APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals a jury verdict convicting him of one count of aggravated battery, four counts of armed violence and five counts of reckless conduct. The numerous issues raised on appeal necessitate a thorough recitation of the facts.
Defendant Randy Gross, a 20-year-old janitor, finished work on May 17, 1975, about 3:30 p.m. After a stop at home, he went first to his mother's house, where he consumed three beers, and then went to Tony Hutchison's house, where he also drank. James Algee and defendant went to Algee's mother's house about 6 p.m. There, defendant consumed more hard liquor. Defendant Gross went to Algee's house around 9 or 9:15 p.m. At Algee's house, defendant drank tequila and wine. At 10 p.m., defendant drove Algee to a liquor store. Algee did not notice anything unusual or erratic about defendant's driving.
During a drinking contest, defendant tried to get Earl Gray to join in, and an argument started between them. Later there was another disturbance during which defendant pushed Algee. Algee responded by hitting defendant in the mouth or jaw. Defendant fell, bleeding and unconscious, and was carried to the kitchen. After being in the kitchen a couple of minutes, defendant opened his eyes and ran out the door.
A short time later, defendant's wife called James Algee's house and said that her husband was coming over with a shotgun. Algee went outside and saw defendant drive up. Defendant got out of the car and started shooting. When he heard shots, Hutchison went to the door. He told the defendant to put the gun down; defendant told him to get back and then fired a shot, hitting Hutchison in the hand. At the time the shooting started, James Algee was outside the house while Tony Hutchison, Vicki Hutchison, Carla Gray, Earl Gray, Germain Gray, and Barnett Algee were inside. The shooting lasted three or four minutes and then defendant drove off.
A deputy sheriff found defendant unconscious in his own home. Defendant was covered with blood and was sitting in a large chair, a loaded gun across his lap. A 12-gauge shotgun was recovered from the trunk of defendant's car. Defendant was taken to a hospital where he told the deputy that he was forced by Tony Hutchison to drive to a home and when he got out of the car, someone from the house ran out and shot him in the right arm after which defendant crawled to his trunk, removed his shotgun and fired one shot at the house. He further told the officer that somebody from the house ran out and hit him with a sledge hammer. Defendant stated the next thing he recalled was waking up in the hospital.
Defendant testified in his own behalf that he began to feel the effects of the liquor at Tony Hutchison's house and remembers nothing after that except sitting at Algee's house. When defendant awoke the next day, he testified he had a hangover and was physically ill two or three times. A psychiatrist testified that, at the time of the incident, defendant suffered from acute alcohol intoxication and an acute brain syndrome caused by the concussion and that defendant, in his opinion, was incapable of acting knowingly and intentionally. A second psychiatrist testified that defendant had the ability to form the intent to engage in the alleged activities and that his behavior was not automatic. After the jury verdict, defendant was sentenced to concurrent terms of 1 to 3 years for the aggravated battery conviction and the four convictions for armed violence, and 364 days for the five counts of reckless conduct. All sentences were to be served concurrently.
Section 12-2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12-2(a)(1)) provides that a person commits an aggravated assault when, in committing an assault, he uses a deadly weapon. Section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 33A-2) provides that a person commits armed violence when, while armed with a dangerous weapon, he performs any act prohibited by, inter alia, section 12-2. Defendant here was convicted of four counts of armed violence in that he performed an act prohibited by section 12-2, namely an aggravated assault. Defendant contends that he was denied due process because an identical element, a dangerous weapon, was used to charge a more serious offense, i.e., armed violence. Defendant, however, cites no authority for this position nor does he explain how he was denied due process.
• 1, 2 In People v. McCollough (1974), 57 Ill.2d 440, 313 N.E.2d 462, appeal dismissed (1974), 419 U.S. 1042, 42 L.Ed.2d 637, 95 S.Ct. 614, the Illinois Supreme Court held that where criminal conduct is prohibited by two different statutes, which provide for different penalties, there is no denial of equal protection or due process in the prosecution of defendant under the statute which provides for the greater penalty. In that case, the same conduct constituted the offenses of involuntary manslaughter and reckless homicide. McCollough controls. There is no due process violation. Other cases have specifically upheld the armed violence statute against equal protection challenge. People v. Hollister (1976), 39 Ill. App.3d 514, 350 N.E.2d 373; People v. Graham (1975), 25 Ill. App.3d 853, 323 N.E.2d 441; People v. Anthony (1976), 38 Ill. App.3d 190, 347 N.E.2d 179.
• 3 Defendant asserts that the armed violence statute is unconstitutionally vague because the possible sentence is not apparent from either the aggravated assault or armed violence statute. Defendant's contention is unmeritorious since the penalties to which defendant is subject are clearly set forth in the Unified Code of Corrections. Because of our earlier holdings herein, defendant's argument that he was denied a fair trial on the remaining charges due to the unconstitutionality of the armed violence statute and that, at least, resentencing should occur due to the same statute's unconstitutionality, need not be discussed.
Defendant asserts that the armed violence statute should be interpreted not to apply to aggravated assault where the aggravating element is the use of a deadly weapon. Prior to 1967, an assault committed while using a deadly weapon was a misdemeanor. (Ill. Rev. Stat. 1961, ch. 38, par. 12-2.) When the armed violence statute (Ill. Rev. Stat. 1975, ch. 38, par. 33A-2) was added to the Code in 1967, paragraph (a)(1) was deleted from section 12-2 of the aggravated assault provision. Subsequent to this amendment, an assault committed while using a deadly weapon against a person under circumstances outside section 12-2 could only be prosecuted as a simple assault. By a later amendment to the Criminal Code effective August 3, 1967, the General Assembly reinserted paragraph (a)(1) into section 12-2. This, defendant says, shows the obvious legislative intent to make an assault committed under the circumstances within section 12-2(a)(2) through section 12-2(a)(10) an aggravated assault. Thus, defendant concludes that the scope of the armed violence statute must be found to cover only those violations of subparagraphs (a)(2) through (a)(10), and not section 12-2(a)(1).
• 4 Defendant's argument was thoroughly considered by the appellate court, third district, in Graham. The court concluded that "the legislative intent obviously was that section 12-2(a)(1) when reinserted was intended to be subject to incorporation by reference in the armed-violence statute provisions, particularly when so quickly reinserted. There was an obvious intent that the penalty for any aggravated assault with a deadly weapon would be enhanced and possibly punished under the armed-violence provision." (25 Ill. App.3d 853, 859, 323 N.E.2d 441, 445.) We approve and adopt the rationale of Graham.
• 5 Defendant states that to prove him guilty of armed violence, it had to be proven that he placed the victim in reasonable apprehension of receiving bodily harm, that he used a dangerous weapon, and that he used a deadly weapon. Defendant asserts that because the evidence showed that only one gun was used, one of the elements was not proven. This argument has no merit. The armed violence statute is intended to include assaults committed with a deadly weapon. The State need not produce two guns.
• 6 Defendant also argues that he was not convicted of aggravated battery beyond a reasonable doubt. He says that the evidence does not show that he acted intentionally or knowingly because, before hitting him with a shot, he stated to Tony Hutchison, "* * * I am not trying to hurt you * * *." While defendant's statement indicates that he may not have had the intent to bodily harm Hutchison, the evidence clearly shows that the defendant was aware that if he fired in the direction of the victim, there was a substantial probability that bodily harm would result. James Algee testified that after yelling at Hutchison, defendant ...