APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Frank Roman, the defendant, was convicted of armed violence, aggravated battery and reckless conduct following a jury trial. He was acquitted of the offense of attempt murder. Judgment was entered only on the armed violence conviction, and defendant was sentenced to six years in prison. He appeals, contending that the armed violence statute is unconstitutional, that the jury's verdicts were legally inconsistent and that the prosecutor's closing argument denied him a fair trial.
Defendant claims the statute is unconstitutional on the basis that it is vague and overbroad, violative of due process and equal protection, and constitutes cruel and unusual punishment in that it could allow double enhancement of the penalty for an offense through the use of the same factor, the presence of a weapon. Defendant made no legal argument in support of these claims other than to cite the circuit court decision in People v. Haron, which found the statute unconstitutional on several grounds.
The Illinois Supreme Court recently rendered its decision in People v. Haron (1981), 85 Ill.2d 261. There, defendants limited their attack upon the armed violence statute to essentially three contentions. Their first contention was that the statute is vague and overbroad in failing to state whether the weapon must be used in the commission of the underlying felony. The court rejected that argument, finding that the statute clearly did not require use of a weapon or any connection between the presence of the weapon and commission of the predicate felony.
Defendants' second argument concerned the possible double enhancement of a misdemeanor into the Class X felony of armed violence based on the presence of a weapon. The court determined that the legislature did not intend to allow double enhancement and construed the armed violence provisions so as to preclude their application to acts which, if committed while unarmed, would be misdemeanors.
Defendants' final contention was that a mandatory six-year minimum sentence, as applied to a nonviolent deliverer of cannabis, is not reasonably related to the evil sought to be remedied and thus violates due process. The court found this question was prematurely raised because defendants had not been convicted or sentenced.
Here, defendant was charged with two counts of aggravated battery (the predicate felony for the armed violence count), in that in committing a battery he caused great bodily harm to the victim (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)) and that he committed a battery while armed with a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)). The jury was instructed to find defendant guilty of aggravated battery if it found either that he was armed with a deadly weapon or caused great bodily harm. Thus, the indictment and jury instructions allowed for the possibility of the double enhancement forbidden by Haron. However, the record indicates that the victim suffered great bodily harm beyond a reasonable doubt so that defendant was not prejudiced.
Defendant is not in a position to raise the due process attack on the sentencing provisions left undecided in Haron, because he was convicted of a violent felony, and the weapon which triggered the armed violence conviction was actually used in the crime. Whether the sentencing provisions for armed violence are unconstitutional as applied to cases where the underlying felony is nonviolent and the weapon has no connection to the crime is not involved in this case. See People v. Campbell (1974), 16 Ill. App.3d 851, 853; People v. Kline (1974), 16 Ill. App.3d 1017, 1022.
Thus we conclude that defendant was not aggrieved by the application of the armed-violence statute in this prosecution.
The offenses charged arose from an incident on November 5, 1978, at an apartment complex. The victim, Kenneth Page, testified that about 8 a.m. on November 5, defendant came to the apartment where Page was staying and complained about something Page had allegedly said to defendant's children the day before. The incident ended with Page slamming the door on defendant. Page subsequently saw the defendant looking into Page's girlfriend's van in the parking lot; an argument ensued with some pushing; defendant then drove his pickup truck ahead while Page had his hand on the hood in front of the truck. Page called the police and was told to come down to the station and file a complaint.
Page testified that when he went out towards the parking lot to go to the station he saw defendant crouching by a building corner about 50 feet away, and observed a gun in his hand. Page slowed down and defendant began walking directly towards him pointing the gun at Page's head. Defendant approached to about 3 feet away and said to him "All right, you son-of-a-bitch____, I saw you coming, and you are going to get it." At this point he said the gun was only a foot from his head and he pushed it in the air by hitting defendant's wrist. A shot was fired. Page then testified that defendant took a step or so back while Page was still shoving him and trying to stay close when another shot went off wounding Page in the hand. The victim said that as he was falling to the ground he was shot again in the back.
There was disputed evidence from other witnesses as to whether Page was shot while on the ground.
Defendant testified that after he had been confronted and physically attacked by Page he went into his apartment and placed a gun in his pocket for self-protection; he was again confronted by Page outside, the latter stating "I finally caught up with you"; defendant pointed the gun at Page in an effort to convince him not to come closer and began backing away while Page threatened to take the gun away and attack him. Defendant said that as he was backing away he bumped into a bench and turned around and at this point Page grabbed the gun; that during the struggle the weapon accidentally discharged three times; and that he did not intend to either kill Page or to fire at him.
Defendant argues that the verdicts finding him guilty of both reckless conduct and aggravated battery arising from these facts are legally inconsistent for the reason that a person cannot logically be said to act ...