Appeal from Circuit Court of Champaign County No. 00CF517 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In June 2000, a jury convicted defendant, Roy L. Lewis, of aggravated battery of a person 60 years of age or older (720 ILCS 5/12-4(b)(10) (West 2000)). The trial court later sentenced him to five years in prison with credit for 106 days served in custody prior to sentencing.
Defendant appeals, arguing that (1) the trial court erred by tendering jury instructions that did not include the required element of bodily harm; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) he is entitled to 30 additional days of sentencing credit for time served. Because we agree with defendant's first argument, we reverse in part and reduce defendant's conviction to battery (720 ILCS 5/12-3 (West 2000)) and remand for resentencing.
In March 2000, the State charged defendant with committing an aggravated battery in violation of section 12-4(b)(10) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-4(b)(10) (West 2000)) when he "without legal justification, knowingly made physical contact of an insulting or provoking nature with Johnny Brize, a person over the age of 60, in that [he] punched [Brize] on the chest with his fist."
At defendant's June 2000 trial, Brize testified that he was born in February 1932. At about noon on March 18, 2000, Brize drove to his rental properties located at 709 and 709 1/2 North Champaign Street in Champaign. When he arrived, he noticed that the aluminum storm door had been removed from the front of 709 North Champaign and the yard was littered with broken glass. Brize then walked to the rear of 709 1/2 North Champaign and noticed that an aluminum awning had been removed from above the back door. Brize returned to the front yard and saw a young man walking toward him down the street, pushing a grocery cart. Brize's storm door and awning were lying across the cart.
Brize approached the man and asked him how he got the door off of the house. The man said that he had found it in the yard. Brize accused the man of lying and an argument ensued. The man threw the door and awning off of the cart and started to walk away with the cart. Brize grabbed the cart and told the man that he would not let him leave until the police arrived. In a struggle over the cart, the man shoved Brize and Brize shoved the man. The man then hit Brize on the shoulder and began walking away. Brize began chasing the man.
During the chase, Brize came upon a police officer sitting in an unmarked car. He pointed to the man he was chasing and told the officer what had happened. The officer drove away, and the police caught the man between Park and University Avenues. Brize told police officers that they had the right man.
Brize further testified that he had never seen the man before March 18, 2000. When the prosecutor asked Brize if he saw the man in the courtroom, Brize replied, "I don't know. It look like it may be him. (Pointing.) I'm not for sure."
Champaign police sergeant Mark Aquino testified as follows. Around noon on March 18, 2000, he was sitting in an unmarked car in the north employee parking lot of the Champaign police station. He saw a short black male wearing a green ball cap and an orange Illini jacket (later identified as defendant) walking between his car and the police station across the railroad tracks. Defendant at first was walking at a normal pace. However, after he saw Aquino, his pace quickened slightly. Aquino watched as defendant walked across First Street and east on Church Street. While Aquino was watching defendant, Brize appeared from the same path as defendant, and approached Aquino. Brize was out of breath. He pointed down the street at defendant and asked Aquino if he would arrest defendant for him. Aquino estimated that at that point, there was about three-fourths of a block between himself and defendant. After Brize told Aquino what had happened, Aquino made a call on his radio and drove away. He caught up with defendant, stopped him, and asked him to identify himself. Other police officers immediately arrived, and Aquino handed defendant over to them. Aquino observed an officer arrive at the scene with Brize in the backseat of his squad car. Brize was a few yards from defendant. Aquino was told by his officers that Brize had identified defendant.
Champaign police officer David Allen testified that on March 18, 2000, he was notified that Aquino was pursuing a man wearing an orange jacket and a hat and needed assistance. When Allen arrived at the intersection of Second Street and University Avenue, he saw Aquino with a man who matched the description Aquino had called in. Allen identified defendant as the man Aquino had apprehended.
On this evidence, the jury found defendant guilty of aggravated battery, and the trial court sentenced him as ...