APPEAL from the Circuit Court of Lake County; the Hon. JOHN
L. HUGHES, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
Defendant Alvin Varnell appeals from a conviction of aggravated battery and armed violence in the circuit court of Lake County following a jury trial. Defendant's conviction for armed violence was vacated and he was sentenced to one to three years on the aggravated battery. On appeal, defendant contends that the State failed to prove that he was guilty beyond a reasonable doubt in that the proof presented at trial (1) failed to establish an intent to commit aggravated battery, (2) failed to prove that the defendant was present at the scene of the crime, and (3) failed to establish that the cane gun was capable of firing bullets or that the defendant actually fired this cane gun. After a review of the entire record, we are of the opinion that these contentions are wholly without merit, and we affirm.
The above charges arise from a shooting incident in front of Fernando's Tap (hereinafter the tavern) in Waukegan, Illinois, which occurred late in the evening of March 27, 1975. At 11:30 p.m., two young black males entered the tavern. One of the youths carried a radio and the other a cane. They went among the patrons attempting to sell the radio; an argument ensued, and Rubin Naranjo and other patrons pushed the two young men out the front door and into the street. Outside Naranjo was then told by the other black youth he was holding, "Let me go before my friend shoots you." Naranjo then walked back into the tavern, where he heard two consecutive shots coming from the street.
Irma Morales, who had been baby-sitting for the Ayala family, came to the window of the apartment above the tavern at the request of David Ayala to observe the disturbance below. She saw a man in the street pointing something towards her window and then heard a shot. She then heard another shot, which entered her head. She was required to spend a month in a hospital and eight months in a nursing home. The victim remains partially paralyzed, but at the trial of this cause positively identified the defendant as the man who shot her.
David Ayala, who had been at a window above the tavern and had known the defendant for four years, made a positive photographic identification of the defendant as the one he had seen fire the shots from the street below and leave in a light blue Ford. The witness also made a photographic identification of Jerome Barnes as having been one of the individuals in the vicinity of the shooting.
Rubin Naranjo made a photographic identification of Tyrone Barnes as having been one of the two men who entered the bar. Tyrone Barnes' brother, Jerome Barnes, was the owner of a blue Ford Falcon in March of 1975.
Robert Evans testified that he saw the defendant and Tyrone Barnes walk into the tavern and come out a short time later, just prior to the incident. Fernando Ayala, the owner of the tavern and bartender that night, identified the defendant as the man with the cane in the bar. Chon Morales, a bartender at the tavern that night, also identified photographs of the defendant as one of the two men who were attempting to sell a radio in the tavern.
Defendant testified at trial that he played cards at another location until 10:30 p.m. on this evening and then came home and watched television with his three sisters.
Defendant argues first that the evidence presented by the State did not establish that the defendant had the proper mental state for aggravated battery and, thus, did not prove him guilty beyond a reasonable doubt. The defense contends that the evidence at trial did not prove that the defendant intentionally or knowingly fired the cane gun with the conscious objective of causing great bodily harm to Irma Morales or that he fired the cane gun with the knowledge that great bodily harm to Irma Morales was practically certain to occur because of his act. (Ill. Rev. Stat. 1975, ch. 38, pars. 4-4, 4-5.) The defendant, although not admitting his presence at the scene, contends that under the circumstances with which the defendant was confronted a crowd of people that had just evicted him from a public tavern the defendant at most meant only to fire into the air to protect himself and his friend from the crowd. Defendant's argument is without merit.
The aggravated battery statute provides that the above offense is committed when:
"(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery." (Emphasis added.) or
"(b) A person who, in committing a battery either:
(1) Uses a deadly weapon; * * *." Ill. Rev. Stat. 1975, ch. 38, pars. ...