The opinion of the court was delivered by: Justice Colwell
Appeal from the Circuit Court of Lake County. Honorable John R. Goshgarian, Judge, Presiding
Defendant, Latasha D. Edwards, appeals from her convictions of armed violence, aggravated battery with a firearm and aggravated discharge of a firearm. Defendant maintains (a) that there was insufficient evidence for the trial Judge to find her guilty of armed violence predicated on aggravated battery; (b) that her conviction of aggravated battery with a firearm and one of her convictions of aggravated discharge of a firearm should be vacated under the "one-act-one-crime" doctrine; (c) that the version of the statute under which she was sentenced (720 ILCS 5/33A--3(a) (West 1996)) was unconstitutionally amended in violation of the single subject rule; and (d) that she should be entitled to day-for-day good-conduct credit. Although we disagree with defendant's first argument, we agree with her other three arguments and remand the cause for resentencing.
On April 16, 1997, Vivian Willis (Vivian) was shot in the leg in front of her sister Buffie's house in Waukegan. As a result, a Lake County grand jury returned an indictment against defendant and two others, Barbara Armstrong and Lenora Polk. The indictment contained five counts pertaining to defendant: one count for armed violence (720 ILCS 5/33A--2 (West 1996)); one count for aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1996)); two counts for aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1996)) (one count for shooting at Vivian and a second count for shooting at Vivian's sister, Falisa); and one count for unlawful use of a weapon (720 ILCS 5/24--1(a)(4) (West 1996)).
Defendant's bench trial began on July 16, 1997. The State called several witnesses in its case in chief, including Vivian, Terry Willis, Falisa Willis, Kenesha Davis and Doreen Bryant. Each of those individuals, along with Buffie (collectively, the Willis party), was at the Rocks Inn nightclub in Waukegan on April 15. Defendant and her two friends, Armstrong and Polk (collectively, the defendant's party), were also at the nightclub. Shortly after midnight, as the Willis party was leaving the nightclub, defendant and Buffie became involved in an altercation. Members of both parties intervened and broke up the fight, and Vivian and Armstrong then began fighting. The two groups subsequently left the nightclub. Bryant and Davis testified that, in the parking lot, they saw defendant get into a car and heard defendant say that she would be back. The Willis party went to Buffie's house, which was one block from the nightclub.
The Willis party was standing in front of Buffie's house when Armstrong drove up in a maroon car. Defendant and Polk were in the backseat. Defendant exited the car, pointed a gun at Terry and said, "I am back now, bitches. What's up." Polk pointed at Vivian and yelled, "[N]o, it was not him. It was her." Defendant turned and shot at Vivian, and the bullet struck Vivian in the bottom of her right leg. A boy pushed Vivian to the ground, and everyone else scattered. Defendant spotted Falisa and Rachel Willis, who were hiding between Buffie's house and the house next door, and fired one or two errant shots at them. Defendant reentered Armstrong's maroon car, and the car sped off.
Shortly thereafter, Officer Fernando Shippley, who was on duty in the area and heard the shots, pulled over the maroon car. Armstrong was the driver, and defendant and Polk were the passengers. All three were arrested. The police recovered a .38 caliber revolver with three spent and three live cartridges from the car.
Vivian testified that defendant was approximately five or six feet from her when defendant fired the gun. Vivian stated that she felt something hit her leg and that she "thought it was rocks or something." She testified that, although she did not immediately feel pain in her leg, a week later the pain "was kind of bad." Vivian experienced difficulty walking immediately after the incident.
Janet Trimaico, a nurse at St. Therese Hospital in Waukegan, testified that she treated Vivian in the emergency room on April 27. Trimaico stated, "[Vivian] had actually two wounds, gun shot wounds through and through. Two small circular wounds on either side of [the] front of her shin."
Defendant testified in her own behalf. According to defendant, Buffie initiated the fight with her and cut defendant's face with a broken bottle. Defendant and her friends immediately left the nightclub and jumped in a car. As the defendant's party drove away, the Willis party chased and beat on the car and threatened defendant. When defendant arrived home, the cut on defendant's face was still bleeding. Armstrong offered to drive defendant to the hospital for treatment. Defendant brought a gun with her since, in her words, she was "scared."
Armstrong drove her car past Buffie's house when, according to defendant, Terry ran in front of the car and attempted to pull defendant from the backseat. Defendant heard people yelling "Get her, Terry," and defendant grabbed her gun and fired a shot into the air. Everyone but two people ran, and defendant fired two more shots into the air to clear the area. The police stopped the car after the defendant's party left the scene.
The trial court found defendant's testimony incredible and orally found defendant guilty on all five counts. The written order entitled "Judgment and Sentence," however, excludes the conviction on the unlawful use of weapons count and instead contains guilty findings for the four remaining counts (armed violence, aggravated battery with a firearm and both counts of aggravated discharge of a firearm). Defendant was sentenced to 15-year concurrent terms of imprisonment on those four counts. The sentencing order further states, "Truth in sentencing applies (Defendant to serve 85%)."
Defendant's first contention is that Vivian did not suffer "great bodily harm" as required by section 12--4(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/12--4(a) (West 1996))(aggravated battery statute). Defendant was indicted for armed violence predicated on aggravated battery. According to defendant, since Vivian did not suffer great bodily harm from her gunshot wound, the trial court erred in finding defendant guilty of armed violence.
Section 33A--2 of the Code states, "A person commits armed violence when, while armed with a dangerous weapon, [s]he commits any felony defined by Illinois Law." 720 ILCS 5/33A--2 (West 1996). Section 12--4(a) provides, "A person who, in committing a battery, intentionally or knowingly causes great bodily harm *** commits aggravated battery." 720 ILCS 5/12--4(a) (West 1996). Whether a particular injury constitutes great bodily harm is a question of fact. People v. Doran, 256 Ill. App. 3d 131, 136 (1993).
Defendant concedes that Vivian's injury is the type of "bodily harm" that would constitute a simple battery. See 720 ILCS 5/12--3(a) (West 1996). However, as defendant points out, the term "great bodily injury," an element of the offense of aggravated battery, "is an injury of a graver and more serious character than an ordinary battery." People v. Costello, 95 Ill. App. 3d 680, 684 (1981). Defendant asserts that Vivian's injury did not constitute "great bodily harm," since (a) Vivian did not feel pain immediately after she was shot, (b) Vivian was not hospitalized, ...