APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MARY MAXWELL THOMAS, JUDGE PRESIDING.
Released for Publication August 25, 1994.
The opinion of the court was delivered by: Rizzi
JUSTICE RIZZI delivered the opinion of the court:
Defendant, Rodney Roberts, was found guilty of aggravated battery with a firearm (Ill. Rev. Stat. 1991 ch. 38, par. 12-4.2). He was sentenced to six and one-half years in the Illinois Department of Corrections. We reverse and remand.
The issues for review by this court are (1) whether the trial court erred when it refused to instruct the jury on the lesser-included offense of reckless conduct; (2) whether the aggravated battery with a firearm statute is unconstitutional as violative of the guarantees of due process and proportionate penalties; (3) whether the Judge erred by failing to apprise defense counsel of two questions submitted by the jury and communicating with the jury during deliberations; (4) whether the Judge erred in refusing to answer the jurors' legal questions during deliberations; (5) whether the jury instructions on aggravated battery with a firearm were inadequate; and (6) whether the prosecutor engaged in an improper closing argument.
The following facts were adduced at trial. Anthony Anderson, the complainant, had previously lived with Margaret Wilson at 2242 South Princeton in apartment 501, in Chicago, Illinois, and was the father of her child, Abria Anderson. On April 21, 1991, Anderson visited the home of Kathleen Ervin around 3 p.m. Ervin's home was located at 2242 South Princeton in apartment 711. Around 7 p.m., Wilson, her daughter Abria and defendant, who was her current boyfriend, all arrived at apartment 711. As of April 21, Anderson was no longer living with Wilson. When Anderson saw Abria, he called her and she started walking towards him. Wilson responded by grabbing Abria and told Anthony that he could not see her. Defendant then told Anthony that he "had nothing coming with his daughter." Anthony replied by telling defendant that he had nothing against him being with Wilson, he just wanted to see his daughter. Anthony and defendant exchanged more words and Wilson and Abria left the apartment. As Wilson walked down the hall, Anderson pursued her.
Anderson returned to Ervin's apartment five or ten minutes later and asked to see defendant. Defendant was called to the door to meet Anderson. When defendant arrived at the door, he and Anderson began to curse at each other. Anderson told defendant that he wanted nothing to do with Wilson, Abria and himself. Anderson testified that defendant then pulled a gun out of his jacket pocket and pointed it at Anderson's head. Anderson further testified that he slapped defendant's hand away whereupon he heard a gunshot. Two more shots were fired and Anderson sustained a gunshot wound to his left thigh. Defendant was arrested and charged with attempt murder and aggravated battery with a firearm. Anderson later testified basically that the above described fact scenario occurred.
Defendant testified in his own behalf. Defendant maintained that when he and Anderson were arguing at the door, his wallet and his gun were hanging out of his jacket pocket due to the fact that the zipper was loose. Defendant further testified that when he and Anderson noticed the gun, they both reached for it, Anderson got a hold of it, defendant grabbed it back and the two of them struggled over the gun. The gun discharged three times during the struggle. Defendant denied ever having pointed the gun at Anderson's head.
After the close of the evidence, the jury acquitted defendant of attempt murder but convicted him of aggravated battery with a firearm. Defendant was sentenced to six and one-half years in the Illinois Department of Corrections followed by three years mandatory supervised release. Defendant now appeals.
First, defendant contends that the trial court's refusal to instruct the jury that reckless conduct was a lesser-included offense of aggravated battery with a firearm.
The Criminal Code of 1961 defines "reckless conduct" in the following manner:
Reckless Conduct. (a) A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if her performs recklessly the acts which cause the harm of endanger safety, whether they otherwise are lawful or unlawful. Ill. Rev. Stat. 1991, ch. 38, par. 12-5(a).
The offense of reckless conduct may be a lesser-included offense of aggravated battery. People v. Solis (1991), 216 Ill. App. 3d 11, 18, 576 N.E.2d 120, 124, 159 Ill. Dec. 451; People v. Perry (1974), 19 Ill. App. 3d 254, 257, 311 N.E.2d 341, 344. A lesser-included offense is one which "is established by the same or less than all of the facts or a less culpable mental state or both, than that which is required to establish the commission of the offense charged." Ill. Rev. Stat. 1991, ch. 38, par. 2-9. It is well settled that where there is even slight evidence in the record which, if believed by the jury, would reduce a crime to a lesser-included offense, an instruction defining the lesser included offense should be given. People v. Upton (1992), 230 Ill. App. 3d 365, 374, 595 N.E.2d 56, 62, 171 Ill. Dec. 928; Perry, 19 Ill. App. 3d at 257-58, 311 N.E.2d ...