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filed:  January 29, 2002

JUSTICE STEIGMANN delivered the opinion of the court:

In June 2000, a jury convicted defendant, Roy L. Lewis,of aggravated battery of a person 60 years of age or older (720ILCS 5/12-4(b)(10) (West 2000)). The trial court later sentencedhim to five years in prison with credit for 106 days served incustody prior to sentencing.

Defendant appeals, arguing that (1) the trial courterred by tendering jury instructions that did not include therequired element of bodily harm; (2) the State failed to provehim guilty beyond a reasonable doubt; and (3) he is entitled to30 additional days of sentencing credit for time served. Becausewe agree with defendant's first argument, we reverse in part andreduce defendant's conviction to battery (720 ILCS 5/12-3 (West2000)) and remand for resentencing.

In March 2000, the State charged defendant with committing an aggravated battery in violation of section 12-4(b)(10) ofthe Criminal Code of 1961 (Code) (720 ILCS 5/12-4(b)(10) (West2000)) when he "without legal justification, knowingly madephysical contact of an insulting or provoking nature with JohnnyBrize, 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 hewas born in February 1932. At about noon on March 18, 2000,Brize drove to his rental properties located at 709 and 709 1/2North Champaign Street in Champaign. When he arrived, he noticedthat the aluminum storm door had been removed from the front of709 North Champaign and the yard was littered with broken glass. Brize then walked to the rear of 709 1/2 North Champaign andnoticed that an aluminum awning had been removed from above theback door. Brize returned to the front yard and saw a young manwalking 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 thedoor off of the house. The man said that he had found it in theyard. Brize accused the man of lying and an argument ensued. The man threw the door and awning off of the cart and started towalk away with the cart. Brize grabbed the cart and told the manthat he would not let him leave until the police arrived. In astruggle over the cart, the man shoved Brize and Brize shoved theman. The man then hit Brize on the shoulder and began walkingaway. Brize began chasing the man.

During the chase, Brize came upon a police officersitting in an unmarked car. He pointed to the man he was chasingand 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 manbefore March 18, 2000. When the prosecutor asked Brize if he sawthe man in the courtroom, Brize replied, "I don't know. It looklike it may be him. (Pointing.) I'm not for sure."

Champaign police sergeant Mark Aquino testified asfollows. Around noon on March 18, 2000, he was sitting in anunmarked car in the north employee parking lot of the Champaignpolice station. He saw a short black male wearing a green ballcap 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 easton Church Street. While Aquino was watching defendant, Brizeappeared from the same path as defendant, and approached Aquino. Brize was out of breath. He pointed down the street at defendantand asked Aquino if he would arrest defendant for him. Aquinoestimated that at that point, there was about three-fourths of ablock between himself and defendant. After Brize told Aquinowhat had happened, Aquino made a call on his radio and droveaway. He caught up with defendant, stopped him, and asked him toidentify himself. Other police officers immediately arrived, andAquino handed defendant over to them. Aquino observed an officerarrive at the scene with Brize in the backseat of his squad car. Brize was a few yards from defendant. Aquino was told by hisofficers that Brize had identified defendant.

Champaign police officer David Allen testified that onMarch 18, 2000, he was notified that Aquino was pursuing a manwearing an orange jacket and a hat and needed assistance. WhenAllen arrived at the intersection of Second Street and UniversityAvenue, he saw Aquino with a man who matched the descriptionAquino had called in. Allen identified defendant as the manAquino had apprehended.

On this evidence, the jury found defendant guilty ofaggravated battery, and the trial court sentenced him as stated. This appeal followed.

Defendant first argues that the trial court committedplain error by tendering jury instructions on aggravated batteryof a person 60 years of age or older that did not include theelement of bodily harm (720 ILCS 5/12-4(b)(10) (West 2000)). Weagree.

Section 12-4(b) of the Code contains the followingdefinition of aggravated battery:

"(b) In committing a battery, a personcommits aggravated battery if he or she:

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(10) [k]nowingly and without legal justification and by any means causes bodilyharm to an individual of 60 years of age orolder ***." 720 ILCS 5/12-4(b)(10) (West2000).

At trial, the jury received instructions on the elements of aggravated battery based on Illinois Pattern JuryInstructions 11.15 and 11.16 (Illinois Pattern Jury Instructions,Criminal, Nos. 11.15, 11.16 (4th ed. 2000) (hereinafter IPICriminal 4th Nos. 11.15, 11.16). The instructions submitted tothe jury read as follows:

"A person commits the offense of aggravatedbattery when he knowingly and by any meansmakes physical contact of an insulting orprovoking nature with another person, and theother person is an individual of 60 years ofage or older."

See IPI Criminal 4th No. 11.15[10].

"To sustain the charge of aggravatedbattery, the State must prove the followingpropositions:

First Proposition: That the defendantknowingly made physical contact of an insulting or provoking nature with [Mr. JohnnyBrize]; and

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Second Proposition: That at the timedefendant did so, [Mr. Johnny Brize] was anindividual of 60 years of age or older.

If you find from your consideration ofall the evidence that each one of these propositions has been proved beyond a reasonabledoubt, you should find the defendant guilty.

If you find from your consideration ofall the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant notguilty."

See IPI Criminal 4th No. 11.16[10].

Specifically, defendant contends that these instructions were erroneous because they did not require the State toprove that he "cause[d] bodily harm to" Brize, as required underthe definition of aggravated battery to a person over 60 years ofage. 720 ILCS 5/12-4(b)(10) (West 2000). In response, relyingon People v. Hale, 77 Ill. 2d 114, 395 N.E.2d 929 (1979), theState contends that the phrase "causes bodily harm" does notrequire the State to prove bodily harm as an element of theoffense, only that the victim was battered. We agree withdefendant.

In Hale, the Supreme Court of Illinois held thataggravated battery as defined in section 12-4(b)(6) (Ill. Rev.Stat. 1977, ch. 38, par. 12-4(b)(6)) does not require a specificfinding of bodily harm. Hale, 77 Ill. 2d at 118, 395 N.E.2d at931. (The language of section 12-4(b)(6) is the same under thecurrent statute (720 ILCS 5/12-4(b)(6) (West 2000)).) Section12-4(b)(6) states that a person commits an aggravated batterywhen that person, "[i]n committing a battery[,] *** [k]nows theindividual harmed to be a peace officer." 720 ILCS 5/12-4(b)(6)(West 2000). The question before the court was whether thereference to "the individual harmed" limited the application ofsection 12-4(b)(6) to those batteries defined as causing bodilyharm (720 ILCS 5/12-3(a)(1) (West 2000)) and excluded thosedefined as "physical contact of an insulting or provoking nature"(720 ILCS 5/12-3(a)(2) (West 2000)). Hale, 77 Ill. 2d at 117,395 N.E.2d at 931. In its analysis, the court considered theaggravated battery statute as a whole, and noted that othersubsections of the statute referred to the "person battered"(Ill. Rev. Stat. 1977, ch. 38, par. 5/12-4(b)(8)) and the "individual assaulted" (Ill. Rev. Stat. 1977, ch. 38, par. 5/12-4(b)(9)) in defining the aggravating conditions of a battery. Hale, 77 Ill. 2d at 118-19, 395 N.E.2d at 931-32. The courtconcluded that whether the legislature used the term "harmed,""battered," or "assaulted," it intended to refer to the personwho had been the victim of a battery, with no distinction betweenbatteries defined as causing bodily harm (Ill. Rev. Stat. 1977,ch. 38, par. 12-3(a)(1) (now 720 ILCS 5/12-3(a)(1) (West 2000)))or those consisting of "physical contact of an insulting orprovoking nature" (Ill. Rev. Stat. 1977, ch. 38, par. 12-3(a)(2)(now 720 ILCS 5/12-3(a)(2) (West 2000))). (The supreme court inHale considered the aggravated battery statute as it existed in1977. Section 12-4(b)(10), at issue here, was added to the Codeby the enactment of Public Act 81-763 (Pub. Act 81-763,