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                                                                                                           FIFTH DIVISION
                                                                                                           AUGUST 11, 2000
                                                                                                            NUNC PRO TUNC JUNE 30, 2000

1-99-0930

Following a bench trial, defendant Javier Vazquez wasconvicted of aggravated battery with a firearm and two counts ofaggravated battery and sentenced to a term of eight years inprison. On appeal, defendant contends that the State failed toprove his guilt beyond a reasonable doubt and that his sentence wasexcessive. Defendant also argues that the statute pertaining toaggravated battery with a firearm violates the single subject ruleof the Illinois Constitution.

At trial, Maceo Bedar testified that at about 10 p.m. onJanuary 12, 1998, he was walking home from a store on Albion Avenuewhen he saw a tan car with two "For Sale" signs inside the vehicle. The car slowed and stopped about ten feet from Bedar, who asked thedriver how much the car would cost. Bedar said he was far enoughaway from the car that he could see the driver without having tobend down and look through the driver's window. Bedar was notholding anything in his hands at the time.

Bedar then saw the passenger, who he identified in court asdefendant, reach across the driver and point a gun at him. Bedarlifted his right arm in front of his face. Defendant fired fiveshots, three of which hit Bedar. One shot struck Bedar in theright hand, with another in the right forearm and another goingthrough Bedar's jacket. Bedar later identified defendant topolice.

On cross-examination, Bedar stated that he was a member of theBlack P Stones gang at the time of the shooting. Bedar said he didnot reach for anything or move his hands prior to being shot. Bedar did not hear defendant or the driver speak to him before hewas shot. Bedar said he was no closer to the car than five or sixfeet.

Eugene Borowski testified that he lived near the intersectionof Bosworth and Albion Avenues on the night in question. At about10 p.m., Borowski was walking on Albion Avenue when he heard "loudtalking" and saw a man standing on the street and also saw a manthat he identified in court as defendant in the passenger seat ofa car. Borowski said defendant fired three shots and hit the manoutside the car, who was four or five feet away from the car. Borowski heard five shots fired in total.

Chicago Police Officer Joseph Lobianco testified that he andhis partner pursued defendant's car after hearing a police radioreport. A revolver was recovered from the passenger seat, and itwas later determined that the gun was loaded and had five spentrounds.

Cook County Assistant State's Attorney Athena Farmakistestified that defendant told her that Bedar approached thedriver's side of the car and defendant leaned across the driver andshot Bedar three times. Defendant said Bedar had kicked the car afew times and he thought Bedar wanted to rob them. On cross-examination, Farmakis testified that defendant did not tell herthat he fired the gun into the air. The parties stipulated thatChicago Police Detective Tony Villardita would testify thatdefendant told him that he aimed the gun in the air in an attemptto scare Bedar.

Defendant testified that on the night in question, he came outof a liquor store at Clark Street and Albion Avenue when Bedarpushed him and demanded money. Defendant refused and walked towardhis friend's car, and Bedar followed him. Defendant said Bedarcontinued to ask him for money and that Bedar kicked the car two orthree times. Defendant said Bedar put his hand inside his jacketand defendant thought Bedar was going to pull out a gun. Defendantfired his gun four times to scare Bedar and the gun was "pointedup" because he did not intend to hurt Bedar. Defendant said hetold Farmakis that Bedar had tried to rob him. The defense rested. In rebuttal, the parties stipulated that Farmakis wouldtestify that defendant did not tell her of a robbery attempt byBedar. The circuit court found that defendant was unjustified infiring at Bedar and, as previously stated, found him guilty ofaggravated battery with a firearm and two counts of aggravatedbattery. The court sentenced defendant to a term of eight years inprison.

On appeal, defendant first contends that the State failed toprove his guilt beyond a reasonable doubt. Defendant argues thatthe State did not prove that he knowingly caused harm to Bedar andalso argues that Bedar's testimony lacked credibility.

A reviewing court must determine whether, upon viewing theevidence in the light most favorable to the prosecution, anyrational trier of fact could have found the elements of the crimebeyond a reasonable doubt. People v. Gilliam, 172 Ill. 2d 484, 515(1996). It is the prerogative of the trier of fact to accept orreject as much of a witness' testimony as it chooses and to drawreasonable inferences from that testimony. People v. Kosyla, 129Ill. App. 3d 685, 701 (1984).

Pursuant to section 12-4(a) of the Criminal Code of 1961, adefendant commits aggravated battery if he or she intentionally orknowingly causes great bodily harm. 720 ILCS 5/12-4(a) (West1998). A person acts knowingly if they are consciously aware thattheir conduct is practically certain to cause great bodily harm. People v. Psichalinos, 229 Ill. App. 3d 1058, 1067 (1992). Defendant contends that he acted recklessly, but not knowingly, infiring the gun. Based on the testimony presented, however, thecircuit court reasonably could conclude defendant acted withknowledge that Bedar would be harmed. The court was free to givelittle weight to defendant's testimony that he fired into the air. See Kosyla, 129 Ill. App. 3d at 701.

Defendant argues that he fired the gun into the air and thatthe shots struck Bedar because Bedar was standing close to the car,"possibly touching" it, and that Bedar "probably had his hands atsome point on the roof of the car." The record contains noevidence to that effect, however. Instead, the State presentedtestimony by Borowski, an eyewitness, who corroborated Bedar'saccount that he was standing four to five feet from the car. Thecircuit court was free to find the testimony of Bedar and Borowskimore credible than that of defendant; that determination will notbe disturbed on appeal. The State proved defendant's guilt beyonda reasonable doubt.

Defendant next asserts that his eight-year sentence wasexcessive in light of the mitigation evidence. A court is vestedwith wide discretion in imposing a sentence and, if the sentence iswithin statutory limits, a reviewing court will not reverse absentan abuse of discretion. People v. Kyles, 303 Ill. App. 3d 338, 354(1998). The weight to be accorded each factor in aggravation andmitigation, and the resulting balance to be struck among them,depends upon the circumstances of the case. People v. Grisset, 288Ill. App. 3d 620, 635-36 (1997).

Defendant was convicted of aggravated battery with a firearmand two counts of aggravated battery, and sentenced to a term ofeight years in prison. Under section 5-8-1(a)(3) of the UnifiedCode of Corrections, the sentencing range for defendant's crime is6 to 30 years. 730 ILCS 5/5-8-1(a)(3) (West 1998). Defendant'ssentence, therefore, was only two years more than the lowest end ofthe statutory range. Moreover, the record indicates that thecircuit court expressly considered defendant's potential forrehabilitation. It is presumed that a court's sentencing decisionis based upon proper legal reasoning and in consideration of allevidence in mitigation. People v. Hughes, 259 Ill. App. 3d 172,179 (1994). The record shows no abuse of discretion.

Defendant also contends that Public Act 86-980, which createdthe offense of aggravated battery with a firearm, violates thesingle subject rule of the Illinois Constitution. Article IV,section 8, of the Illinois Constitution provides that bills shouldbe confined to one subject in order to prevent the passage oflegislation that, standing alone, may not muster the votesnecessary for enactment. Ill. Const. 1970, art. IV,