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August 19, 1996


Appeal from the Circuit Court of Lake County. No. 93--CF--2446. Honorable John R. Goshgarian, Judge, Presiding.

Released for Publication September 25, 1996.

The Honorable Justice Doyle delivered the opinion of the court. Colwell, J., concurs. Justice Rathje, dissenting:

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Defendant, David Fornear, was charged in a December 1, 1993, indictment with aggravated battery with a firearm (720 ILCS 5/12--4.2 (West 1992)) and aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1992)), in that he discharged a pistol and caused injury to Michelle Wilkinson (the victim). On February 2, 1994, a second indictment was filed, which added charges of unlawful use of a weapon (UUW) (720 ILCS 5/24--1(a)(7) (West 1992)) and unlawful use of weapon by a felon (UUWF) (720 ILCS 5/24--1.1 (West 1992)). The UUWF charge was severed for trial. Defendant was tried on the remaining counts before a jury and was convicted of aggravated discharge of a firearm, UUW, and, pursuant to instructions requested by the defense, reckless conduct. He was acquitted of the aggravated battery with a firearm charge. Defendant was sentenced to serve concurrent terms of imprisonment of 13 years for aggravated discharge of a firearm and 5 years for UUW. No sentence was imposed for reckless conduct.

On appeal, defendant raises three issues, namely, (1) whether the jury's verdicts of guilty of aggravated discharge of a firearm and reckless conduct were legally inconsistent; (2) whether the charge of UUW should have been severed for trial; and (3) whether the aggravated discharge of a firearm statute creates an unconstitutionally disproportionate penalty. The record on appeal reveals the following evidence.

A jury trial began on February 28, 1994. Blake Wilkinson, the victim's nine-year-old son, testified that he and his younger sister lived with his mother and defendant in November 1993. Blake identified the State's exhibits Nos. 18 and 19 as photographs of a shotgun belonging to defendant.

David Walz, an Island Lake police officer, testified that about midnight on November 15, 1993, he monitored an emergency call to the Wauconda fire department, which requested that an ambulance be sent to a house on Route 176 in Wauconda Township. When Officer Walz arrived, he saw a black pickup truck in the driveway with its hazard lights flashing. He saw a man, later identified as defendant, walking toward the ambulance, waving his arms. Officer Walz stated that he intercepted defendant, who was yelling to the ambulance crew to get into the house to help his fiancee, who had accidentally been shot. Officer Walz asked defendant where the gun was, and defendant told him that the gun was in the bedroom where the victim was located. Officer Walz placed the defendant in handcuffs.

Officer Walz testified that, at this point, Deputy Byrne of the Lake County sheriff's department arrived. Officer Walz bent defendant over Deputy Byrne's squad car to search him for weapons and found none. He then locked defendant in the backseat of the squad car.

Mark Abernathy, a Wauconda fire fighter and paramedic, testified that he was in charge of the ambulance crew that answered the emergency call. The crew encountered a woman in the bedroom of the house who was lying on the bed with her legs crossed "Indian style." She was in distress. In answer to their questions, the woman told them that she had been shot twice. The paramedics found only a wound in her shoulder.

Dr. Stephen Rivard, an emergency room doctor at Good Shepherd Hospital, treated the victim on November 15 for her gunshot wound. His examination disclosed there was a puncture wound at the base of the victim's neck and that she was paralyzed. X rays revealed a metal fragment lodged in her lung and bone fragments around the middle of her thoracic spine area. Dr. Rivard opined that the bullet entered either from above her or in front of her, if she had been bending down. Dr. Rivard determined that the shot had come from a distance greater than two or three feet. Blood tests revealed that the victim's blood alcohol content was 0.170 and that she had consumed cocaine and amphetamines.

Detective Scott Robin, an evidence technician, testified that, on November 15, 1993, at approximately 1:30 a.m., he arrived at the subject residence. Detective Robin stated that, while searching the bedroom for evidence, he found a .22-caliber semiautomatic pistol lying on the floor. A live round was "chambered in the weapon." He also discovered a magazine in the pistol's vicinity. Detective Robin further found two spent .22-caliber shell casings and two live .22-caliber rounds in the bedroom. A 16-gauge shotgun was also found in the bedroom.

Detective Robin also testified that he discovered what he thought was a bullet hole above the head of the bed in which the victim was found. Detective Robin was unable to retrieve a bullet from this hole. On cross-examination, Detective Robin conceded that he could not conclusively state that this was a bullet hole. Nor could he determine when the hole had been made. He described the hole as approximately six feet above floor level.

Detective John Byrne of the Lake County sheriff's police testified that he spoke to defendant while the latter was locked in Officer Byrne's squad car. Defendant told Detective Byrne that he and the victim had been fighting and that the gun fell off the bed and fired.

Robert Wilson, a firearm and tool mark examiner with the Northern Illinois Police Crime Laboratory, identified the pistol taken from the bedroom floor as a Ruger standard Mark One semiautomatic .22-caliber pistol. He explained that, with such a pistol, the shooter must pull the trigger for each shot fired. Wilson stated that tests indicated that the two spent cartridge casings found on the bedroom floor were fired by this pistol. Wilson further identified the magazine found on the floor near the pistol as a "Ruger standard magazine." He described a magazine as "the portion of the firearm that is filled with live rounds and inserted into the firearm." Wilson stated that, after a bullet is fired from this type of pistol, its spent cartridge casing is expelled from the pistol.

Wilson also testified that he had examined the shotgun taken from the bedroom. He described it as a 16-gauge bolt-action shotgun. Wilson testified that the shotgun's barrel and stock had been shortened. The barrel measured 15 inches in length, and the shotgun measured 26 1/2 inches in toto.

Detective Robert P. Randall of the Lake County sheriff's department testified that he drove defendant from the Wauconda police station to the sheriff's office in Waukegan. During the ride, defendant said repeatedly that it was ridiculous that he was being arrested, since he had not been in the room at the time.

The defense rested without presenting evidence. In addition to the charged offenses, the jury was instructed on the included offense of reckless conduct at the defendant's request. As noted above, the jury returned verdicts of guilty as to aggravated discharge of a firearm, reckless conduct, and UUW.

Defendant's motion for judgment notwithstanding the verdict was denied on April 18, 1994. A sentencing hearing was held immediately thereafter. Defendant was sentenced to concurrent terms of 13 and 5 years as to the aggravated discharge of a firearm and UUW charges, respectively. The reckless conduct charge was not addressed by the trial court. The State's motion to nol-pros the UUWF charge was granted. This timely appeal followed.

Defendant first argues that he was found guilty of two separate offenses, aggravated discharge of a firearm and reckless conduct in which the mental states are mutually exclusive. He contends that the facts do not support a conclusion that his mental state changed between the first gunshot and the second gunshot. Thus, defendant argues that his ...

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