concurring in part and dissenting in part:
I agree with the majority that the evidence is sufficient to sustain the defendant’s conviction for unlawful possession of a controlled substance. I do not agree, however, with the majority’s separate conclusion that the State failed to prove the defendant guilty of armed violence. In my view, the evidence firmly establishes his commission of that offense as well.
A person commits armed violence when, while armed with a dangerous weapon, he commits any felony under Illinois law. 720 ILCS 5/33A — 2 (West 1992). A handgun, like the one in the defendant’s possession moments before his arrest, qualifies as a dangerous weapon under the armed violence statute. 720 ILCS 5/33A — 1(b) (West 1992).
The majority reverses the defendant’s armed violence conviction, concluding that the defendant was not guilty of that offense because he disposed of his gun when he saw the police approach. In reaching this conclusion, the majority erroneously assumes that the determinative element here is whether the defendant was armed at the precise moment of his arrest. People v. Condon, 148 Ill. 2d 96 (1992), on which the majority relies, is fundamentally different from the present case. One question in Condon was whether the defendant’s presence in a house containing numerous weapons could sustain a conviction for armed violence, and the court concluded that it could not. The defendant in that case was arrested, unarmed, by police in the kitchen of the residence, which was owned by the defendant’s brother. A subsequent search turned up more than a dozen firearms throughout the house; none of the guns, however, were located in the kitchen, where the defendant was found. The predicate felonies for the defendant’s armed violence charge alleged the delivery and possession of cocaine. This court noted that there was no evidence that the defendant used or displayed a gun during the delivery of the drug. The State argued, however, that the defendant’s presence in the house, among the weapons, while committing the possessory offense was sufficient to establish the armed violence charge. This court rejected the State’s contention:
“Were we to find the presence of guns in the house with the cocaine enough to violate the armed violence statute, such a finding would be contrary to the purpose for which the statute was enacted. Rather, we find that defendant would have had to carry a weapon on his person or alternatively to have had ‘immediate access to’ or ‘timely control over’ a weapon when the police entered to have been ‘otherwise armed’ for purposes of the statute.” Con-don, 148 Ill. 2d at 110.
A later decision, People v. Harre, 155 Ill. 2d 392 (1993), makes clear that a defendant may be guilty of armed violence even though he is not in actual physical possession of a weapon at the exact moment of his arrest. The defendant in Harre was arrested while he was standing next to the half-open window of an automobile, which held two guns on its front seat. This court found Condon distinguishable and concluded that the defendant was guilty of armed violence, predicated on an underlying drug offense. The court stated:
“[T]he determination of whether a defendant is armed is not made at the moment of arrest. Rather, armed violence occurs if a defendant commits a felony while having on or about his person a dangerous weapon or if a defendant is otherwise armed. We would completely eviscerate the deterrent purpose of the armed violence statute if we were to require police officers to wait to announce their presence and effect an arrest until a defendant’s access and control over a readily available weapon had ripened into the temptation to take actual physical possession, which would invite rather than deter violence.” (Emphasis in original.) Harre, 155 Ill. 2d at 401.
In the case at bar, the defendant threw away his weapon only after he became aware of the officers’ approach. The evidence thus showed that the present defendant, unlike the defendant in Condon, had immediate access to or timely control over a weapon immediately before his arrest. Under these circumstances, the defendant’s conviction for armed violence should be affirmed.
The majority further suggests, however, that a conviction for armed violence would be inconsistent with the defendant’s peaceful abandonment of his gun. I do not agree. The defendant’s decision to throw away the weapon may be considered in mitigation at sentencing; it does not alter the nature of his offense. The mere possession of a weapon at the time of the commission of the underlying offense is sufficient to sustain a conviction for armed violence, and a defendant may be guilty of armed violence even though he did not use the weapon. As this court explained in People v. Alejos, 97 Ill. 2d 502, 508 (1983):
“The two essential elements of armed violence are being armed with a dangerous weapon and committing a felony, and while they must coincide, the mere presence of a weapon of the proscribed character is sufficient; the defendant need not actually use the weapon in the commission of the felony (People v. Haron (1981), 85 Ill. 2d 261, 266-68). The presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistance.”
The same potential danger existed here, at least until the defendant decided to abandon his weapon. There was in this case the necessary convergence between the defendant’s possession of a dangerous weapon and his commission of the predicate felony, and I would therefore conclude that the evidence is sufficient to sustain the defendant’s conviction for armed violence.
JUSTICES FREEMAN and McMORROW join in this partial concurrence and partial dissent.