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                                                                                                           FIRST DIVISION
                                                                                                           August 7, 2000

Following a jury trial, defendant, Gregory Becker, a Chicago police officer was convicted of onecount of armed violence (720 ILCS 5/33A-2 (West 1994)), one count of involuntary manslaughter (720 ILCS5/9-3(a) (West 1994)) and three counts of official misconduct (720 ILCS 5/33-3(a),(b) (West 1994))involving the shooting death of Joseph Gould. On appeal, defendant asserts that: (1) his armed violenceconviction was improperly based upon the same conduct found to be unintended by the jury's simultaneousverdict of guilty on involuntary manslaughter; (2) the verdicts for involuntary manslaughter and armedviolence were legally inconsistent because their respective mental states of recklessness and knowledge weremutually inconsistent; (3) his armed violence charge constituted an impermissible double enhancement; (4)the indictment did not sufficiently allege a charge of armed violence; (5) the section 33-3(a) officialmisconduct conviction violated his fifth amendment privilege against compulsory self-incrimination; and (6)the State failed to prove him guilty beyond a reasonable doubt of official misconduct and armed violencewhere the acts performed were in his individual, not official, capacity. For the reasons set forth below, weaffirm in part, reverse in part, and remand.

I. FACTS

After dismissing 7 counts of the original 13-count indictment, the State proceeded to trial on thefollowing counts against defendant: count I, armed violence; count II, involuntary manslaughter; count V,section 33-3(a) official misconduct; and three counts of section 33-3(b) official misconduct under countsIX, XII and XIII. Count I alleged defendant committed armed violence in that he, while armed with ahandgun, committed official misconduct. Count II alleged that defendant committed involuntarymanslaughter in that he without lawful justification, acting in a reckless manner, unintentionally killedJoseph Gould when he discharged a handgun in the presence of Joseph Gould, causing a fatal gunshotwound to Gould's head. Count V alleged section 33-3(a) official misconduct in that defendantintentionally or recklessly violated Rule 6 of Article V of the Rules and Regulations of the ChicagoPolice Department by failing to follow procedures after discharging his firearm. Count IX alleged thatdefendant knowingly violated Rule 38 of Article V when he unnecessarily displayed his weapon andstruck Joseph Gould with the weapon. Count XII alleged defendant knowingly violated Rule 9 of ArticleV when he engaged in an unjustified physical altercation using excessive force with Joseph Gould. Count XIII alleged that defendant knowingly violated Rule 9 when he engaged in an unjustified physicalaltercation with Joseph Gould.

At trial, the testimony indicated that on July 30, 1995, at 12:30 a.m., the defendant was off dutyfrom his job as a Chicago police officer. Defendant and his girlfriend, Joey Preston, left America's Barin Chicago and began to walk toward the defendant's car, parked on the corner of Huron and FranklinStreets. Defendant and Preston walked down Franklin Street, Joseph Gould approached them, and Gouldengaged Preston in a conversation while defendant walked ahead of them. Preston yelled at Gould andtold him to leave her alone, but Gould refused. Preston and Gould caught up to the defendant and thedefendant told Gould to get away. Defendant and Preston then crossed Franklin with Gould just behindthem. When they reached defendant's car, defendant walked to the trunk of the car and then walked backtoward Gould. The defendant and Gould were facing each other. According to the State's witness,defendant, with a black object in his hand swung his arm towards Gould's face. A gun went off, andGould fell to the ground. Defendant entered his car and left. Gould died from a single gunshot wound tothe head. The police arrested him at his home and recovered the 9 millimeter weapon used in theshooting.

Charles Roberts testified that he was the assistant deputy superintendent for training for theChicago police department. Roberts stated that defendant was trained at the Chicago Police DepartmentTraining Academy, where defendant received a copy of the rules and regulations of general and specialorders of the Chicago police department. The rules and regulations govern the conduct of a police officerboth on and off duty. Defendant was trained in the use of force, use of a weapon, and the requirement tonotify his supervisor immediately upon discharge of his weapon. He was taught that his gun was never tobe used as an impact weapon.

Lieutenant James K. Hickey testified that he was the commander in charge of the policy andprocedure section of the research and development division for the Chicago police department. Lieutenant Hickey testified that General Order 85-1, in effect on July 30, 1995, required a police officerwhether on or off duty at the time when he discharged a firearm to: (1) notify immediately thecommunications section and desk sergeant of the district where the firearm is discharged; (2) attend torequired emergency assistance; (3) assist and provide information to department members investigatingthe discharge; (4) perform required duties including filing reports; and (5) submit a firearms use report tothe watch commander without unnecessary delay.

Lieutenant Hickey testified to general orders in effect on July 30, 1995, which governed theconduct, demeanor, and use of nondeadly and deadly force by a police officer. According to the generalorders, a police officer should only use deadly force when he reasonably believes such force is necessaryto prevent death or great bodily harm to himself or others. Lieutenant Hickey stated that the generalorders restrict a police officer's use of a firearm until all other means to apprehend and control anindividual have been employed without success. The use of a firearm in any case is a last resort measure. The rules prohibit police officers from using excessive force while on or off duty and prohibit unjustifiedaltercations of any kind with any person while on or off duty. Hickey testified that an officer is expected"to render the highest order of police service to all citizens, whether or not during specifically assignedhours."

Defendant testified that while walking from America's Bar to his car with Preston, Gould askedhim for money. Defendant refused the request. Gould followed them for about a half block and wasagitated, mumbling continuously. Preston yelled at Gould to get away from her. Defendant told Gouldto stay away from them or he would lock Gould up because he was a Chicago police officer. Gould thentold defendant that he would "kick his ass." When Preston and defendant reached defendant's car,defendant went to the trunk and got Preston's purse and his gun. Defendant stated that he was putting thegun in his waistband when Gould pulled on his jacket.

Both Gould and defendant pulled at the gun, defendant lost balance, and a struggle ensued overthe weapon. Regarding the struggle defendant testified that Gould "pulled me off balance. I think Igrabbed onto the shirt. He was pulling on it. I was pulling back. Excuse me. And I was just trying toget, gain control of it, and then I think it hit him in the head once, and then he pulled it back again, and I,when I pulled it, I extended my whole arm and I pulled back, and the gun fired." Defendant stated that heunintentionally pulled the trigger when he was trying to gain control of the gun. He testified that the gunwas fully loaded, a bullet was in the chamber and the external safety was not engaged. After the gunwent off, Gould fell to the ground but defendant testified that he did not believe Gould was shot. He andPreston drove to Preston's apartment, and he did not notify the police regarding the discharge of hisweapon or the incident.

The State proceeded to trial on six counts of the indictment; however, when instructing the jury,count XII and count XIII were combined and the jury received the following five verdict forms: (1)armed violence predicated on section 33-3(b) official misconduct charge alleging defendant's unjustifiedaltercation with Gould; (2) involuntary manslaughter; (3) section 33-3(a) official misconduct; (4) section33-3(b) official misconduct based on defendant's unnecessary use or display of his weapon; and (5)section 33-3(b) official misconduct based on defendant's unjustified altercation. The jury founddefendant guilty on all counts, including armed violence, involuntary manslaughter, and the three countsof official misconduct. The trial court merged the two section 33-3(b) official misconduct convictionsinto the armed violence conviction and sentenced defendant to concurrent sentences of 15 years on hisconviction for armed violence, 5 years for involuntary manslaughter, and 5 years for the section 33-3(a)official misconduct.

The armed violence statute under which defendant was originally sentenced was part of PublicAct 88-680 commonly known as the Safe Neighborhoods Law (Pub. Act 88-680 eff. January 1, 1995). InPeople v. Cervantes, 189 Ill. 2d 80, 91 (1999), the supreme court declared Public Act 88-680unconstitutional in that its provisions lacked a natural and logical connection and therefore violated thesingle subject clause of the Illinois Constitution. Public Act 88-680 included a provision increasing theminimum sentence for armed violence committed with a handgun from a minimum of 6 years to aminimum of 15 years (See 720 ILCS 5/33A-3(a)) (West 1996)). When an act is declaredunconstitutional, the state of the law is as if the act had never been passed. In re G.O., 191 Ill. 2d 37(2000). As the result of Public Act 88-680 being declared unconstitutional, the original armed violencestatute providing a 6 year minimum sentence applied to defendant's armed violence conviction. Since theCervantes ruling, the trial court resentenced defendant to 10 years for armed violence based on thesentencing provisions in effect before the enactment of Public Act 88-680. (See 720 ILCS 5/33A-3(West 1992)).

Defendant contends that his conviction for armed violence must be vacated because the armedviolence conviction was based on unintentional and undeterrable conduct. Defendant argues that theState used the section 33-3(b) official misconduct charge as a predicate felony only because the State wasprecluded by law from using involuntary manslaughter as a predicate felony. See People v. Fernetti, 104Ill. 2d 19, 25 (1984). Defendant further contends that the conduct underlying the official misconductcharge was the same conduct underlying the involuntary manslaughter charge and, therefore, was not aproper predicate for the armed violence charge.

The Criminal Code of 1961 (Code) provides that "[a] person commits armed violence when,while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS5/33A-2 (West 1994). An issue of statutory interpretation is a question of law and our review is de novo. People v. Krause, 273 Ill. App. 3d 59, 62 (1995). The plain language of a statute is the best indicator oflegislative intent. People v. Scharlau, 141 Ill. 2d 180 (1990). Our supreme court, under certaincircumstances, has limited the type of felonies contemplated by the "any felony" language of the armedviolence statute. Finding the words, "any felony" within the armed violence statute ambiguous, thesupreme court has held that the offenses of voluntary and involuntary manslaughter cannot serve aspredicate felonies for an armed violence charge and conviction because the legislature never intended forthe armed violence statute to apply to conduct that is not deliberate. People v. Alejos, 97 Ill. 2d 502, 509(1983); Fernetti, 104 Ill. 2d at 24-25 (1984).

In Alejos, the court noted that the presence of a weapon enhances the danger that any felony thatis committed will have deadly consequences should the victim offer resistance. Alejos, 97 Ill. 2d at 508. Thus the court regarded the presence of a weapon as an aggravating factor that "enhances the severity ofthe underlying felony and upgrades the punishment available for it to Class X." Alejos, 97 Ill. 2d at 508. The court recognized that "stiff punishment mandated by the armed-violence provision is intended notonly to punish the criminal and protect society from him but also to deter his conduct--that of carryingthe weapon while committing a felony." Alejos, 97 Ill. 2d at 509. In Alejos, the defendant was convictedof voluntary manslaughter and armed violence based on voluntary manslaughter. The appellate courtreversed the armed violence and remanded for sentencing on the manslaughter conviction. The supremecourt found that an individual who commits voluntary manslaughter, now second degree murder, haslittle, if any, intent to take a life or use deadly force; rather, the only "intent" that enters into the crime isthe decision, arrived at without deliberation and usually instantaneously, to use force capable of killing. Alejos, 97 Ill. 2d at 509. Consequently, the supreme court held that voluntary manslaughter could not bea predicate felony for an armed violence conviction because the armed violence statute does not apply toconduct that is the result of passion or misconception and essentially undeterrable. Alejos, 97 Ill. 2d at509. Based on that reasoning the supreme court affirmed the appellate court's reversal of the armedviolence conviction and remanded for resentencing on the voluntary manslaughter conviction. Alejos, 97Ill. 2d at 514-15.

In Fernetti, the supreme court applied the Alejos reasoning to involuntary manslaughter andfound that a charge of involuntary manslaughter could not be the predicate felony for an armed violencecharge. The court held that involuntary manslaughter constitutes conduct that by its nature isunintentional and therefore is not deterrable by the enhanced penalty provision under the armed violencestatute. Fernetti, 104 Ill. 2d at 25. The court ordered the trial court to vacate the armed violenceconviction and sentence and remanded for sentencing on the involuntary manslaughter conviction. Fernetti, 104 Ill. 2d at 26.

The Illinois supreme court next addressed this issue in People v. Drakeford, 139 Ill. 2d 206(1990), where the State charged defendant with murder and armed violence predicated on aggravatedbattery causing great bodily harm. The jury, however, found defendant guilty both of armed violence andsecond degree murder. Defendant argued that his armed violence conviction should be vacated becausein returning a verdict of guilty for second degree murder the jury found that his conduct could not bedeterred. The supreme court vacated the armed violence conviction and held that the armed violenceconviction could not be predicated upon second degree murder because the legislature did not intend for"the armed violence statute to apply to conduct constituting second degree murder." Drakeford, 139 Ill.2d at 213.

In Drakeford, the court noted that the jury's verdicts of guilty for second degree murder andarmed violence arose from the same criminal conduct. Drakeford, 139 Ill. 2d at 215. Therefore, once thejury found that defendant's conduct was unpremeditated and undeterrable, the defendant's penalty couldnot be enhanced under the armed violence statute. Drakeford, 139 Ill. 2d at 213-14. The court affirmedthe judgment of the appellate court which had vacated the conviction for armed violence, affirmed thesecond degree murder conviction and remanded for sentencing on second degree murder. Drakeford, 139Ill. 2d at 216. Defendant urges us to extend Drakeford to the facts of this case and prohibit the State fromenhancing defendant's sentence through an armed violence conviction because the jury found him guiltyof involuntary manslaughter. According to defendant, by predicating the armed violence charge onsection 33-3(b) official misconduct, the State is violating the principles of Alejos, Fernetti and Drakefordin applying the armed violence statute to undeterrable conduct.

Defendant's official misconduct charge, which served as the predicate felony for the armedviolence conviction, was for a knowing violation of police rules and regulations. The purpose of theofficial misconduct statute is to compel public officials to act in a lawful manner and to maintain thepublic trust. Wright v. City of Danville, 174 Ill. 2d 391, 404 (1996). The statute provides that: "A publicofficer or employee commits misconduct when, in his official capacity, he * * * (b) [k]nowinglyperforms an act which he knows he is forbidden by law to perform." 720 ILCS 5/33-3(b) (West 1994).

Here, there was evidence which demonstrated that defendant knowingly performed an act whichhe knew was forbidden by law when he engaged in an unjustified altercation with Gould. The defendanthad received training at the police academy regarding regulations that prohibited unjustified altercationswith citizens. Gould initially approached defendant and Preston. Although asked to leave, Gouldcontinued to follow defendant and Preston and a verbal confrontation began. When defendant arrived athis car, defendant did not drive away, but deliberately went to the trunk of his car, retrieved anddisplayed his weapon, then struggled with Gould and struck Gould with his weapon. Defendantknowingly engaged in a physical altercation with Gould while armed with his gun which escalated thepossibility of violence and injury and ultimately ended in the death of the victim. It is the use or presenceof a weapon that increases the chances of violence, great bodily harm or death and justifies an enhancedpenalty under the armed violence statute.

If the decision to use a weapon is not forced upon the defendant or a result of a spontaneousdecision, then the defendant's conduct can be deterred and the purpose of the armed violence statute issatisfied. People v. Eure, 140 Ill. App. 3d 387, 394 (1986). Here, there was evidence that defendantknowingly engaged in both a verbal and a physical altercation with the victim and knowingly violatedChicago police department rules by deliberately choosing not only to arm himself but to display and usehis weapon during the altercation. The jury's guilty verdict on the section 33-3(b) official misconductoffense based on defendant's unjustified altercation with the victim indicates that the jurors founddefendant's conduct to be a knowing violation of the law, and thereby deterrable conduct which provideda legally proper predicate felony for armed violence.

The purpose of the armed violence statute is to "'discourage those who contemplate a feloniousact beforehand from carrying a weapon when they set forth to perform the act.'" Drakeford, 139 Ill. 2d at211, quoting Alejos, 97 Ill. 2d at 509. Under the facts of this case we decline to find a legislative intentto exclude the section 33-3(b) official misconduct offense based on defendant's knowing violation of thelaw from being a predicate felony for an armed violence charge, since knowing conduct can be deterredand the purpose of the armed violence statute is thereby satisfied. Defendant's conviction for armedviolence was based on evidence of knowing and deterrable official misconduct. The section 33-3(b)official misconduct allegation of defendant's unjustified altercation with Gould was a proper predicatefelony for defendant's armed violence conviction. Therefore, the State did not violate the principles ofAlejos, Fernetti and Drakeford since the armed violence statute was applied to deterrable conduct.

We address defendant's alternative argument that the jury returned legally inconsistent verdictsby finding defendant guilty of armed violence and involuntary manslaughter because the mental states ofrecklessness and knowledge are mutually inconsistent. Defendant argues that if the jury found him guiltyfor armed violence based on his act of knowingly engaging in an unjustified altercation with the victim,the jury could not also consistently find that he acted recklessly for the same criminal conduct and returna verdict of guilty for involuntary manslaughter. Defendant contends that his armed violence verdict ofguilty based on a section 33-3(b) official misconduct predicate felony, alleging the knowing ruleviolation of engaging in an unjustified altercation is legally inconsistent with the guilty verdict forinvoluntary manslaughter, based on recklessly causing Gould's death.

The State counters that the section 33-3(b) official misconduct offense is not a lesser includedoffense of involuntary manslaughter but an offense based on a knowing rule violation. 720 ILCS 5/33-3(b) (West 1994). The State contends that because armed violence and involuntary manslaughter requireproof of different elements, the jury could find that while defendant was engaging in conduct he knew hewas forbidden to perform, he was also recklessly causing Gould's death.

"Legally inconsistent verdicts cannot stand because they are unreliable. At a minimum, suchverdicts suggest confusion or misunderstanding on the part of the jury." People v. Klingenberg, 172 Ill.2d 270, 281 (1996). When the jury returns multiple guilty verdicts on knowing and reckless offenses forthe same conduct, the verdicts are legally inconsistent, and the defendant is entitled to a new trial. People v. Hoffer, 106 Ill. 2d 186, 195 (1985). In Hoffer, the supreme court reversed a defendant's murderand manslaughter convictions and remanded for a new trial, because the jury's multiple verdicts indicatedthat defendant acted in a knowing, intentional, and reckless manner for the same criminal conduct. Hoffer, 106 Ill. 2d at 195. The court concluded that for a legally consistent verdict regarding the samecriminal conduct, the jury was required to find that defendant acted either knowingly or recklessly, butthat these mental states were mutually inconsistent and could not coexist. Hoffer, 106 Ill. 2d at 195.

In People v. Spears, 112 Ill. 2d 396 (1986), the supreme court expanded on Hoffer and held thatwhere defendant's culpable conduct was essentially one act, the jury could not find that defendantpossessed simultaneous knowing and reckless mental states. Spears, 112 Ill. 2d at 407. In that case, thedefendant shot his wife and her friend within rapid succession. Five verdict forms were provided: onefor attempted murder of his wife, two for armed violence as to his wife and her friend, and two forreckless conduct as to his wife and her friend. The jury found the defendant guilty on all counts. Thesupreme court stated that, in resolving the question of whether guilty verdicts are consistent, the charginginstrument, the jury instructions and the evidence at trial provide the essential framework for analyzingthe consistency of jury verdicts. Spears, 112 Ill. 2d at 405. The court noted that if the verdicts are basedon separate acts, then the jury could consistently find that defendant possessed separate culpable mentalstates for each act and could properly return verdicts of guilty on charges reflecting both knowing andreckless mental states. Spears, 112 Ill. 2d at 406. However, after reviewing the indictment and theevidence at trial, the court in Spears reversed and remanded for a new trial indicating that the defendant'scharges overlapped, reflected one criminal act, and the evidence refuted any claim that defendant'smental state changed during the shooting of the two people; therefore, the jury could not have returnedguilty verdicts based upon separate acts accompanied by different mental states of culpability. Spears,112 Ill. 2d at 406.

The supreme court adhered to the holdings of Hoffer and Spears in People v. Fornear, 176Ill. 2d 523 (1997). In Fornear, the State again argued that defendant's conduct of firing multiple gunshotssupported separate verdicts for the offenses of aggravated discharge of a firearm, which required proof ofa knowing mental state, and reckless conduct, which required proof of a reckless mental state. Fornear,176 Ill. 2d at 532-33. In that case, the defendant allegedly shot his fiancee multiple times. Fornear, 176Ill. 2d at 531-32. Unlike Spears, however, the court noted that the charges in the indictment and theissues instructions provided to the jury alleged a separate offense for each action or shot fired by thedefendant. Fornear, 176 Ill. 2d at 533.

Nevertheless, the court found that no evidence existed to support the State's theory onappeal that defendant's mental state changed from a knowing mental state to a reckless mental stateduring the shooting. Fornear, 176 Ill. 2d at 533. The court noted that at trial the State's theory was thatthe defendant acted either intentionally or knowingly in shooting the victim. Therefore, the State onappeal was attempting to justify guilty verdicts which conflicted with its theory at trial and the evidence. Fornear, 176 Ill. 2d at 534. The court held that based on the evidence the jury could not rationally findthat defendant's mental state had changed during the shooting or that he committed separate acts withdifferent mental states. Fornear, 176 Ill. 2d at 534. Consequently, the court reversed the inconsistentguilty verdicts that found defendant acted with both knowing and reckless mental states and remandedfor a new trial on the aggravated discharge of a firearm and reckless conduct charges. Fornear, 176 Ill.2d at 535.

In this case, like Hoffer, Spears, and Fornear, the involuntary manslaughter count and the section33-3(b) official misconduct count upon which the armed violence was based charged defendant withessentially one criminal act or course of conduct. Count II alleged that defendant committed involuntarymanslaughter in that "he without lawful justification, acting in a reckless manner, unintentionally killedJoseph Gould * * * when he discharged a handgun in the presence of Joseph Gould, causing a fatal gunshot wound to the head of Joseph Gould." Under counts IX, XII and XIII, the section 33-3(b) officialmisconduct charges alleged that defendant knowingly violated Chicago police department regulations inthat he unnecessarily displayed his weapon and struck "Gould with said weapon" (count IX) andknowingly engaged in an unjustified physical altercation with Gould (counts XII and XIII). Therefore,the indictment charged defendant with both reckless and knowing mental states for the conduct ofdischarging a handgun in the presence of Gould and causing a fatal gunshot wound to Gould's head,displaying his weapon and striking Gould with the weapon, and engaging in an unjustified physicalaltercation with Gould.

In addition, the issues instructions given to the jury support a finding that the jury convicteddefendant for knowing and reckless offenses for the same criminal conduct. The involuntarymanslaughter instruction required the jury to find that "defendant performed the acts which caused thedeath of Joseph Gould" and that the "defendant performed those acts recklessly." The armed violenceinstruction and the section 33-3(b) official misconduct instruction that provided the predicate felony forthe armed violence instruction required the jury to find that "defendant knowingly performed an actwhich he knew was forbidden by law, to wit: he engaged in an unjustified verbal or physical altercationwith Joseph Gould in that he shot Joseph Gould in the head." The other section 33-3(b) officialmisconduct instruction required the jury to find that defendant knowingly performed an act which heknew was forbidden by law when "he unlawfully or unnecessarily used or displayed his weapon." Theinstructions and verdict forms provided to the jury rely on essentially the same conduct for theinvoluntary manslaughter, armed violence, and section 33-3(b) official misconduct offenses. The State'stheory as articulated in rebuttal argument was that defendant committed one criminal act that caused thedeath of Gould, specifically, the act of pistol whipping Gould. The State repeatedly indicated in rebuttalargument that defendant was guilty because he "pistol whipped" the victim. Therefore, the record doesnot support a finding that defendant committed separate knowing and reckless acts, or that thedefendant's mental state changed during his altercation with the victim.

In Hoffer the court resolved the problem that occurs when the jury returns guilty verdicts foroffenses arising out of the same criminal conduct but containing inconsistent mental states. The jury inHoffer received conflicting evidence as to whether the defendant intentionally or knowingly shot thevictim, which was the State's theory, or whether the defendant accidentally shot the victim under thedefendant's theory. The jury returned verdicts finding defendant guilty for knowingly and intentionallyshooting the victim (murder) and recklessly shooting the victim (voluntary and involuntarymanslaughter). The trial court vacated the manslaughter convictions but allowed the murder convictionto stand. The supreme court, however, reversed the murder conviction because of the inconsistent mentalstates and ordered a new trial on all the inconsistent verdicts. Hoffer, 106 Ill. 2d at 195.

In this case, the jury received conflicting testimony regarding the shooting of Gould anddefendant's mental state at the time he armed himself, engaged in the verbal and physical altercation withthe victim, and shot the victim. The State argued that defendant knowingly armed himself with hisweapon, knowingly displayed his weapon, and knowingly engaged in an unjustified verbal and physicalaltercation during which the victim was shot; the defense argued that Gould was the aggressor and Gouldwas shot accidentally. The jury received instructions on armed violence based on the knowing offense ofofficial misconduct and instructions on the reckless offense of involuntary manslaughter. The jury alsoreceived instructions on the knowing offenses of section 33-3(b) official misconduct. As in Hoffer,Spears, and Fornear, the jury was instructed on knowing and reckless offenses arising from essentiallythe same conduct and returned guilty verdicts for each offense it was instructed on, thereby convictingdefendant of offenses that contained mutually inconsistent mental states. Hoffer, 106 Ill. 2d at 195. Weconclude that based on the evidence, the jury could have found that defendant acted either knowingly orrecklessly, but it could not render inconsistent multiple guilty verdicts with both mental states foressentially the same conduct.

The trial court's failure to send the jury back for further deliberations to resolve the inconsistentverdicts mandates a reversal and a new trial on all the inconsistent verdicts including involuntarymanslaughter, armed violence, which was based on the section 33-3(b) knowing official misconductcharge alleging an unjustified altercation, and the section 33-3(b) knowing official misconduct charges. We further indicate that, on retrial, the trial court should take the preventative step of instructing the jurybefore it deliberates that it cannot consistently return simultaneous guilty verdicts for both reckless andknowing offenses. Spears, 112 Ill. 2d at 410. If after deliberation the jury again returns guilty verdictsfor a reckless offense and a knowing offense, the trial court must send the jury back for furtherdeliberation with additional instructions to resolve the inconsistency. Fornear, 176 Ill. 2d at 534-35. "When the jury return[s] with inconsistent guilty verdicts, the trial judge ha[s] a duty to send the juryback for further deliberations consistent with new instructions to resolve the inconsistency." Spears, 112Ill. 2d at 410.

We conclude that defendant is not entitled to a reversal of the section 33-3(a) official misconductconviction because that offense allowed the jury to find defendant guilty if it found that defendant actedeither intentionally or recklessly. Since the jury returned guilty verdicts for both reckless and knowingoffenses, there was no inconsistency in the verdict of guilty on the 33-3(a) official misconduct charge. 720 ILCS 5/33-3(a) (West 1994). We note subsection (a) of section 33-3 official misconduct indicatesthat a public official commits misconduct when he "intentionally or recklessly fails to perform anymandatory duty as required by law." 720 ILCS 5/33-3(a) (West 1994). In this case the indictment andjury instructions for the section 33-3(a) official misconduct offense tracked the language of the statute. Moreover, there was sufficient evidence to prove defendant guilty beyond a reasonable doubt under thissection of the statute. Any possible inconsistency created in subsection (a) of the statute by reference toeither an intentional or reckless mental state has not been argued in the context of the issues raised by thedefendant in the trial court or on appeal.

Defendant next contends that his armed violence conviction constitutes a double enhancement. In cases involving questions of law, the standard of review is de novo. People v. Walker, 308 Ill. App. 3d435 (1999). Defendant argues that proof of a weapon was an essential element of his section 33-3(b)official misconduct charge, that served as the predicate felony for the armed violence charge, and thelegislature did not intend armed violence to apply to a felony that required proof of a weapon as anelement. People v. Haron, 85 Ill. 2d 261, 278 (1981). The State claims that because the section 33-3(b)official misconduct charge that served as the predicate felony for armed violence did not allegedefendant's use of a weapon but alleged a rule violation, there is no double enhancement.

Double enhancement exists "when a factor previously used to enhance an offense or penalty isagain used to subject a defendant to a further enhanced offense or penalty." People v. Koppa, 184 Ill. 2d159, 174 (1998). In the context of armed violence, the State cannot seek to enhance an offense throughthe presence of a weapon and then use the weapon as a basis for an armed violence charge. Haron, 85 Ill.2d at 278. In Haron, the supreme court found an impermissible double enhancement because thepresence of a weapon enhanced a misdemeanor battery offense to felony aggravated battery andadditionally served as a basis for an armed violence charge. Haron, 85 Ill. 2d at 278.

However, where a defendant possesses a weapon during the commission of a felony, an armedviolence charge does not constitute improper enhancement if the elements of the predicate felony requireno presence or use of a weapon. People v. Munson, 171 Ill. App. 3d 274, 276 (1988). In Munson,defendant pointed a weapon at two police officers and threatened to kill them. Defendant was convictedof armed violence with intimidation as the predicate felony. The court noted the elements of intimidationonly required that defendant cause "a threat to unlawfully inflict harm, communicated with intent tocause action or inaction." Munson, 171 Ill. App. 3d at 277. The elements of this charge required no useor presence of a weapon. Munson, 171 Ill. App. 3d at 277. Therefore, the court held that becausedefendant's possession of a weapon was not an essential element nor did it enhance the predicate felonyof intimidation, defendant was not subject to a double enhancement. Munson, 171 Ill. App. 3d at 277. The supreme court further explained this principle in Koppa, noting that "the armed violence statute'srequirement that there be the commission of a felony while armed with a dangerous weapon contemplatesthe commission of a predicate offense which is a felony without enhancement by the presence of aweapon." Koppa, 184 Ill. 2d at 174. Therefore, the court concluded that felonies that themselves includethe use or presence of a weapon as an essential element cannot be the basis of an armed violence charge. Koppa, 184 Ill. 2d at 175.

The defendant points out that the issues instructions provided to the jury for the armed violencecharge stated that defendant committed official misconduct when he knowingly "engaged in anunjustified verbal or physical altercation with Joseph Gould in that he shot Joseph Gould in the head." Defendant argues that the words, "in that he shot Joseph Gould in the head" indicated that a weapon wasan essential element of the section 33-3(b) official misconduct charge that provided the predicate felonyfor armed violence. The State counters that this phrase constitutes "additional verbiage" and does notadd a weapon as an essential element of the official misconduct charge.

We are mindful that the fact that an indictment for armed violence contains the proper predicatefelony is irrelevant if the jury instructions allow for conviction on legally impermissible grounds. Peoplev. Hines, 257 Ill. App. 3d 238, 245 (1993). We further note that defendant, in a bill of particulars,requested the State to "specify what particular act of defendant Becker constitutes the physical altercationreferred to" in the two official misconduct charges in counts XII and XIII. The State specified theparticular act of defendant which constituted the physical altercation was: "Physical contact with JosephGould occurring on July 30, 1995, which contact resulted in Joseph Gould sustaining a fatal gunshotwound to the head." The wording in the jury instruction on armed violence referenced the gunshot to thehead as did the State's response to defendant's request for a bill of particulars.

However, defendant's armed violence charge does not constitute a double enhancement if thesection 33-3(b) official misconduct charge that provides the predicate felony for the armed violence doesnot require a weapon as an element of the offense or is not enhanced by the presence of a weapon. Munson, 171 Ill. App. 3d at 277. Here, the armed violence predicate was an official misconduct chargealleging that defendant had engaged in an unjustified verbal or physical altercation with Gould. Thepredicate felony of official misconduct did not require proof of the use or presence of a weapon as anelement of the offense; rather, the State was required to prove that defendant knowingly engaged in anunjustified altercation with Gould. 720 ILCS 5/33-3(b)(West 1994). The elements of the officialmisconduct that provided the predicate offense for the charge of armed violence are: (1) that thedefendant was a public officer or employee; (2) that in his official capacity the defendant knowinglyperformed an act he knew was forbidden by law to perform, to wit: violated the rules and regulations ofthe Chicago police department; (3) that defendant engaged in an altercation with Joseph Gould; and (4)that the altercation was unjustified.

Therefore, this official misconduct charge could properly serve as a predicate felony for armedviolence because the possession, use, or presence of a weapon was not an essential element of thepredicate felony nor did the weapon enhance the predicate felony of official misconduct. Munson, 171Ill. App. 3d at 277. Defendant was not subjected to double enhancement because the State did not needto prove that defendant used or possessed a weapon to sustain its burden of proving the elements of theofficial misconduct charge which served as the predicate felony for the armed violence. The issuesinstruction provided for the jury contained the essential elements of the offense and did not allow forconviction on legally impermissible grounds. The additional verbiage in the instruction indicatingdefendant shot Gould in the head was not an element of the official misconduct, was not necessary toestablish the official misconduct, and merely provided additional description. Therefore, defendant wasnot subject to double enhancement by the armed violence conviction because defendant's possession of aweapon was not an essential element of the official misconduct predicate felony, nor did it enhance thepredicate felony of official misconduct.

Defendant next contends that the trial court erred in denying his motion to dismiss the armedviolence charge where the indictment failed to specify the law and the conduct that formed the basis forthe official misconduct predicate felony for the armed violence charge. Defendant argues that becausethe armed violence charge only alleged that defendant committed official misconduct while armed with adangerous weapon but described no rule violation or conduct underlying the charge, he was notsufficiently informed of the nature and elements of the armed violence charge and could not prepare anadequate defense.

The standard of review of a defendant's motion to dismiss an indictment is whether the"indictment[] strictly compl[ies] with the pleading requirements of section 111-3 of the Code of CriminalProcedure of 1963." People v. Oaks, 169 Ill. 2d 409, 442 (1996). Section 111-3(a)(3) of the Code ofCriminal Procedure of 1963 requires that an indictment adequately inform an accused of a chargedoffense by "[s]etting forth the nature and elements of the offense charged." 725 ILCS 5/111-3(a)(3)(West 1994). The question is not whether the alleged offense could have been described with greatercertainty, but whether there is sufficient particularity to enable the accused to prepare a proper defense. People v. Meyers, 158 Ill. 2d 46, 54 (1994). The official misconduct statute, standing alone, does notparticularize the offense. People v. Samel, 115 Ill. App. 3d 905, 909 (1983). Where a statute does notspecifically define the crime, or does so only in general terms, the charge must go beyond the words ofthe statute; it must allege some act showing the statute was violated. People v. Grieco, 44 Ill. 2d 407,409-10 (1970).

"[I]t is a well-established rule in Illinois that all counts of a multiple-count indictment should beread as a whole and that elements missing from one count of an indictment may be supplied by anothercount." People v. Morris, 135 Ill. 2d 540, 544 (1990). As a result, although an indictment must identifythe elements of a predicate felony in an armed violence charge, those elements can be supplied by othercounts of a multiple-count indictment. People v. Hall, 96 Ill. 2d 315, 321 (1982). In Hall, one count of athree-count indictment charged defendant with violating the Cannabis Control Act (Ill. Rev. Stat. 1977,ch. 56