rifle found at Salata\u2019s residence. The test to determine the admissibility of a weapon is whether there is evidence to connect the weapon to the defendant and to the crime. (People v. Gonzales (1968), 40 Ill. 2d 233, 239; People v. Jones (1961), 22 Ill. 2d 592, 599.) Defendant contends that this test was not met because the State\u2019s evidence connected the rifle only to his codefendant Salata and not to him, and because the evidence did not show that the rifle fired the bullet that killed the decedent.\nDefendant\u2019s first contention is incorrect as a matter of law. Where there is sufficient evidence to establish that at least one weapon was used in the commission of the offense and that defendant participated in the offense, the weapon may be admitted even though the evidence does not show that defendant himself wielded or possessed it. (People v. McCasle (1966), 35 Ill. 2d 552, 559.) Further, the evidence showed that defendant was in the area of the shooting with the rifle at the time of the shooting. It was not necessary to prove that the particular weapon was the one which was actually used before it could be introduced into evidence. 35 Ill. 2d 552, 559.\nII\nDefendant\u2019s second argument is that the trial court erred in denying his motion in arrest of judgment. Defendant\u2019s argument is twofold. First, he contends that the State omitted from the indictment two essential elements of the offense of involuntary manslaughter: (a) that the killing was unintentional, and (b) that the killing was without legal justification. Second, defendant contends that the indictment of the April term of the grand jury for involuntary manslaughter was quashed by the indictment of the August grand jury on two additional charges.\nAs to defendant\u2019s first contention, we find that the indictment properly charged the offense of involuntary manslaughter. While it is true that by definition the offense of involuntary manslaughter occurs when one unintentionally kills another (Ill. Rev. Stat. 1983, ch. 38, par. 9 \u2014 3(a)), it does not necessarily follow that lack of intent is a necessary element of the offense. (People v. Hoffer (1984), 122 Ill. App. 3d 13, 19, aff'd (1985), 106 Ill. 2d 186, cert, denied (1985), 474 U.S. _, 88 L. Ed. 2d 114, 106 S. Ct. 139.) To the contrary, the only mental state required to sustain a conviction of involuntary manslaughter is recklessness. People v. Hoffer (1984), 122 Ill. App. 3d 13. See also People v. Frazier (1984), 129 Ill. App. 3d 704, 708; People v. Weeks (1983), 115 Ill. App. 3d 524, 527.) The indictment, therefore, did not have to state that the killing was unintentional.\nFurther, the words \u201cwithout lawful justification\u201d (Ill. Rev. Stat. 1983, ch. 38, par. 9 \u2014 3(a)), are merely a reference to affirmative defenses defendant could impose once charged. (People v. Williams (1980), 80 Ill. App. 3d 963, 969.) Unless defendant presents some evidence of an affirmative defense, the State\u2019s proof is complete without evidence that the act was without lawful justification. (80 Ill. App. 3d 963, 969.) At the time the indictment was filed, no such element existed in the State\u2019s case: nor did defendant raise an affirmative defense after indictment. Therefore, the indictment did not have to include, or be amended to include, that the killing was without legal justification. 80 Ill. App. 3d 963.\nAs to defendant\u2019s second contention, we find that the second indictment of the August grand jury did not quash the prior April indictment which charged involuntary manslaughter. Contrary to defendant\u2019s position, a subsequent indictment does not automatically quash a prior indictment. (United States v. Holm (9th Cir. 1977), 550 F2d 568; United States v. Strewl (2d Cir. 1938), 99 F.2d 474, cert, denied (1939), 306 U.S. 638, 83 L. Ed. 1039, 59 S. Ct. 489.) Defendant, therefore, was properly indicted for the offense of involuntary manslaughter. While defendant also argues that the second (August) indictment was improper because it sought to add charges without reindicting him on the original charges under the first indictment, that issue is not before the court since both charges under the second indictment were dismissed.\nIll\nDefendant\u2019s next argument is that he was improperly convicted of involuntary manslaughter on a theory of accountability. Defendant first asserts that under People v. Mikel (1979), 73 Ill. App. 3d 16, a person may not be guilty of involuntary manslaughter on an accountability theory. The State argues to the contrary relying on People v. Bolden (1978), 59 Ill. App. 3d 441.\nSection 5 \u2014 2(c) of the Criminal Code of 1961 states:\n\u201cA person is legally accountable for the conduct of another when:\n* * *\n(c) 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.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 5 \u2014 2(c).)\nIn Mikel, the court held that the trial court had properly refused the defendant\u2019s involuntary manslaughter instruction because a person could not be guilty of involuntary manslaughter on an accountability theory. The court reasoned:\n\u201cHowever, section 5 \u2014 2(c) requires that the one to be charged with accountability intends \u2018to promote or facilitate\u2019 the commission of the offense. Just as one cannot attempt murder without an intent to kill [citation], it would seem that one could not intend to \u2018promote or facilitate\u2019 the commission of a homicide without intending that the victim be killed. As we have indicated, had defendant had that intent, he would have been guilty of murder.\u201d (Emphasis added.) (People v. Mikel (1979), 73 Ill. App. 3d 16,19.)\nIn view of our supreme court\u2019s more recent opinion in People v. Terry (1984), 99 Ill. 2d 508, we believe Mikel was wrongly decided.\nIn Terry, the court held that under section 5 \u2014 2(c), which incorporated the long established \u201ccommon-design rule\u201d (People v. Terry (1984), 99 Ill. 2d 508, 514), the State need only prove that the defendant had the specific intent to promote or facilitate a crime, and not the actual crime for which he was charged. Once the State proved that the defendant intended to promote or facilitate a crime, he was responsible for any criminal act done in furtherance of the intended crime. Thus, where the defendant intended to promote or facilitate only a battery, he was legally responsible for the act of his codefendant in stabbing and killing the victim. The defendant did not have to intend that the victim be killed. Applying Terry to the present case, we agree with the court\u2019s decision in Bolden and hold that a person can be guilty of involuntary manslaughter on an accountability theory because he does not have to intend that the victim be killed.\nDefendant argues in the alternative that the State\u2019s evidence failed to prove beyond a reasonable doubt that he aided or abetted in the commission of a crime. Defendant contends that the State\u2019s evidence, at best, showed only that he was present at the scene. We hold to the contrary.\nWe note at the outset that the State argues that the evidence establish circumstantially that it was defendant who fired the fatal shot. However, two of the State\u2019s three witnesses testified that it was Salata who was carrying the rifle after the fatal shooting, and that it was Salata who fired the rifle from the bed of the pickup truck while traveling down the Amstutz Highway. Further, the rifle was found at Salata\u2019s residence the day after the shooting. We find, therefore, that the State failed to prove beyond a reasonable doubt that defendant actually fired the fatal bullet and defendant\u2019s conviction must rest on a theory of accountability.\nTo be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (Ill. Rev. Stat. 1983, ch. 38, par. 5 \u2014 2(c).) While mere presence at the scene or mere acquiescence in another\u2019s actions is ordinarily insufficient to establish accountability, one may be held to aid and abet without physically participating in the overt act. (People v. Young (1983), 116 Ill. App. 3d 984; People v. Watson (1982), 106 Ill. App. 3d 315; People v. Torres (1981), 100 Ill. App. 3d 931.) If the evidence shows that defendant was present at the scene of the offense without disapproving or opposing it, the trier of fact may consider this conduct along with other circumstances in determining whether defendant assented to the commission of the offense and thereby aided and abetted the actor. (People v. Young (1983), 116 Ill. App. 3d 984; People v. Watson (1982) 106 Ill. App. 3d 315; People v. Torres (1981), 100 Ill. App. 3d 931.) Similarly, a close \u00e1ffiliation with the codefendant after the commission of the offense, and a failure to report the incident is relevant to establishing accountability. (People v. Young (1983), 116 Ill. App. 3d 984; People v. Watson (1982), 106 Ill. App. 3d 315; People v. Torres (1981), 100 Ill. App. 3d 931.) Defendant\u2019s flight from the scene may also be considered. People v. Morris (1977), 49 Ill. App. 3d 369.\nThe evidence presented in the present case showed that defendant was with Salata at a party on the evening of the shooting, that he left the party with Salata and drove to the beach area, that he was with Salata shortly after the shooting, that he was also carrying a weapon at the beach, that this weapon was later found at Salata\u2019s residence, that defendant fled the scene with Salata, that defendant assisted in the escape by making an implied threat when he handed a bullet into the truck cab, stating, \u201cSee, these are real bullets,\u201d and that defendant failed to report the incident. This evidence was sufficient to support his conviction on a theory of accountability.\nIY\nDefendant\u2019s fourth argument is that his verdict of guilty on the charge of involuntary manslaughter is legally inconsistent with his codefendant\u2019s verdict of not guilty. He contends that since the only difference in evidence presented to the juries was Salata\u2019s incriminating statement to the police the day after the shooting, the verdicts must be considered inconsistent.\nOrdinarily, the acquittal of one defendant does not in itself raise a reasonable doubt as to the guilt of a codefendant. (People v. Stock (1974), 56 Ill. 2d 461, 465.) For a reasonable doubt to be raised in such cases, it must be shown that the evidence given against all of the defendants is identical in all respects. (56 Ill. 2d 461, 465.) Defendant concedes that the evidence given against himself and Salata was not identical in all respects, but argues that under People v. Perez (1980), 82 Ill. App. 3d 1007, the rule in Stock can be applied where the difference in evidence is slight. We find the difference in evidence here was not \u201cslight.\u201d\nIn codefendant Salata\u2019s trial the jury heard testimony of Salata\u2019s statement to the police on the day after the shooting. This statement was both inculpatory and exculpatory. Salata admitted being at the beach area at the time of the shooting, and to having fired the rifle twice. Salata also stated, however, that both he and defendant fired the rifle, that he fired his two shots into the air across the parking lot, that he did not see where defendant fired the rifle, and that he did not believe that he had fired the shot that killed the girl.\nIn the Salata case, therefore, the jury heard evidence which, if believed, showed that Salata did not fire the fatal bullet. In defendant\u2019s case, however, while the State did not prove that defendant fired the fatal bullet, defendant did not present any affirmative proof that he did not fire it. Thus, while there is no doubt that the verdicts are inconsistent (Salata was guilty of involuntary manslaughter under a theory of accountability even if he did not fire the fatal bullet), the inconsistency may be explained by the jury\u2019s reluctance to convict of involuntary manslaughter someone they believe did not fire the fatal bullet. (Cf. People v. Stock (1974), 56 Ill. 2d 461, citing People v. Stone (1963), 213 Cal. App. 2d 260, 28 Cal. Rptr. 522.) Such an inconsistency based on the relationship shown to have existed between the defendants may be \u201cinconsistent against the law,\u201d not against the defendant, and does not raise a reasonable doubt of innocence. People v. Stock (1974), 56 Ill. 2d 461; People v. Stone (1963), 213 Cal. App. 2d 260, 28 Cal. Rptr. 522.\nFor the reasons stated herein, the judgment of the circuit court of Lake County is affirmed.\nJudgment affirmed.\nLINDBERG and STROUSE, JJ., concur.", "type": "majority", "author": "JUSTICE SCHNAKE" } ], "attorneys": [ "Charles W. Smith, of Rosing, Applehans & Smith, of Waukegan, for appellant.", "Fred L. Foreman, State\u2019s Attorney, of Waukegan (William L. Browers and Peter M. Tumminaro, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL J. MISCICHOWSKI, Defendant-Appellant.\nSecond District\nNo. 85 \u2014 0240\nOpinion filed May 14, 1986.\nCharles W. Smith, of Rosing, Applehans & Smith, of Waukegan, for appellant.\nFred L. Foreman, State\u2019s Attorney, of Waukegan (William L. Browers and Peter M. Tumminaro, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0646-01", "first_page_order": 668, "last_page_order": 679 }