¶1dissenting:
¶2In reversing the trial court’s determination that the defendant violated his probation, the majority has ignored the direct evidence presented. Moreover, it has, in effect, retried the case on the basis of the typed record. Thereby, it has wrested from the trial court its duty and power to resolve conflicts in the evidence presented. Accordingly, I dissent.
¶3Initially, it is important to note that the burden of proof in a probation revocation proceeding is different than in a criminal trial. The State in a revocation proceeding need only prove that the defendant violated the terms of his probation by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4.) The trial court, sitting as the trier of fact, is entitled to weigh the evidence and assess the witnesses’ credibility, and its determination will not be set aside unless it is manifestly erroneous. (People v. Martin (1979), 76 Ill. App. 3d 765.) The evidence presented at the hearing below was more than sufficient to support the court’s revocation of the defendant’s probation.
¶4The victim testified that while he and the defendant struggled in the backseat of the car, he heard a click he assumed was a knife, and the defendant cut his wrist. He stated that blood stains remained in the back of the car by the door and on the floor, and that when his sister drove him to the hospital, his blood also dripped on the front floor of the car. The victim’s sister, Vickie, testified that she heard her brother yell that he had been cut after he struggled with the defendant, and she stated that the defendant usually carried a knife. The victim's other sister, Debbie, confirmed the victim’s testimony that while he and the defendant struggled, a clicking noise could be heard, and blood splashed on her. She further testified that she saw the defendant with a knife. The defendant and a defense witness testified that the victim fell in an area containing broken glass after he exited the car, but the remaining witnesses denied that the victim fell to the ground.
¶5In finding that the State proved its charge by the preponderance of the evidence, the trial judge noted the contradictions in the testimony and he pointed out that he found it strange that in over 14 years on the bench, this defendant was the first who did not once look at him during his testimony. The judge then considered the nature and location of the victim’s wound and unrefuted testimony that there was blood in the backseat area of the car, which could not be explained if the victim was cut when he fell after getting out of the car. Finally, the court stated it found the testimony of the victim and Vickie more believable than the defendant’s testimony in light of the physical evidence and in light of the manner of the defendant while on the witness stand.
¶6The trial court did not err when it commented on the nature of the victim’s wound and noted that because it was a fairly straight cut, it did not appear to be the type of wound which would result from contact with a jagged piece of glass from a broken bottle. In making these comments, the court was doing nothing more than considering the evidence in view of common knowledge and the ordinary experiences and observations of life. It is well established that triers of fact are accorded the right to consider evidence in light of their intelligence, common knowledge, and the experience of mankind. (People v. Schaffner (1943), 382 Ill. 266.) Accordingly, the trial court’s comments in this case were proper.
¶7Even if the trial court erred in considering whether the victim’s wound could have been inflicted by a piece of glass, any error was harmless. Contrary to the majority’s statement, the court did not spend a significant part of its analysis on the distinction between glass and knife cuts. Rather, the comments on the type of cut were brief and were intertwined with the court’s observations regarding the location of the wound, 2xk to 3 inches up from the wrist and not on the palm, which suggested it was not sustained during a fall to the ground. Furthermore, the court’s comments demonstrate a thorough analysis of the remaining evidence, including the defendant’s inability to explain the blood in the backseat, and a thoughtful determination of the credibility of the witnesses. Considering the court’s assessment of the witnesses’ credibility and the weight of the evidence presented, it cannot be said that the trial court’s determination was manifestly erroneous.
¶8For the foregoing reasons, I would affirm the judgment of the trial court.