APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant, Ricky Howard, was convicted of the offenses of unlawful use of weapons, reckless conduct, attempted murder, and armed violence. He was sentenced to 30 years for each of the offenses of attempted murder and armed violence, sentences to run concurrently. Defendant appeals from the convictions and sentences.
The convictions arose from a shooting that occurred at the home of Ralph Ritter on May 7, 1978, in Tilton, Illinois. The following uncontroverted evidence was adduced at trial.
During the late afternoon and early evening of May 7, 1978, Ritter received four phone calls from defendant. Each time defendant requested that Ritter meet him at a local tavern; Ritter refused. At the time, Ritter had known defendant for approximately 10 years. Later that evening a bronze-colored Hornet automobile, with two persons, parked on the roadway in front of the Ritter home; the horn was sounded; and two shots were fired through the kitchen window. One bullet was found lodged in the cupboard above the refrigerator. Charles Gilroy was the driver of the car; defendant was the passenger and the person who fired the shots. It still was light when the shooting occurred.
In response to her husband's request, Mrs. Ritter took their children into the bedroom and called the police. The shots were fired while she was on the phone. When the police arrived, Ritter gave them a description of the auto. A 1976 Hornet, occupied by defendant and Gilroy, was stopped sometime later. A .22-caliber automatic rifle and two spent cartridges were found in the car. A firearms examiner who testified at defendant's trial was of the opinion that the cartridge casings had been fired from the rifle, but he was unable to determine if the slug found in the kitchen cabinet had been fired from the rifle which was found in the car. The rifle belonged to Gilroy.
Gilroy was offered immunity by the State in return for his testimony at defendant's trial. He testified that on May 7, 1978, at approximately 7 p.m., he met defendant at a trailer; defendant was in possession of Gilroy's rifle, the rifle that had been found by the police after the shooting. Defendant stated that Ritter, in Tilton, owed him $100 and that he was going to get it back. Defendant told Gilroy that he wanted to talk with Ritter and asked Gilroy to drive him there. They arrived at approximately 8:30 p.m.; it was twilight. Defendant told Gilroy to honk the horn; defendant then removed the rifle from the back of the car and held it; after Gilroy honked the horn again, defendant fired two shots at the house.
Cindy Bailey, Crystal Bailey, and Marcy Middendorf, who all had been at the trailer with defendant on May 7, testified that defendant left with Charles Gilroy; defendant took a gun with him. Cindy Bailey testified that defendant said that he was "going to Tilton to scare a guy" who owed him money. Marcy Middendorf testified that defendant said that he "was going to go talk to some guy," while Crystal Bailey stated that they all had tried to persuade defendant not to take the gun with him.
Aside from the uncontroverted facts there is an area of conflict that is relevant to defendant's appeal. Gilroy testified that after he honked the horn, he saw a head in what he thought to be the living room window, not the kitchen. Defendant then fired the shots. Ritter testified, however, that he was looking from the illuminated kitchen window when defendant aimed the gun and fired.
Defendant first contends that he was not proved guilty of attempted murder beyond a reasonable doubt. Defendant submits that the facts only support the inference that he acted with the intent to scare Ralph Ritter, not with the intent to kill him. Defendant's submission relies primarily on Gilroy's testimony that he saw a head in the living room at the time that the shots were fired. Therefore, defendant argues, when he fired at the kitchen window he could not have been aiming at Ritter. The State contends, on the other hand, that the evidence supports the conclusion that defendant deliberately aimed and fired at Ritter.
1 A person commits attempted murder when, with intent to kill, he does any act which constitutes a substantial step toward the commission of murder (Ill. Rev. Stat. 1977, ch. 38, par. 8-4; People v. Harris (1978), 72 Ill.2d 16, 377 N.E.2d 28). Proof of a defendant's specific intent to kill is a requisite element of attempted murder. (People v. Trinkle (1976), 40 Ill. App.3d 730, 353 N.E.2d 18, aff'd (1977), 68 Ill.2d 198, 369 N.E.2d 888.) Since such intent rarely can be based on direct evidence, it may be established from surrounding circumstances, such as the character of the assault and the use of a deadly weapon. People v. Koshiol (1970), 45 Ill.2d 573, 262 N.E.2d 446, cert. denied (1971), 401 U.S. 978, 28 L.Ed.2d 329, 91 S.Ct. 1209; People v. Jones (1977), 55 Ill. App.3d 446, 370 N.E.2d 1142.
While the question of defendant's intent is one for the jury as the trier of fact (Jones), the conviction will be reversed when the requisite intent is not proved beyond a reasonable doubt. People v. Henry (1971), 3 Ill. App.3d 235, 278 N.E.2d 547.
2 In view of all the circumstances here, especially those that transpired outside the Ritter house, we conclude that the jury reasonably could infer that defendant fired the gun with the intent to kill complainant. Defendant transported a gun to the house; requested that Gilroy honk the horn, apparently to get Ritter's attention; took aim at the lighted window where complainant, according to his testimony, was standing; and fired two shots through the window.
Although Ritter's testimony that he was in the kitchen when the shots were fired conflicts with that of Gilroy that he saw a head in the front room before the shots were fired, the conflicting evidence is apparent from the record, and its resolution was left properly to the trier of fact. the jury apparently chose to believe complainant. Moreover, the nature of the conflict does not give rise to a reasonable doubt of defendant's guilt.
This case does not have a circumstance which, in our opinion, is comparable to those circumstances that have created a reasonable doubt regarding a defendant's specific intent to kill. For example, in Trinkle, defendant was convicted of attempted murder for shooting a gun at a building that housed a tavern. Both the appellate court and the supreme court observed that there was no evidence showing that defendant knew that the victim was standing behind the door (68 Ill.2d 198, 204, 369 N.E.2d 888, 891; 40 Ill. App.3d 730, 734, 353 N.E.2d 18, 22). In Henry, defendant was convicted of attempted murder for firing at Chicago police officers during a race riot. The police were driving an unmarked car and the evidence showed that the night was dark. The officer did not see the gun, but saw flashes as it was discharged, and testified that he believed that the shots were fired in the direction of the car. He conceded, however, that the gun could have been fired into the air, which is what defendant claimed at the time of his arrest. In reversing the conviction, the court noted that defendant could have apprehended danger on that night and that as an ex-Marine with an expert rating in marksmanship, it was unlikely that defendant could have missed a target as large as a car. See also People v. Burdine (1978), 57 Ill. App.3d 677, 373 N.E.2d 694, and cases cited therein at 57 Ill. App.3d 677, 683-84, 373 N.E.2d 694, 700-01.
3 Defendant was convicted and sentenced for armed violence and attempted murder. Since both convictions are founded upon the same act, firing shots through a window of complainant's home, the State concedes that one of the convictions must be vacated. People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1; see People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273.
In King, the supreme court concluded that a person cannot be convicted of a greater offense and a lesser included offense when multiple offenses arise out of the same series of closely related acts. (66 Ill.2d 551, 566, 363 N.E.2d 838, 844.) Section 2-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 2-9), which defines "included offense," has been interpreted to mean that an offense is a lesser included offense only if the greater offense charged contains all of the ...