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August 30, 1995


Appeal from the Circuit Court of Cook County. Honorable Ronald Banks, Judge Presiding.

The Honorable Justice Tully delivered the opinion of the court: Rizzi and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

After a jury trial, defendant, Chris Townsend, was convicted of aggravated battery in violation of section 12-4(b)(1) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(1) (West 1992)), attempted armed robbery in violation of sections 8-4 and 18-2 of the Criminal Code of 1961 (720 ILCS 5/8-4, 18-2 (West 1992)), armed violence in violation of section 33A-2 of the Criminal Code of 1961 (720 ILCS 5/33A-2 (West 1992)), and aggravated battery on a public way in violation of section 12-4(b)(8) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(8) (West 1992)). Defendant was sentenced to concurrent 14-year prison terms for the armed violence and attempted armed robbery counts, concurrent with 5-year prison terms on each of the aggravated battery convictions. It is from the judgment of conviction that defendant now appeals to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 603 (134 Ill. 2d R. 603).

For the reasons which follow, we affirm in part and reverse in part and remand with directions.

On the evening of March 8, 1992, Thomas Tynski was working as the assistant manager of the Walgreen Drug Store located at 333 Mannheim Road in Bellwood, Illinois, which closed at 9 p.m. Tynski and several other employees worked late that night after closing the store to prepare it for the next day's business. Tynski was the last employee to leave the store that night, departing at 11:50 p.m. Before going Tynski made sure that the safe, which contained about $10,000, was locked. The safe was located approximately 10 feet from the store's front door. In addition, Tynski set the store's burglar alarm, a motion detection system, to activate 30 seconds after being set off by any motion in the store. The system was directly linked to the Bellwoodpolice department and could only be shut off manually. After taking these security precautions, Tynski left the store and locked the doors.

There was light coming from the lights of the outside vestibule and from the lights inside the store front near the safe. Tynski walked towards his automobile which was parked about 75 feet from Walgreen's front entrance. As he walked, Tynski caught a glimpse of someone walking behind him. Tynski quickened his gait, but the man caught up with him about 15 feet from his car. The man put a gun in Tynski's back and said, "I've got a gun. Just keep walking to your car." Tynski was then ordered to, "Turn around. Go back to the store." During this time, Tynski had not seen his assailant's face.

When Tynski was about 25 feet from the store's front entrance, he spotted a second man jogging towards him from the alley located 50 feet to the right of the storefront. Tynski could see the second man's face and that he was wearing black gym shoes and an all white, hooded gym suit with four black letters across the chest. Tynski later identified this second man as defendant.

When the three men were about 5 feet from the front door, defendant came from behind Tynski and struck him with the butt of his handgun on the left side of Tynski's face. Tynski, at this point bleeding, fell to ground as he tried to pick up his broken glasses and keys. Defendant then attempted to kick Tynski while he was down, but Tynski managed to fend him off.

The first assailant told Tynski to open the door and go to the safe. After fumbling with his keys, Tynski opened the door and went to the safe followed by defendant while the first assailant stayed by the door. Tynski and defendant crouched down by safe whereupon Tynski could then see the four black letters on defendant's shirt read "ARMY". Tynski was also able at this point to get a clear view of defendant's face.

Tynski, afraid that defendant would kill him after opening the safe, feigned trying to open the safe and stalled for the 30 seconds needed to set off the alarm and alert the police. After 30 seconds lapsed a large horn began buzzing and a blue siren in the window went off. When the alarm sounded, both Tynski and defendant jumped back. Seeing that defendant was not holding his pistol, Tynski ran toward the liquor department. Defendant picked up his gun and aimed it at Tynski. Tynski ran and dove to the floor. A few seconds later, both assailants fled the store for the alley.

Tynski telephoned the police, who arrived at the scene in less than a minute. Tynski informed the police as to the events that had just transpired and gave a description of defendant.

As these events were unfolding, officer Robert Corner of the Memorial Park police department had just come off-duty and had pulled into the Amoco gas station cater-cornered from the store. Corner heard a radio dispatch that there was an armed robbery in-progress at the Walgreen Drug Store. Whereupon, Corner drove to the drug store, where he immediately spotted defendant emerging from behind a hair salon located next to the store riding a bicycle and wearing a white, hooded jogging suit with four letters across the front.

Corner went to look for a vehicle that may have been parked behind the building, when he heard defendant's description over the radio. Corner then heard a second description over the radio of the jogging suit being emblazoned with the word "ARMY". Immediately after Corner radioed that he had seen a man fitting this description riding a 10-speed bicycle northbound on Mannheim Road, two Bellwood ...

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