dissenting in part and specially concurring in part:
I respectfully dissent in part. I believe that the defendant in this cause is entitled to a new trial on the involuntary manslaughter and aggravated discharge of a firearm charges for the reasons set forth in my dissent in People v. Fornear. People v. Fornear, 283 Ill. App. 3d 171, 181-83 (1996) (Rathje, J., dissenting). I note that our supreme court has granted leave to appeal in Fornear (283 Ill. App. 3d 171, appeal allowed, 169 Ill. 2d 576 (1996)).
I agree with the majority’s conclusion that reckless conduct is a lesser included offense of aggravated discharge of a firearm. However, I disagree with the majority’s conclusion that there is no evidence in the record to support the giving of an instruction on reckless conduct in this cause. The majority quotes a portion of the defendant’s testimony and concludes, on the basis of that testimony, that "by aiming to shoot over the victim’s head, the defendant necessarily fired the gun in the direction of the victim.” 287 Ill. App. 3d at 270. The majority then concludes that the defendant therefore admitted possessing the requisite mental state for the offense of aggravated discharge of a firearm, and thus the jury could not have rationally acquitted him of that offense while finding him guilty of reckless conduct. I disagree.
The amount of evidence necessary to prove the lesser offense rather than the greater offense is described as "any,” "some,” "slight,” or "very slight.” People v. Novak, 163 Ill. 2d 93, 108-09 (1994). In his testimony, the defendant admitted firing into the air above the head of Potts and the other victims. Nowhere does the defendant admit that he fired at the victims.
"STATE’S ATTORNEY: Straight at those guys; right?
THE DEFENDANT: No, towards the air.
STATE’S ATTORNEY: Over their heads.
THE DEFENDANT: Yeah.
STATE’S ATTORNEY: You didn’t aim your gun down?
THE DEFENDANT: No.”
Whether the defendant’s firing the gun in the air, over the heads of the victims with his eyes closed, constitutes firing the gun in the direction of the victim or victims in this cause is a factual question to be resolved by the finder of fact: in this case, the jury.
I would conclude that there was some evidence in the record here from which it could be inferred that the defendant was guilty of reckless conduct and that the jury should have been instructed as to the offense of reckless conduct.
Since I would not reach the sentencing issue raised in this cause, I would offer no comment on the majority’s disposition of that issue.
Based upon the foregoing errors, I would reverse and remand this cause for a new trial.