Opinion
No. 2-12-1398
08-20-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANIEKA D. JOHNSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Kane County. No. 10-CF-2180 Honorable James C. Hallock, Judge, Presiding. JUSTICE HUTCHINSON delivered the judgment of the court.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶ 1 Held: (1) As defendant's convictions of aggravated battery with a firearm and aggravated discharge of a firearm violated the one-act, one-crime rule, we vacated the latter; (2) the trial court did not abuse its discretion in sentencing defendant to 12 years' imprisonment (on a 6-to-30 range) for aggravated battery with a firearm: despite defendant's lack of criminal history, which the court presumably considered, the sentence was justified by the seriousness of the offense and the need for deterrence. ¶ 2 In the direct appeal of her convictions of aggravated battery with a firearm (720 ILCS 5/12-3, 12-14.2 (West 2010)) and aggravated discharge of a firearm within 1,000 feet of a school (720 ILCS 5/24-1.2(a)(2), (b) (West 2010)), defendant, Anieka D. Johnson, raises two issues. The first is whether her dual convictions violate one-act, one-crime principles. The second is whether her sentence of 12 years' imprisonment for aggravated battery with a firearm is an abuse of discretion, given her hitherto unblemished record. We hold that the dual convictions violate one-act, one-crime principles and therefore vacate defendant's conviction of aggravated discharge of a firearm within 1,000 feet of a school; we affirm her 12-year sentence for aggravated battery with a firearm. We further hold that, given the exceptional risk of harm associated with defendant's use of a firearm, the sentence was not an abuse of the trial court's discretion.
¶ 3 I. BACKGROUND
¶ 4 A grand jury indicted defendant on six counts relating to an August 30, 2010, incident in which she fired two shots at an occupied vehicle. Those counts were two counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) (permanent disfigurement, personal discharge of a firearm); aggravated battery with a firearm (720 ILCS 5/12-3, 12-14.2 (West 2010)); aggravated discharge of a firearm within 1,000 feet of a school (720 ILCS 5/24-1.2(a)(2), (b) (West 2010)); aggravated discharge of a firearm into a vehicle (720 ILCS 5/24-1.2(a)(2) (West 2010)), and aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(3)(A) (West 2010)). We note that nothing in the indictment referred to more than one act of discharging a firearm. ¶ 5 Before defendant's jury trial, the State nol-prossed count V, aggravated discharge of a firearm into a vehicle, and count VI, aggravated unlawful use of a weapon. ¶ 6 In its opening statement at trial, the State said that, at about 5 p.m. on August 30, 2010, defendant was in her Ford Windstar chasing a Ford Explorer occupied with teenagers down Aurora streets. Defendant had a fully loaded 9-mm handgun with her, and, as she approached alongside the Explorer on Indian Trail Road, she "put her arm out the window, pointed that gun at the Explorer and fired not one, but two shots at that vehicle." "One of the shots hit 13-year-old Shardae Bailey, causing a bullet graze wound to her chest." ¶ 7 According to the opening statement, a group including Bailey had gone to pick up more of their friends. The vehicle ended up full beyond its seating capacity, with two passengers riding in the cargo area. At some point, the group got into a fight with other students. Not long later, the group encountered defendant, who pursued them aggressively in her minivan. Defendant pulled up alongside the Explorer, and "took [her] gun out, loaded [her] gun while she is driving, pointed [her] gun out the window and proceeded to fire shots at the people in that Ford Explorer." "Well, one of those shots hit 13-year-old Shardae Bailey, causing a graze wound to her chest." "And, after all those shots were fired, while the driver slowed that car down, as everybody was ducking, the Defendant sped ahead and cut the Explorer off, and there was then a collision." ¶ 8 The State concluded as follows:
"When you hear all the evidence that the State presents, you will be convinced that this Defendant committed the offenses of attempt first degree murder, aggravated battery with a handgun, aggravated discharge of a firearm within a thousand feet of a school.¶ 9 The State's first witness was Bailey. Her testimony was largely consistent with the State's opening statement. She was in middle school. She went with a group she knew in the Explorer to pick up more friends at Aurora West High School. On the way back, the group got into an altercation with another group. When the altercation ended, she and the others went to the home of one of the passengers. They all stayed there for about 45 minutes and then most of the group left to go to the townhouse on Old Indian Trail Road where Mekole Merrick, who was driving, lived. Merrick tried to drive the Explorer into the alley leading to her garage, but could not because "cars were coming at [them]." She pulled the Explorer out of the way and then had her brother, Davonte, drive. ¶ 10 Davonte drove the Explorer back onto Old Indian Trail. Not long after, a van began ramming the Explorer from the side. The only person in the van was the driver, a woman. ¶ 11 Davonte turned onto another street, Foran Lane, and the van followed, still ramming the Explorer. Davonte took a route that took them onto Indian Trail Road and toward the townhouse. He was driving fast. No one in the Explorer had shouted at defendant or threatened her. As the chase continued on Indian Trail, Bailey heard two gunshots. Because she did not realize initially that she had been hit, she did not know which shot hit her. Shortly after, the vehicles collided. ¶ 12 Bailey got out of the Explorer feeling "dizzy." After walking away from the scene and then returning, she was taken by ambulance to an emergency room, where she was treated and released the same day. The treating physician noted that the wound was a deep graze, about two centimeters long, to her breast. ¶ 13 Shauntiece Brown (Shauntiece), one of Bailey's older sisters, testified next. She was one of the passengers in the Explorer; her testimony was essentially consistent with Bailey's. Under cross-examination, she agreed that many of the Explorer's back windows were "privacy glass." ¶ 14 Merrick also testified; her testimony was largely consistent with that of Bailey and Shauntiece. She noted that, after the collision, her "leg was messed up." ¶ 15 Marquita Webb, who was sitting with Bailey in the Explorer's cargo area during the chase, testified, adding detail. She said that, as the Explorer came to the alleyway to the townhouse's garage, several people were standing there "with bats and stuff in their hands." After the change in drivers, and as the Explorer made one turn, Webb heard the minivan driver shout, "Y'all trying to fight little girls." The driver kept yelling at them to pull over, but they kept going. The driver then "started to show [them] like something that looked like a [blue] toolbox." The driver repeatedly used her vehicle to bump the Explorer on the side. Davonte drove the Explorer around vehicles at the corner of Elmwood Drive and Indian Trail to make a right turn onto Indian Trail. As they were driving down Indian Trail, the minivan came up alongside them and the driver pointed a gun at the Explorer and fired twice. The minivan then "zoomed" in front of the Explorer and cut them off, causing the collision. When Webb got out of the Explorer—through a window—there were people outside with bats, so she left the scene. ¶ 16 Lieutenant Nicholas Coronado of the Aurora police department testified that he had gone off duty at about 4 p.m. on the day of the incident and had gone to his home on Elmwood. At about 5 p.m., he was in his garage. He heard the sound of vehicles revving their engines and approaching from the south. Tires screeched and he heard a sound like a car crash. The engines started racing again, and Coronado walked down his driveway to try to get a view of what was happening. ¶ 17 As Coronado began walking back, he heard another crash and saw two vehicles come past his house. The vehicles were a tan SUV and a silver minivan, both with appearances consistent with the vehicles involved in the main collision. The SUV was fishtailing "like it was trying to recover from loss of control" as if in reaction to a light strike on the back portion. The minivan drove into Coronado's neighbor's yard and partway up a berm before returning to the street. Coronado called 911 to report the chase. As he watched, the SUV went around traffic stopped at the light at the intersection of Elmwood and Indian Trail—that is, it drove north in the southbound lane—and made a right turn. The minivan followed, repeating the maneuver. It was clear to Coronado that the minivan was pursuing the SUV. ¶ 18 Officer Denys Machado of the Aurora police department responded to a dispatcher report of a vehicle collision with possible shots fired. He arrested defendant after another officer identified her as the shooter. Defendant was not then carrying a gun, and no gun was in her van. ¶ 19 Officer Jennifer Hillgoth of the Aurora police department testified that she was one of the officers on the scene of the collision. When she arrived, there were at least 50 people on the scene, "yelling at each other." Another officer, Brian McGarr, testified to searching defendant's minivan and the street for about 200 feet around. He found defendant's cell phone on the front passenger seat, but did not find a gun or anything else relating to firearms. He also searched the Explorer, finding a bullet entry hole in the passenger-side rear quarter panel just above the tire and an exit hole into the cargo portion of the passenger compartment. McGarr found the bullet itself near the tailgate molding. ¶ 20 Officer Maria Frausto-Lee, an Aurora police evidence technician, testified that she was called to examine a bullet hole in the window of a vehicle parked just north of Indian Trail on a side street. The side street, Morton, was west of the intersection where the collision took place. Frausto-Lee was able to recover three fragments of the copper jacket of a bullet. Another officer testified that the distance from where the vehicle was struck by a bullet to St. Rita's elementary school was 779 feet. ¶ 21 Detective Jeremiah Shufelt testified that he had interviewed defendant while she was in custody. She told him about hearing about the earlier fight from her cousin, Khadeeja Poe. She then went looking for the people she understood to have hurt Poe's daughter. While she was talking to Poe after failing to find the people she was looking for, she saw that some of them were nearby. She drove after them and bumped her vehicle against theirs. She said that the other driver was driving aggressively. ¶ 22 Defendant further told Shufelt that, while she was driving, she had taken the gun in its case from under the front passenger seat, opened two latches, and removed the gun. The gun was not loaded, so she took the magazine from the case, put the magazine in the gun, and chambered a bullet. She then shot; she claimed that she had shot the tire in an attempt to stop the vehicle. After she fired at the other vehicle, the two vehicles collided. She got out of the passenger side of the van, went up to the Explorer, and asked "where the boy was at." ¶ 23 The police recovered defendant's gun, the case, and the magazine. The magazine, on examination, proved to be holding two rounds fewer than its maximum capacity. A firearms examiner testified that the bullets or fragments recovered at the scene matched those fired from the recovered gun. ¶ 24 Officer Ted Grommes of the Aurora police department, when asked about the mechanics of loading a semiautomatic handgun, said that loading and chambering a round is very easy to do using two hands, but difficult with one hand. He said that the person loading the gun would need to press it against a surface. ¶ 25 After the State said that it would nol-pross two traffic counts, the trial court denied defendant's motion for a directed verdict on all of the other counts. ¶ 26 Poe was defendant's first witness. On the day of the incident, she had called defendant and "told her that these grown men and these women and a bunch of kids jumped out of a truck and jumped on my daughters." Poe encountered defendant in the parking lot of an apartment complex near Indian Trail Road. The meeting was not planned, but both were reacting to the report of the fight. ¶ 27 As both were about to leave, Poe's daughter jumped out of Poe's vehicle because she saw one of the people involved in the "altercation." Defendant drove away and then called Poe about a minute later. Defendant was screaming and was saying that "they were hitting her." The call ended without either side deliberately ending it, and defendant called back about 30 seconds later. Poe, who was then driving, told defendant to make a U-turn to pull in behind Poe. As defendant made the turn, the Explorer swerved and struck defendant's minivan, causing it to spin and hit a pole. ¶ 28 Defendant testified. She said that the gun was in the van to make it inaccessible to her children. She received the call from Poe about the altercation and went looking for the people involved, ending up on Indian Trail because of a wrong turn. She saw Poe's vehicle and joined her. They then saw "the people who they were having the altercation with" in an Explorer. Defendant suggested that her group should talk to "them," but, before that could happen, Poe's daughter jumped out of Poe's car and ran toward the Explorer. People jumped out of the Explorer, then jumped back in and "took off," driving across a median to do so. ¶ 29 Defendant then started driving. She encountered the Explorer again and pulled up alongside it. It pulled away, driving onto the grass to get around other cars. She followed and pulled up alongside again and asked the driver what was going on. The driver did not respond, but swerved the vehicle toward hers, striking it on the front passenger side. The Explorer turned onto Foran, and defendant followed, trying to get side by side with it "because [she] was still trying to talk to him." The Explorer sideswiped her car again. Both vehicles turned onto Indian Trail. On Indian Trail, the Explorer was "trying to knock [her] off *** onto the curb." ¶ 30 It was at this point in the chase that defendant thought of the gun. She loaded it and "tried to shoot at the back tires, thinking that would make him stop." ¶ 31 She had seen only two people in the Explorer, in the front seat. During this drive, she was talking to Poe by cell phone. The collision occurred as she was trying to turn to go where Poe was. Asked in cross-examination about how long she had followed the Explorer, she said, "I followed the car until the car stopped tearing up my car." She admitted that the first time she tried to approach the Explorer with her vehicle she tried to block it from leaving. Defendant rested after her testimony. ¶ 32 By agreement of the parties, the trial court read the jury instructions before the parties made their closing arguments. Nothing in the instructions suggested that the jury was supposed to decide whether each of the two shots constituted a different offense. ¶ 33 In its closing arguments, the State repeatedly mentioned the two shots that defendant fired, but did not argue that each shot was a separate offense or set of offenses:
You know, Shardae Bailey, again, she was lucky because this Defendant, although her aim was off and not true, her intentions were clear that afternoon, and the intent was to kill someone inside of that car."
"[S]he had her gun out, she had it trained on the SUV, and when she got close, she open fired, not once, but twice, hitting 13-year-old Shardae Bailey.¶ 34 The State reviewed the definition of each offense and discussed how the facts applied to each proposition that it needed to prove. In arguing with respect to the proposition that defendant "[did] any act which constitute[d] a substantial step toward the killing of an individual," the State argued, "She fired two bullets from this gun at people." ¶ 35 Later, still discussing the attempted-murder charge, the State argued, "If you take that gun out, load it, chamber a round, point it directly at a person, shoot twice, you're not intending for them to live." ¶ 36 The State also argued aggravated battery with a firearm without specifically suggesting that only the shot that hit Bailey was part of that offense: "She knew exactly what she was doing when she was going to fire a gun at that car." It did, however, argue that the bullet found in the SUV was the bullet that injured Bailey. ¶ 37 When it turned to the final count, it did not argue that the shot that did not hit Bailey was the shot that it was relying on for this offense. ¶ 38 While deliberating, the jury sent several questions to the court, including questions asking about the legal definition of the word "knowingly." (The jury had been instructed that "[a] person commits the offense of aggravated battery with a firearm when he, by means of discharging a firearm knowingly causes injury to another person.") The jury found defendant not guilty of either attempted-murder count but guilty on the two remaining charges. ¶ 39 At the sentencing date, defense counsel said that he had chosen not to file a posttrial motion, and defendant agreed that counsel had discussed this with her. Defendant called family members to testify in mitigation. They testified that she was usually a peaceful person. Defendant noted particularly her complete lack of a criminal history. ¶ 40 The State argued for consecutive sentences on the basis that Bailey had suffered severe bodily injury. Beyond that, it argued that the circumstances of the offenses presented a much higher potential for harm than was inherent in the offenses by themselves. It argued that, because she did not recognize that she had consistently been the aggressor, defendant did not really show remorse. It asked for consecutive sentences of 10 and 6 years. ¶ 41 The trial court stated that it had considered all statutory factors in aggravation and mitigation, and particularly the need to deter others: "it's necessary to deter others in the community from having this type of response *** with firearms." It disagreed, however, that it could deem Bailey's wound to be serious bodily harm. It thus ruled that the sentences would be concurrent. It sentenced defendant to 12 years' imprisonment for aggravated battery with a firearm and 10 years' imprisonment for aggravated discharge of a firearm.
And as a result of those decisions that she made, her vigilanteism [sic] her thirst for revenge, we're here today. Three charges: Attempt first degree murder, aggravated battery with a firearm and aggravated discharge of a firearm within a thousand feet of a school."
¶ 42 II. ANALYSIS
¶ 43 On appeal, defendant, relying on People v. Crespo, 203 Ill. 2d 335 (2001), contends first that her dual convictions constitute plain error as a violation of the one-act, one-crime doctrine, and, second, that the sentences were an abuse of discretion in that the trial court gave too much weight to the deterrence factor, which is not individualized, while failing to give sufficient weight to defendant's complete lack of criminal history. The State acknowledges that the matter is subject to plain error review; however, it counters that, because there was no error, there was no plain error. See People v. Carter, 213 Ill. 2d 295, 299 (2004) (stating that an alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affects the integrity of the judicial process, and therefore satisfies the second prong of the plain error rule). We agree with defendant that, because the indictment and the State's presentation the of the evidence did not attempt to apportion the offenses between the two shots, the dual convictions were contrary to the one-act, one-crime doctrine and, as such, plain error. We therefore vacate defendant's lesser conviction. However, we do not agree that defendant's sentence for her remaining offense was an abuse of the trial court's discretion; given the seriousness of the offense, the court's choice to impose a sentence in the lower middle of the applicable sentencing range is not subject to reversal. ¶ 44 We start by explaining why Crespo dictates that we vacate defendant's aggravated-discharge-of-a-firearm conviction. Under the analysis in Crespo, if the State is to obtain valid separate convictions based on individual acts that are part of a group of related acts, it must present those acts to the jury as separate acts that support independent charges. See Crespo, 203 Ill. 2d at 342-45. It did not do that here. ¶ 45 In Crespo, the jury, as well as convicting the defendant of a murder, that of Maria Garcia, also convicted the defendant of "one count of armed violence, one count of aggravated battery based on intentionally or knowingly causing great bodily harm, and one count of aggravated battery using a deadly weapon, all in connection with the stabbing of Garcia's daughter, Arlene." Crespo, 203 Ill. 2d at 337. The evidence showed that the defendant had "stabbed [Arlene] three times in rapid succession, once in the right arm, and twice in the left thigh." Id. at 338. ¶ 46 On appeal to the supreme court, "[t]he State maintain[ed] *** that each act of stabbing properly constitute[d] a separate offense." Id. at 340. The court held that, although each of the victim's three stab wounds, each of which was to a separate area of the body, could have supported a conviction, this was "not the theory under which the State charged defendant, nor [did] it conform to the way the State presented and argued the case to the jury." Id. at 342. Specifically, "the counts charging defendant with armed violence and aggravated battery [did] not differentiate between the separate stab wounds," but instead "these counts charge[d] defendant with the same conduct under different theories of criminal culpability." Id. Further, the way the prosecution argued the evidence showed that its intent "was to portray defendant's conduct as a single attack." Id at 344. It concluded that, "in cases such as the one at bar, the indictment must indicate that the State intended to treat the conduct of defendant as multiple acts in order for multiple convictions to be sustained." Id. at 345. ¶ 47 The circumstances here are effectively analogous. In particular, the indictment did not meet Crespo's standard of indicating the State's intention to treat the conduct as multiple acts. Further, as in Crespo, neither the jury instructions nor the State's argument to the jury suggested apportionment. The State specifically argued that defendant's having fired two shots was evidence of her intent to kill. Thus, in arguing defendant's guilt of attempted murder, it portrayed the two shots as part of a single attack. When it went on to argue the remaining counts, it did not qualify that earlier portrayal. Thus, when, for instance, the jury considered whether defendant was knowing in her causing of injury, it could consider the entire attack. Given that the evidence suggests that the shot that hit Bailey entered the Explorer just above the wheel well, and given that defendant testified to aiming at the Explorer's tires, the jury might plausibly have needed both shots to conclude that defendant knowingly caused injury. As the Crespo court noted, the theory on appeal cannot differ from that presented to the jury. ¶ 48 The State argues that the indictment apportioned the offenses. It argues that we should read the indictment to charge the shot that hit Bailey as constituting the aggravated battery and the shot that hit the parked vehicle as constituting the aggravated discharge. It asserts that it argued the case to the jury that way as well. We do not see that apportionment in the indictment or argument. The aggravated battery count alleged that "defendant *** knowingly discharged a firearm causing any injury to Shardae Bailey." The aggravated-discharge count alleged that "defendant, while outside the vehicle located near Indian Trail and Nantucket Drive, Aurora, Illinois, discharge[d] a firearm in the direction of a vehicle she kn[ew] to be occupied, and did so within 1000 feet of the real property comprising St. Rita school." This is how one would expect alternate theories of a single act to be charged. Thus, we cannot read the indictment as giving defendant the notice required by Crespo. We have already explained why the jury had before it a theory of two shots as one composite act. The State neither charged nor tried the aggravated-battery count, the aggravated-discharge count, or, for that matter, the attempted-murder counts as based on acts distinct from one another. Therefore, only the more serious conviction can stand. See, e.g., People v. Smith, 233 Ill. 2d 1, 20 (2009). ¶ 49 We now turn to defendant's claim that her sentence was too long. A reviewing court should not disturb a sentence that is within the applicable sentencing range unless the trial court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). Reviewing courts presume that a sentence within the statutory guidelines is proper. People v. Boclair, 225 Ill. App. 3d 331, 335 (1992). ¶ 50 The sentencing range for aggravated battery with a firearm, as the State charged it here, was no less than 6, and no more than 30, years. See 720 ILCS 5/12-4.2(b) (West 2010) (classification of offense); 730 ILCS 5/5-4.5-25(a) (West 2010) (sentencing range). The sentence here was thus within the applicable range, so that we can reverse it only if the trial court abused its discretion. ¶ 51 A sentence is an abuse of discretion only if it is at great variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Stacey, 193 Ill. 2d at 210. "It is the province of the trial court to balance relevant factors and make a reasoned decision as to the appropriate punishment in each case" (People v. Latona, 184 Ill. 2d 260, 272 (1998)), and the reviewing court may not substitute its judgment for that of the trial court merely because it might weigh the pertinent factors differently (Stacey, 193 Ill. 2d at 209). We presume a sentencing court to have considered all relevant factors unless the record affirmatively shows otherwise. People v. Hernandez, 319 Ill. App. 3d 520, 529 (2001). ¶ 52 In determining an appropriate sentence, relevant considerations include the nature of the crime, the protection of the public, deterrence, and punishment, but also the defendant's rehabilitative potential. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). "The seriousness of the crime is the most important factor in determining an appropriate sentence, not the presence of mitigating factors." People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). The weight that the trial court should attribute to each factor in aggravation and mitigation depends upon the particular circumstances of the case. Kolzow, 301 Ill. App. 3d at 8. Provided that the trial court " 'does not consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors, it has wide latitude in sentencing a defendant to any term within the statutory range prescribed for the offense.' " People v. Bosley, 233 Ill. App. 3d 132, 139 (1992) (quoting People v. Hernandez, 204 Ill. App. 3d 732, 740 (1990)). ¶ 53 The sentence here was a proper exercise of the trial court's discretion. First, by arguing that the trial court gave improper weight to deterrence over defendant's previously unblemished record, defendant is necessarily arguing that we should reweigh the aggravating and mitigating factors. This we may not do. People v. Woodard, 367 Ill. App. 3d 304, 321 (2006). ¶ 54 Further, we do not deem the sentence here to be at great variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. The trial court here had to balance the unusual circumstance of a defendant with a truly flawless record against an offense the seriousness of which can scarcely be overstated. ¶ 55 Concerning the seriousness of the offense, the facts speak for themselves here. The risk to others created by this kind of vehicular chase with gunfire is patent. ¶ 56 Further, the trial court appropriately emphasized deterrence here. The facts here suggest that defendant's reaction to a family member's unfortunate involvement in a fight included a vehicle and a firearm. The trial court's sentence reflected a proper consideration of the evidence and served as a deterrence and as a protective measure to society. ¶ 57 Given these points, a sentence in the low middle of the range of allowable sentences was well within the court's discretion; the sentence reflects that appropriate weight was given to mitigating factors.
The statutory language is, "A person commits aggravated battery with a firearm when he, in committing a battery, knowingly or intentionally by means the discharging of a firearm (1) causes any injury to another person." 720 ILCS 5/12-4.2(a)(1) (West 2010).
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we vacate defendant's conviction of aggravated discharge of a firearm and its associated sentence under the one-act, one-crime doctrine but affirm her 12-year sentence for aggravated battery with a firearm. ¶ 60 Affirmed in part and vacated in part.