The opinion of the court was delivered by: Presiding Justice Gordon
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ROBERT W. BERTUCCI, JUDGE PRESIDING.
Following a bench trial in the circuit court of Cook County, defendant Allen Cosby was found guilty of attempt first-degree murder (720 ILCS 5/8-4, 9-1 (West 1992)); attempt aggravated criminal sexual assault (720 ILCS 5/8-4, 12-14(a)(1) (West 1994)); aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1992)); two counts of aggravated battery (720 ILCS 5/12-4-A (West 1994) (aggravation based on great bodily harm), 720 ILCS 5/12-4-B(8) (West 1994) (aggravation based on fact that battery occurred on a public way)); one count of felony violation of the Firearm Owner's Identification Card Act (430 ILCS 65/2(a)(1), 14(c)(3) (West supp. 1995)); two counts of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994)); one count of unlawful use of a weapon on a public way (720 ILCS 5/24-1(a)(10) (West 1994)); and two counts of armed violence (720 ILCS 5/33A-2, 12-4(a), 12-4(b)(8)) (West 1994) (use of a weapon during the commission of aggravated battery)). Defendant was sentenced to 30 years imprisonment for his conviction for attempt murder; five years imprisonment for the violation of the Firearm Owner's Identification Card Act; and 30 years imprisonment for armed violence, all to run concurrently; and 15 years imprisonment on the attempt aggravated criminal sexual assault conviction to run consecutively to the above sentences. Defendant appeals. For the reasons given below, we affirm in part, reverse in part, and remand.
Defendant waived his right to a jury trial, and the case was tried to the bench in July 1997. The State's primary witness was the victim, Rosalyn Brown. Brown testified that she encountered the defendant in the early morning hours of August 2, 1996, around 3:30 a.m. Brown stated that at this time she was in a grocery store buying alcohol with a man she knew only as Harold. The defendant, who was in the store, followed her and Harold out of the store, fired a gun at the ground, and said to her, "I want some p*ssy, b*tch." *fn1 Brown and Harold walked away from the defendant, to the house of Brenda Allen, a friend of Brown's, near the store, where there were some people drinking on the porch. Brown admitted that she had been drinking since she had gotten up on the morning of August 1 and she had consumed about ten "bags" of crack cocaine on that day as well.
Brown testified that defendant followed her to Allen's house; it appeared that Allen and the defendant knew each other. However, Brown stated that at some point the people on the porch scattered; most ran into Allen's house and Harold ran elsewhere. *fn2 She left Allen's residence and began to walk home, in the direction of Honore Street; the defendant followed her. Brown then corrected her earlier testimony and stated that it was actually at this point, rather than earlier outside the store, that the defendant made the statement regarding wanting some "p*ssy." Brown stated that she eventually began to tell the defendant that she was "going to give it to" him, in order to, in her words, "bide my time, you know, try to save my life."
A confrontation occurred between the two in the area of 5922 Honore. Brown stated that the defendant pointed the gun at her neck and she began to struggle with him, trying to knock the gun out of his hands; he fired the gun, shooting her in the neck. The two continued to fight, and defendant shot her again, this time grazing her left hand. Although Brown was still standing at this point, she fell to the ground after defendant began to beat her in the head with the gun. Defendant continued to beat her even after she was on the ground; at some point during the beating she lost consciousness. She regained consciousness in an ambulance which was taking her to a hospital.
The State next called Chicago Police Officer Rodney Smith. Officer Smith testified that he was called to the area of 5922 South Honore at approximately 3:30 a.m. on August 2, 1996, in response to a radio dispatch of a report of shots fired. When he and his partner arrived at the scene, the officer observed a man straddling a woman in the street. Officer Smith testified that it first appeared that the man was punching the woman in the face, but as they drove closer he realized that the man was in fact hitting the woman in the head with an object he was holding in his hand. He saw the man strike the woman at least three times.
Officer Smith testified that once their car got within a car length of the assault, the man (whom he identified as defendant) got up and ran. Smith exited the car and followed the defendant as he ran through a gangway between two houses. Although he lost sight of defendant for a short while as defendant made a sharp turn out of the gangway, he caught up shortly thereafter to find the defendant already in the custody of another officer, Officer Hopkins. Officer Smith testified that he handcuffed the defendant as Officer Hopkins retrieved a gun from the ground near the defendant.
After the defendant was in custody, the officers returned to the victim. Officer Smith testified that the victim's face was bloody, and that she was placed into an ambulance when it subsequently arrived. He stated that he did not speak with the victim, although she did speak to some of the other officers. Smith testified that he did not hear the entire conversation; he admitted that he did not hear Brown state that her assailant pulled out a gun at two different times.
Chicago Police Officer Diana Hopkins testified that she also responded to the call of shots fired at 5922 South Honore and drove to the area with her partner. She also arrived at the scene while the assault was occurring, and saw the assailant get up and run. Officer Hopkins drove down an alley to position herself to cut off the suspect's escape, and got out of her car. She saw the individual she had seen beating the woman, whom she identified as the defendant, running towards her with a gun in his hand. She ran towards him and told him to drop the weapon; he did so. The other officers chasing defendant arrived shortly thereafter, and placed him into custody. Officer Hopkins stated that while he was being arrested he was "rambling the entire time that he hopes the b*tch dies. He beat the b*tch. He hopes that she dies." Hopkins testified that the defendant continued to make statements to the same effect after he had been given Miranda warnings and transported to the station.
After defendant was placed in custody, Officer Hopkins retrieved the revolver he had dropped. The gun contained three spent cartridges and no other ammunition; the butt of the gun was entirely broken off. Hopkins later located the butt of the gun on Honore street by the victim. She stated that the victim was bloody and bruised and "semiconscious"; she seemed unaware of what was occurring and kept repeating that she had been shot. Hopkins stated that she did not speak with the victim or ask her any questions at that time, although she did speak with her later at the hospital.
The parties stipulated that if called to testify a Dr. Phillip Zaret would testify that he treated the victim at Mount Sinai Hospital and diagnosed her with a gunshot wound to the left side of the neck and a probable fracture of the left hand. He would also testify as to the presence of numerous abrasions on the forehead and multiple lacerations. He would finally testify that bullet fragments remained inside the victim and that the victim was discharged on August 3. The parties also stipulated that the defendant had previously been convicted of home invasion and related charges.
The defense presented no evidence, and the court found defendant guilty on all counts. Although the court recognized that Brown was a "less than perfect" witness because of her admitted drug and alcohol use on the date in question, it noted that her testimony was significantly corroborated by the officers' testimony of seeing the defendant beating the victim with the gun; the recovery of the gun from defendant (and the butt of the gun near the victim); and the defendant's own statement that he did beat the victim and he hoped she died. The court stated that it had
"no idea why the defendant did what he did other than he was attempting to have sex with the victim because she was high on alcohol and drugs and maybe seemed like an easy mark. ***
All I do have before me is testimony from the victim and the two police officers in that regard, and as I say, he makes the statement after the fact that he did beat her and hoped she dies.
What infuriated him to that extent, I don't know. The state believes it is because she refused sexual advances when he demanded p*ssy from her, demanded sex from her. That is a reasonable explanation."
In a subsequent hearing on defendant's motion for a new trial (which was denied), the court stated that it "absolutely believe[d] her [(the victim)] in her testimony, and did so" at the time of trial. With respect to the attempt aggravated sexual assault count, the court explicitly stated that it found that defendant's actions of pursuing the victim, shooting her and beating her all "occurred because of his desire for sex at any cost with the victim."
The court denied defendant's motion for a new trial and, after hearing testimony and argument in aggravation and mitigation, sentenced him to 30 years imprisonment for the attempt murder conviction; 30 years for the armed violence conviction; and 5 years for the violation of the Firearm Owner's Identification Card Act, sentences to run concurrently. The court also sentenced defendant to 15 years imprisonment for the attempt aggravated criminal sexual assault charge, sentence to run consecutive to the 30-year term.
Defendant now appeals his convictions and sentence. He contends that (1) his conviction for attempt aggravated criminal sexual assault must be reversed because the State failed to prove he took a "substantial step" towards the commission of the offense; (2) his armed violence convictions should be vacated because they are "carved out of the same act" as his attempt murder conviction and, because armed violence carries a greater minimum sentence than attempt first degree murder, his armed violence convictions must be vacated as violative of the Illinois Constitution's guarantees of due process of law and proportionate penalties; (3) his conviction for violation of the Firearm Owner's Identification Card Act should be reversed because that statute has been found unconstitutional by our supreme court; and (4) the case should be remanded with directions that he be given day-for-day good time credit, because the truth-in-sentencing provisions under which he was sentenced are unconstitutional. On a cross-appeal the State contends that the case must be remanded for resentencing because the trial court erred in sentencing defendant concurrently for attempt murder and armed violence; the State argues that the court was required to impose consecutive sentences for defendant's convictions for attempt murder, attempt aggravated criminal sexual assault, and armed violence.
ANALYSIS ISUFFICIENCY OF EVIDENCE OF ATTEMPT AGGRAVATED CRIMINAL SEXUAL ASSAULT
Defendant's first contention on appeal is that the State did not prove him guilty beyond a reasonable doubt of the offense of attempt aggravated criminal sexual assault. Specifically, he contends his conviction on this count must be reversed because the State failed to prove he took a "substantial step" towards ...