Appeal from the Circuit Court of Cook County; the Hon. Howard
M. Miller, Judge, presiding.
PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant Thomas Knieling was charged by indictment with attempted murder, aggravated battery causing permanent disability, aggravated battery causing permanent disfigurement, aggravated battery using a deadly weapon, aggravated battery causing great bodily harm, and armed violence based on the predicate felony of aggravated battery using a deadly weapon. All the counts of the indictment were based on the May 20, 1980, shooting of the complainant. After a jury trial, defendant was convicted of aggravated battery causing great bodily harm, aggravated battery using a deadly weapon, and armed violence. Judgment was entered on the armed violence conviction only, and defendant received a sentence of 10 years. On appeal, he contends that: (1) the conviction for armed violence must be reversed pursuant to People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627; (2) he was not proved guilty beyond a reasonable doubt because the State's evidence was circumstantial and was not inconsistent with a reasonable hypothesis of innocence; (3) the trial court erred in limiting the testimony of one of defendant's expert witnesses; (4) the trial court erred in failing to instruct the jury on the lesser included offense of reckless conduct on its motion; and (5) the trial court erred in denying defendant's motion for a new trial which was based on affidavits which purport to reveal new evidence.
The evidence presented by the State at trial consisted of the testimony of the complainant and the two police officers who arrived at the scene shortly after complainant was shot. The complainant testified that she and defendant lived together in an apartment in Justice, Illinois. On May 20, 1980, she came home from work at some time after 4 p.m. and began to cook dinner. Defendant was already home from work when she arrived. While she was cooking, she and defendant began to argue about their respective mothers. Blows were exchanged, and defendant ran from the kitchen towards the bedroom. The complainant followed him with a pot of rice in her hand. Defendant reached the bedroom first, said "I've got something for you," and came out of the bedroom holding a .357 Magnum revolver in his right hand while gripping his right wrist with his left hand. Defendant pointed the revolver at the complainant and she turned to flee. She was completely turned around when she was shot in the back. She fell forward on the floor. Defendant knelt down beside her and told her the shooting was an accident. He then made a telephone call for help. The complainant's legs are paralyzed as a result of the injuries she received in the shooting.
Officer Slepicka of the Justice police department arrived at the apartment in response to a radio call. He looked through a window and observed the complainant lying on the floor and defendant lying on top of her. He entered the apartment and ordered defendant to get away from the complainant and to lie on the floor. Defendant told the officer that the shooting was an accident and that the gun was under the couch. The officer recovered a .357 Magnum from under the couch.
Defendant testified that he was employed as a Cook County Hospital policeman and as a security guard at a bank and that he carried a .357 Magnum while working. On May 20, 1980, he left work at 3:30 p.m. and purchased a quart of beer on the way home. When he arrived home, he poured a glass of beer and took it into the bedroom, where he changed clothes and put his uniform, gun, and holster across the foot of the bed. He woke up when he heard the complainant in the front of the apartment. He got up and went to the kitchen, where the complainant was cooking dinner. The complainant looked at him and asked him what was wrong with his eyes. He told her that he had just woke up. She asked if he had been drinking and he began walking away. The complainant grabbed his arm and he knocked her hand away. He walked to the bedroom and began to put away his uniform. As he picked up his gun, he looked up and saw the complainant in the bedroom doorway. She had a pot in her hand and a startled expression on her face. She turned away and began to run. He started to walk toward the bedroom door to see where she was going. He tripped over a plastic bag filled with laundry that was lying on the floor. He fell forward, striking his arm on the doorway, and the gun went off. He went to where the complainant was lying, told her it was an accident, and called for an ambulance and for the police. When he hung up the phone, Candice Thomas, the upstairs neighbor, entered the apartment. The police arrived shortly thereafter. Defendant stated that the shooting was entirely accidental, and that he had not struck the complainant or told her that he "had something for her."
Candice Thomas testified that she was in her apartment on May 20, 1980, when she heard loud noises coming from the apartment below, followed by what sounded like a shot. She sent her daughter to the downstairs apartment to check on the complainant's children and then she went downstairs herself. She entered the apartment and observed complainant lying on the floor. Thomas obtained the complainant's mother's phone number and called her to inform her that there had been an accident. After she made the call, the police and paramedics arrived. At some point the police asked Thomas how old the complainant was, and she went to the bedroom to look for the complainant's identification. Thomas testified that there was a plastic bag containing laundry on the bedroom floor near the doorway, and that she pushed the bag out of the way as she entered the room.
Officer Slepicka was called as a rebuttal witness. he testified that Thomas stood near the entrance to the apartment during the time that he was in the apartment, that he did not see her go into the bedroom and that he saw no plastic bag on the floor when he went into the bedroom. Officer Weinberg, who arrived on the scene shortly after Officer Slepicka, testified that he saw no laundry bag in the bedroom, that he did not see Thomas go into the bedroom, and that she left the apartment before he secured the scene of the shooting.
Dr. Enrick Palacio, a radiologist, testified that the two X rays that were received into evidence indicated that the entry wound was on the right side of the complainant's lower back and that the bullet traveled in an upward trajectory in the complainant's body, coming to rest to the left of the spinal column. The defense also attempted to present the testimony of Professor Joseph D. Nicol as to the trajectory of the bullet when it struck the complainant. Professor Nicol is a forensic scientist specializing in criminalistics. The State's objection to the opinion testimony of Professor Nicol was sustained and he was withdrawn as a witness.
Defendant was convicted of aggravated battery using a deadly weapon, aggravated battery causing great bodily harm, and armed violence. Judgment was entered on the armed violence conviction, and this appeal followed.
• 1 Defendant's first contention on appeal is that his conviction for armed violence based on the predicate felony of aggravated battery using a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(1)) must be reversed because the conviction constitutes a "double enhancement" of the misdemeanor of battery because of the use of a deadly weapon in the commission of the offense, and therefore the conviction is impermissible under our supreme court's holding in People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627.
In People v. Van Winkle (1981), 88 Ill.2d 220, 430 N.E.2d 987, the supreme court, expanding on the language of Haron, expressly held that aggravated battery using a deadly weapon can not serve as the predicate felony for a charge of armed violence. In the instant case, as in Van Winkle, the defendant was specifically charged with armed violence based on aggravated battery using a deadly weapon. Although the conviction for armed violence could have been presumed to have been based on the conviction for aggravated battery causing great bodily harm had the indictment been silent as to which count of aggravated battery the charge of armed violence was predicated on (see People v. Ross (1981), 100 Ill. App.3d 1033, 1037, 427 N.E.2d 955), no such presumption is available where, as here, the indictment specifies aggravated battery using a deadly weapon as the predicate felony. See People v. Post (1982), 109 Ill. App.3d 482, 486-87.
The State's contention that defendant has waived this issue by failing to raise it in the trial court is meritless. An indictment for armed violence based on aggravated battery using a deadly weapon does not charge an offense. An indictment which does not charge an offense may be challenged at any time and the issue is not waived by a failure to raise it in the trial court. (People v. Gresham (1982), 104 Ill. App.3d 81, 85, 432 N.E.2d 654.) Defendant's conviction for armed violence must be vacated.
• 2 Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt because the evidence of his intent to harm the complainant was circumstantial and therefore any reasonable hypothesis consistent with innocence must be adopted. The central issue in this case is defendant's intent. Intent is typically proved by circumstantial evidence. (See People v. Mikota (1971), 1 Ill. App.3d 114, 118, 273 N.E.2d 618.) Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence. (People v. Rhodes (1981), 85 Ill.2d 241, 249, 422 N.E.2d 605.) The complainant testified that as she approached the bedroom door she saw defendant pointing the revolver at her while standing with his left hand bracing his right. She then turned to run away and was shot in the back. The complainant's observation of defendant is circumstantial evidence of defendant's intent. The evidence that defendant was standing in a "combat" position while pointing the gun at the complainant is inconsistent with the theory that the shooting was accidental, and is inconsistent with any other reasonable hypothesis of innocence. We find that defendant was proven beyond a reasonable doubt.
• 3 Defendant's next assignment of error is that Professor Nicol should have been allowed to give opinion testimony as to the trajectory that the bullet was following when it struck complainant. The ...