The opinion
JUSTICE HEIPLE, dissenting:
While I agree with the majority that the evidence clearly establishes that the offense of gambling was committed in Cheshier’s basement on the night of April 5-6, 1987, I do not agree that the State proved the defendant’s guilt beyond a reasonable doubt.
The State relied on the theory of accountability, which means it had to establish beyond a reasonable doubt that before or during the commission of the crime, the defendant solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of the crime, and that he had the concurrent, specific intent to promote or facilitate the commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2.) However, accountability theory was not properly invoked in this case because none of the evidence suggests that the defendant was in any way accountable for the gambling activities of the others. The circumstances of the case indicate only that the defendant was present and was an observer. Even the majority acknowledges that the evidence does not establish that the defendant actually participated in the gambling.
Assuming, arguendo, that the State properly applied accountability theory here, it failed to prove the defendant guilty beyond a reasonable doubt. In affirming the defendant’s conviction, the majority relies on three pieces of evidence: the defendant was observed standing by the gambling table for several minutes; he moved several feet away from the table when the police arrived; and he had a substantial amount of money on his person when he was arrested. Courts have. repeatedly held that mere presence at the scene of a crime and knowledge that a crime is being committed are insufficient to establish guilt. (See, e.g., People v. Deatherage (1984), 122 Ill. App. 3d 620, 624 .) Where the evidence is entirely circumstantial, as it is here, guilt must be established to exclude every reasonable hypothesis of innocence. ( 122 Ill. App. 3d at 624 .) In the case at bar, the evidence established no more than that the defendant was present and that he was aware of the crime. That the defendant had money on his person proves nothing. There was no evidence that the defendant had an active role in the commission of the crime or that he attempted to aid or encourage the participants in any way.
The majority views the defendant’s move away from the table as evidence of his attempted flight and knowledge of guilt. I disagree. The defendant’s movement away from the table can also reasonably be viewed as the defendant’s knowledge of the others’ guilt rather than his own, and as a logical response to the rush of incoming police officers. None of the defendant’s conduct is inconsistent with that of an innocent person.
The evidence fails to establish the defendant’s guilt beyond a reasonable doubt, either directly or on an accountability theory. I would reversed the conviction. Accordingly, I dissent..