Appeal from Circuit Court of Macon County No. 99CF940 Honorable Theodore E. Paine, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Steigmann
In November 1999, a jury convicted defendant, Tyrek S. Garry, of home invasion, armed robbery, and armed violence (720 ILCS 5/12-11, 18-2(a), 33A-2 (West 1998)). In January 2000, the trial court sentenced him to an extended-term of 45 years in prison for the armed violence conviction, based on his prior Class X felony conviction (730 ILCS 5/5-5-3.2(b)(1) (West 1998)), 25 years in prison for the home invasion conviction, and 25 years in prison for the armed robbery conviction, with all sentences to run concurrently. The court also ordered that defendant serve 85% of his sentence, pursuant to the truth-in-sentencing provision set forth in section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-6-3(a)(2)(iii) (West 1998)), upon agreeing with the jury's finding that defendant had inflicted great bodily harm upon the victim. Later that month, defendant filed a motion to reconsider his sentence, which the court denied.
Defendant appeals, arguing that (1) the State failed to prove beyond a reasonable doubt that he inflicted great bodily harm upon the victim; (2) the truth-in-sentencing provision set forth in section 3-6-3(a)(2)(iii) of the Unified Code (730 ILCS 5/3-6-3(a)(2)(iii) (West 1998)) is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000); (3) the extended-term sentencing provision set forth in section 5-5-3.2(b)(1) of the Unified Code (730 ILCS 5/5-5-3.2(b)(1) (West 1998)) is unconstitutional pursuant to Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63; and (4) the trial court erred by considering an improper aggravating factor in sentencing him. We affirm.
In July 1999, the State charged defendant with home invasion (count I), armed robbery (count II), and armed violence (count III). Count III alleged that defendant committed the offense of armed violence in that he "while armed with a dangerous weapon, a handgun, performed acts prohibited by [section 12-4(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-4(a) (West 1998))], in that [he committed the offense of aggravated battery when he] intentionally and without legal justification struck R.A. on the face with the handgun, thereby causing great bodily harm to [her]."
At defendant's November 1999 trial, R.A. testified that around 5:15 a.m. on July 11, 1999, she awakened to find three masked men in her apartment. The intruders, one of whom R.A. later identified as defendant, tried to intimidate R.A. into giving them money and drugs by opening and closing the slides on their automatic pistols and pointing the weapons at her. When R.A. told them she did not have any money, defendant and his co-defendant, Brandon Pugh, began beating the left side of her head and hip with their weapons. R.A. stated that they hit her in the head so many times that she "actually saw a vision of Jesus Christ on the wall." Pugh continued to beat R.A. with his gun, and with the help of the third intruder, held her down while defendant straddled her. Defendant then put one of his hands around R.A.'s throat and choked her so hard that she gasped for air, urinated on herself three times, and started menstruating. The beating continued for about 30 minutes, until police officers arrived and kicked open the apartment door. At that point, defendant, Pugh, and the other intruder fled through a window, taking R.A.'s car keys and a gold necklace.
R.A. stated that after assisting the police officers with their investigation on July 11, 1999, she drove herself to the emergency room, where doctors x-rayed her head and sutured a laceration near her left eye. The emergency room doctor instructed R.A. to take ibuprofen and apply ice to her injuries. For one to two weeks following the beating, her left hip and thigh were bruised and swollen. At the time of defendant's trial, R.A. still had a "big round circle" on her left hip and a scar from the laceration. As a result of R.A.'s struggle with her attackers, she was unable to hold one of her hands steady.
Eric Waggoner, a Decatur police officer, testified that around 5:30 a.m. on July 11, 1999, in response to a disturbance call, he approached R.A.'s apartment door. After announcing that he was a police officer, he heard a woman screaming for help. He then kicked open the door and saw a man climbing out a window. Waggoner also observed that R.A.'s face was bloody and swollen, and she had a one- or two-inch-long laceration on the left side of her face and a severe, 10-inch-wide bruise on her left upper thigh. About 20 minutes after entering R.A.'s apartment, Waggoner drove R.A. to the location where other officers had apprehended defendant, and R.A. identified him as one of her attackers.
On this evidence, the jury convicted defendant on all counts.
In January 2000, the trial court conducted a sentencing hearing. Milton Pozo, an emergency room physician, testified that R.A.'s injuries consisted of the following: (1) a quarter-inch-long laceration near her left eyebrow, which required three or four sutures, (2) bruises to both eyelids, (3) a mild hemorrhage in her left eye, and (4) a 10-inch-wide bruise on her left thigh. Pozo opined that R.A. did not sustain any "major injuries to her functioning or well-being." Defendant, his girlfriend, and his maternal grandmother testified in his behalf. The court also considered the presentence report, which showed that (a) defendant was 24 years old at the time of the incident; (b) he had prior juvenile convictions; (c) in 1994, he was convicted of home invasion, a Class X felony; and (d) he committed the present offenses seven months after being released from prison. After considering the evidence, defendant's statement, and counsel's arguments, the court sentenced defendant as stated. Defendant later filed a motion to reconsider his sentence, which the court denied.
A. Sufficiency of the Evidence
Defendant first argues that the State failed to prove him guilty of aggravated battery (which served as the predicate felony for armed violence) because the State did not prove that he inflicted great bodily harm upon R.A.. In support of this argument, defendant cites the following: (1) R.A.'s injuries, which consisted of a "small laceration and some bruises," did not constitute "great bodily harm"; (2) R.A. did not go to the emergency room immediately following the attack; (3) the treatment she received at the emergency room was "simple"; (4) she was not hospitalized; and (5) at the sentencing hearing, Pozo testified that R.A.'s bruises would have disappeared in a few weeks. According to defendant, because the State failed to prove that R.A. suffered great bodily harm, (1) his armed violence conviction cannot stand; and (2) the trial court erred by requiring him to serve 85% of his sentence, pursuant to section 3-6-3(a)(2)(iii) of the Unified Code (730 ILCS 5/3-6-3(a)(2)(iii) (West 1998)).
In response, the State argues that the evidence was sufficient to support the jury's finding that R.A. suffered great bodily harm. In support of its argument, the State cites the following: (1) "R.A. was beaten in the head and torso with the butts of two guns and choked for a period of 30 minutes"; (2) as a result of the beating, R.A. suffered (a) a laceration near her left eye, which required sutures and resulted in a permanent scar, and (b) severe bruising of her hip ...