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July 6, 2001

PRESIDING JUSTICE STEIGMANN delivered the opinion ofthe court:

In November 1999, a jury convicted defendant, Tyrek S.Garry, of home invasion, armed robbery, and armed violence (720ILCS 5/12-11, 18-2(a), 33A-2 (West 1998)). In January 2000, thetrial court sentenced him to an extended-term of 45 years inprison for the armed violence conviction, based on his priorClass 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 yearsin prison for the armed robbery conviction, with all sentences torun concurrently. The court also ordered that defendant serve85% of his sentence, pursuant to the truth-in-sentencing provision set forth in section 3-6-3(a)(2)(iii) of the Unified Code ofCorrections (Unified Code) (730 ILCS 5/3-6-3(a)(2)(iii) (West1998)), upon agreeing with the jury's finding that defendant hadinflicted great bodily harm upon the victim. Later that month,defendant filed a motion to reconsider his sentence, which thecourt denied.

Defendant appeals, arguing that (1) the State failed toprove beyond a reasonable doubt that he inflicted great bodilyharm upon the victim; (2) the truth-in-sentencing provision setforth in section 3-6-3(a)(2)(iii) of the Unified Code (730 ILCS5/3-6-3(a)(2)(iii) (West 1998)) is unconstitutional pursuant toApprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435,455, 120 S. Ct. 2348, 2362-63 (2000); (3) the extended-termsentencing provision set forth in section 5-5-3.2(b)(1) of theUnified 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 at455, 120 S. Ct. at 2362-63; and (4) the trial court erred byconsidering an improper aggravating factor in sentencing him. Weaffirm.

In July 1999, the State charged defendant with homeinvasion (count I), armed robbery (count II), and armed violence(count III). Count III alleged that defendant committed theoffense 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 aggravatedbattery when he] intentionally and without legal justificationstruck R.A. on the face with the handgun, thereby causing greatbodily harm to [her]."

At defendant's November 1999 trial, R.A. testified thataround 5:15 a.m. on July 11, 1999, she awakened to find threemasked men in her apartment. The intruders, one of whom R.A.later identified as defendant, tried to intimidate R.A. intogiving them money and drugs by opening and closing the slides ontheir automatic pistols and pointing the weapons at her. WhenR.A. told them she did not have any money, defendant and his co-defendant, Brandon Pugh, began beating the left side of her headand hip with their weapons. R.A. stated that they hit her in thehead so many times that she "actually saw a vision of JesusChrist on the wall." Pugh continued to beat R.A. with his gun,and with the help of the third intruder, held her down whiledefendant straddled her. Defendant then put one of his handsaround R.A.'s throat and choked her so hard that she gasped forair, urinated on herself three times, and started menstruating. The beating continued for about 30 minutes, until police officersarrived 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 officerswith their investigation on July 11, 1999, she drove herself tothe emergency room, where doctors x-rayed her head and sutured alaceration 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 andthigh were bruised and swollen. At the time of defendant'strial, R.A. still had a "big round circle" on her left hip and ascar from the laceration. As a result of R.A.'s struggle withher attackers, she was unable to hold one of her hands steady.

Eric Waggoner, a Decatur police officer, testified thataround 5:30 a.m. on July 11, 1999, in response to a disturbancecall, he approached R.A.'s apartment door. After announcing thathe was a police officer, he heard a woman screaming for help. Hethen 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 sideof her face and a severe, 10-inch-wide bruise on her left upperthigh. About 20 minutes after entering R.A.'s apartment,Waggoner drove R.A. to the location where other officers hadapprehended defendant, and R.A. identified him as one of herattackers.

On this evidence, the jury convicted defendant on allcounts.

In January 2000, the trial court conducted a sentencinghearing. Milton Pozo, an emergency room physician, testifiedthat R.A.'s injuries consisted of the following: (1) a quarter-inch-long laceration near her left eyebrow, which required threeor four sutures, (2) bruises to both eyelids, (3) a mild hemorrhage in her left eye, and (4) a 10-inch-wide bruise on her leftthigh. Pozo opined that R.A. did not sustain any "major injuriesto her functioning or well-being." Defendant, his girlfriend,and his maternal grandmother testified in his behalf. The courtalso considered the presentence report, which showed that (a)defendant was 24 years old at the time of the incident; (b) hehad prior juvenile convictions; (c) in 1994, he was convicted ofhome invasion, a Class X felony; and (d) he committed the presentoffenses seven months after being released from prison. Afterconsidering the evidence, defendant's statement, and counsel'sarguments, the court sentenced defendant as stated. Defendantlater filed a motion to reconsider his sentence, which the courtdenied.

This appeal followed.

Defendant first argues that the State failed to provehim guilty of aggravated battery (which served as the predicatefelony for armed violence) because the State did not prove thathe inflicted great bodily harm upon R.A.. In support of thisargument, defendant cites the following: (1) R.A.'s injuries,which consisted of a "small laceration and some bruises," did notconstitute "great bodily harm"; (2) R.A. did not go to theemergency room immediately following the attack; (3) the treatment she received at the emergency room was "simple"; (4) she wasnot 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 thatR.A. suffered great bodily harm, (1) his armed violence conviction cannot stand; and (2) the trial court erred by requiring himto 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 wassufficient to support the jury's finding that R.A. suffered greatbodily harm. In support of its argument, the State cites thefollowing: (1) "R.A. was beaten in the head and torso with thebutts of two guns and choked for a period of 30 minutes"; (2) asa result of the beating, R.A. suffered (a) a laceration near herleft eye, which required sutures and resulted in a permanentscar, and (b) severe bruising of her hip and thigh; and (3)months after the attack, R.A. was still unable to hold one of herhands steady. We agree with the State.

Initially, we note that evidence that was not beforethe jury should not be used by a reviewing court to determine thesufficiency of the evidence on appeal. People v. Tipton, 78 Ill.2d 477, 487, 401 N.E.2d 528, 533 (1980); People v. Kluppelberg,257 Ill. App. 3d 516, 536, 628 N.E.2d 908, 923 (1993). Thus, inaddressing this issue, we will not consider Pozo's testimony atthe January 2000 sentencing hearing.

Defendant's armed violence conviction was based uponthe predicate felony of aggravated battery. See 720 ILCS 5/12-4(a), 33A-2 (West 1998). Section 12-4(a) of the Code definesaggravated battery as follows: "A person who, in committing abattery, intentionally or knowingly causes great bodily harm ***commits aggravated battery." 720 ILCS 5/12-4(a) (West 1998).

Whether the victim's injuries rise to the level ofgreat bodily harm is a question for the trier of fact. People v.Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092 (1991). In making that determination, the relevant inquiry is "not whatthe victim did or did not do to treat the injury but what injuries the victim in fact received." People v. Edwards, 304 Ill.App. 3d 250, 254, 710 N.E.2d 507, 509 (1999); see also Figures,216 Ill. App. 3d at 401, 576 N.E.2d at 1092 (whether the victim'sinjuries constitute great bodily harm is "neither dependent uponhospitalization of the victim, nor the permanency of his disability or disfigurement").

In People v. Maggette, 195 Ill. 2d 336, 353, 747 N.E.2d339, 349 (2001), the supreme court addressed a defendant's argument that the State's evidence was not sufficient to sustain hisconviction and wrote the following:

"A reviewing court will not set aside acriminal conviction on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists areasonable doubt of the defendant's guilt. When considering the sufficiency of the evidence, it is not the function of a reviewingcourt to retry the defendant. Rather, therelevant question is whether, after reviewingall of the evidence in the light most favorable to the prosecution, any rational factfinder could have found beyond a reasonabledoubt the essential elements of the crime."

Reviewing the evidence presented under the appropriatestandard of review, we conclude that a rational trier of factreasonably could have found that defendant inflicted great bodilyharm upon R.A..

Defendant next argues that the truth-in-sentencingprovision of section 3-6-3(a)(2)(iii) of the Code is unconstitutional under Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120S. Ct. at 2362-63. Specifically, he contends that section 3-6-3(a)(2)(iii) violates his right to due process and trial by jurybecause the statute does not require the State to prove to a jurybeyond a reasonable doubt that the defendant's conduct resultedin great bodily harm to the victim. We disagree.

Section 3-6-3(a)(2)(iii) of the Code requires:

"[A] prisoner serving a sentence for homeinvasion, armed robbery, aggravated vehicularhijacking, aggravated discharge of a firearm,or armed violence with a category I weapon orcategory II weapon, when the court has madeand entered a finding *** that the conductleading to conviction for the enumeratedoffense resulted in great bodily harm to avictim, shall receive no more than 4.5 daysof good[-]conduct credit for each month ofhis or her sentence of imprisonment." 730ILCS 5/3-6-3(a)(2)(iii) (West 1998).

In Apprendi, the United States Supreme Court consideredthree New Jersey statutes. One statute classified the possessionof a firearm for an unlawful purpose as a "second degree" offense. Another statute provided that a second degree offense waspunishable by imprisonment for "'between five years and 10years.'" Apprendi, 530 U.S. at 468, 147 L. Ed. 2d at 442, 120 S.Ct. at 2351, quoting N.J. Stat. Ann.