Docket No. 90969–Agenda 14–November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								JOSHUA T. DAVIS, Appellant.

Opinion filed January 25, 2002.

	JUSTICE McMORROW delivered the opinion of the court:

	Defendant Joshua T. Davis was found guilty of armed violence

(720 ILCS 5/33A–2 (West 1992)), aggravated battery (great

bodily harm) (720 ILCS 5/12–4 (West 1998)), and battery (720

ILCS 5/12–3 (West 1998)), after it was stipulated at a bench trial,

in the circuit court of Henry County, that, on July 2, 1998,

defendant shot BBs from a Crossman .177-caliber pellet/BB gun

at Matthew Mulder and Cody Junior. Although Mulder sustained

only minor injuries, Junior lost his left eye. The trial court found

that the pellet/BB gun used by defendant was a category I

dangerous weapon within the meaning of the armed violence

statute. (720 ILCS 5/33A–1(b) (West 1992)). Accordingly, the

armed violence offense was a Class X felony for which defendant

was sentenced to the minimum term of six years’ imprisonment.

Defendant was also sentenced to a concurrent jail term of 364 days

on the simple battery conviction and was ordered to pay

restitution.

	On appeal, a divided court upheld the convictions and

sentences. 318 Ill. App. 3d 893. We granted defendant’s petition

for leave to appeal. 134 Ill. 2d R. 651(a).

	The narrow issue before this court is one of first impression.

We are asked to determine whether a pellet/BB gun, of the sort

used in this case, is a dangerous weapon within the meaning of the

armed violence statute.

ANALYSIS

	At the time defendant committed the acts which led to his

conviction, the armed violence statute provided as follows:

			“A person commits armed violence when, while armed

with a dangerous weapon, he commits any felony defined

by Illinois Law.” 720 ILCS 5/33A–2 (West 1992).1

	The legislature defined the term “dangerous weapon” in

section 33A–1. Under that section,“[a] person is considered armed

with a dangerous weapon *** when he carries on or about his

person or is otherwise armed with a category I or category II

weapon.” 720 ILCS 5/33A–1(a) (West 1992). A category I

weapon is defined as “a pistol, revolver, rifle, shotgun, spring gun,

or any other firearm, sawed-off shotgun, a stun gun or taser as

defined in paragraph (a) of Section 24–1 of this Code, knife with

a blade of at least 3 inches in length, dagger, dirk, switchblade

knife, stiletto, or any other deadly or dangerous weapon or

instrument of like nature.” 720 ILCS 5/33A–1(b) (West 1992). A

category II weapon is defined as “a bludgeon, blackjack, slungshot,

sand-bag, sand-club, metal knuckles, billy or other dangerous

weapon of like character.” 720 ILCS 5/33A–1(c) (West 1992).

	In addition to being charged with armed violence, defendant

was charged with two counts of aggravated battery with a firearm,

one count of aggravated battery (great bodily harm), and one count

of battery. Prior to trial, defense counsel moved to dismiss the

counts charging armed violence and aggravated battery with a

firearm, arguing that the device used by defendant was not a

“firearm” as defined in the Firearm Owners Identification Card Act

(430 ILCS 65/1.1 (West 2000)). The State opposed the motion,

arguing that the device used by defendant, although used to fire

BBs, had the capacity to fire tubular pellets and, therefore, was a

firearm. See People v. Green, 50 Ill. App. 3d 980 (1977).

	The trial court initially granted defendant’s motion, dismissing

the counts charging armed violence and aggravated battery with a

firearm. The court found that defendant used a “Crossman 357

model pellet/BB pistol which discharges ammunition by expulsion of compressed gas from a CO2 cylinder” and that “the ammunition

used by defendant was a globular projectile (a BB), .177 calibre

and the weapon had a maximum velocity of 500.2 feet per second.”

Although the weapon was also capable of firing a tubular projectile

of the same caliber, the trial court concluded that the device used

by defendant was not a firearm. Upon reconsideration, however,

the court reinstated the armed violence count, finding that the

device, though not a firearm, came under the statutory clause “a

dangerous weapon or instrument of like character” in that it was

“like a firearm.”

	On appeal, two justices agreed with the trial court that

defendant possessed a category I dangerous weapon in that the

device, though not a firearm, came within the scope of the “any

other dangerous weapon or instrument” clause. One justice

dissented in part. Applying the doctrine of ejusdem generis, the dissenting justice found that the clause at the end of the category

I definition could not be interpreted as encompassing firearm-like

weapons such as the pellet/BB gun in this case. The dissenting

justice, instead, would have found defendant guilty of armed

violence with a category II weapon, holding that the pellet/BB gun

was of “like character” to a slung-shot. 318 Ill. App. 3d at 898

(Homer, P.J., concurring in part and dissenting in part).

	Defendant contends that he was wrongly convicted of armed

violence because the pellet/BB gun he used to commit an

aggravated battery on Cody Junior was not a “dangerous weapon”

within the meaning of the armed violence statute. Defendant argues

that the trial and appellate courts erred when they found that the

clause “any other deadly or dangerous weapon or instrument of

like nature,” at the end of the definition of a category I weapon,

could be interpreted to encompass the pellet/BB gun he used.

Defendant also denies that the pellet/BB gun comes within the

scope of the category II definition.

	Whether the trial and appellate courts have correctly

interpreted the provisions of the armed violence statute is a

question of law, which this court reviews de novo. In re D.D., 196 Ill. 2d 405 (2001). Our purpose when construing a statute is to

ascertain and give effect to the intent of the legislature. People v. Latona, 184 Ill. 2d 260, 269 (1998). Courts should consider the statute in its entirety, keeping in mind the subject it addresses and

the legislature’s apparent objective in enacting it. Gill v. Miller, 94 Ill. 2d 52, 56 (1983). The most reliable indicator of legislative

intent is the language of the statute, which, if plain and

unambiguous, must be read without exception, limitation, or other

condition. People v. Lavallier, 187 Ill. 2d 464, 468 (1999); People v. Robinson, 172 Ill. 2d 452, 457 (1996). Moreover, criminal or penal statutes are to be strictly construed in favor of the accused,

and nothing should be taken by intendment or implication beyond

the obvious or literal meaning of the statute. People v. Laubscher, 183 Ill. 2d 330, 337 (1998); People v. Woodard, 175 Ill. 2d 435, 444 (1997); People v. Shinkle, 128 Ill. 2d 480, 486 (1989).

	Applying these principles to the present case, we have

carefully examined the statutory definition of a category I weapon

to determine whether the pellet/BB gun used by defendant in this

case properly falls within its parameters. We find that it does not.

	In defining a category I weapon, the legislature specifically

named several weapons–pistol, revolver, rifle, shotgun, spring gun,

sawed-off shotgun, stun gun or taser, knife with a blade of at least

three inches in length, dagger, dirk, switchblade knife, and stiletto.

Pellet and BB guns are not specifically referred to in this list of

weapons and, consequently, are not per se dangerous weapons. People v. Ptak, 193 Ill. App. 3d 782, 785 (1990) (any weapon specifically listed in the definition is considered to be a per se dangerous weapon). However, in addition to individually naming

certain weapons, the provision also uses two inclusive clauses–“any

other firearm” and “any other deadly or dangerous weapon or

instrument of like nature.” We will address each clause separately.

	The first clause, “any other firearm,” comes in the middle of

the provision and at the end of a list of devices generally

recognized as “firearms.” The lower courts found that the

pellet/BB gun used by defendant did not fit within this clause

because it was not a “firearm.” We agree.

	In section 2–7.5 of the Criminal Code of 1961 (720 ILCS

5/2–7.5 (West 2000)), the legislature, in reference to “firearms,”

states:

			“Except as otherwise provided in a specific Section,

‘firearm’ has the meaning ascribed to it in Section 1.1 of

the Firearm Owners Identification Card Act.”

	The Firearm Owners Identification Card Act (430 ILCS 65/1.1

(West 2000)) defines “[f]irearm” as “any device, by whatever name

known, which is designed to expel a projectile or projectiles by the

action of an explosion, expansion of gas or escape of gas;

excluding, however: (1) any pneumatic gun, spring gun, paint ball

gun or B-B gun which either expels a single globular projectile not

exceeding .18 inch in diameter and which has a maximum muzzle

velocity of less than 700 feet per second or breakable paint balls

containing washable marking colors.”

	At the same time, the Air Rifle Act (720 ILCS 535/0.01 (West

2000)) defines “[a]ir rifle” as “any air gun, air pistol, spring gun,

spring pistol, B-B gun, paint ball gun, pellet gun or any implement that is not a firearm which impels a breakable paint ball containing washable marking colors or, a pellet constructed of hard plastic,

steel, lead or other hard materials with a force that reasonably is

expected to cause bodily harm.” (Emphasis added.) 720 ILCS

535/1 (West 2000).

	Reading these statutes together, it is reasonable to assume that

the legislature did not view BB guns, pellet guns and paint ball

guns as “firearms” and, consequently, did not intend these devices

to be included under the clause “any other firearm” in the armed

violence provision. See Harvel v. City of Johnston City, 146 Ill. 2d 277, 287 (1992) (“ ‘It is assumed that whenever the legislature

enacts a provision it has in mind previous statutes relating to the

same subject matter. *** Thus, they should all be construed

together’ ”), quoting 2A N. Singer, Sutherland on Statutory

Construction §51.02, at 453 (Sands 4th ed. 1984). Thus, we

conclude, as the trial and appellate courts did, that the CO2 powered pellet/BB gun, which had the capacity to fire .177-caliber

pellets or BBs at a velocity under 700 feet per second, was not a

“firearm” and, accordingly, could not be included in the “any other

firearm” clause of the category I definition of a dangerous weapon.

	The question, then, is whether the pellet/BB gun fits within the

second clause, “any other deadly or dangerous weapon or

instrument of like nature,” as the lower courts found. On this point, we disagree with the lower courts. Applying the doctrine of

ejusdem generis and the last antecedent rule, we find that the pellet/BB gun did not come within the scope of this clause and,

consequently, was not a category I weapon as defined by the armed

violence statute.

	The doctrine of ejusdem generis provides that, when a statutory clause specifically describes several classes of persons or

things and then includes “other persons or things,” the word

“other” is interpreted as meaning “other such like.” Farley v. Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975), quoting People v. Capuzi, 20 Ill. 2d 486, 493-94 (1960). See also People v. Rutledge, 104 Ill. 2d 394, 397 (1984) (acknowledged that, pursuant to doctrine of ejusdem generis, the clause “any other dangerous or deadly weapon,” as used in statute defining the

offense of unlawful use of weapons, was not intended to include

firearms), quoting People v. Sheldon, 322 Ill. 70, 73 (1926). The fundamental principle of statutory construction known as the last

antecedent doctrine provides that relative or qualifying words or

phrases in a statute serve only to modify words or phrases which

are immediately preceding. They do not modify those which are

more remote. McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 511-12 (1998); In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 169 (1995); People v. Bartlett, 294 Ill. App. 3d 435, 440 (1998)

	In the present case, when defining category I weapons, the

armed violence statute begins by specifically listing firearm-type

weapons by various commonly recognized names, followed by the

clause “any other firearm.” The definition then goes on to

specifically include “sawed-off shotgun, a stun gun or taser as

defined in paragraph (a) of Section 24–1 of this Code, knife with

a blade of at least 3 inches in length, dagger, dirk, switchblade

knife, stiletto.” The concluding phrase, “any other deadly or

dangerous weapon or instrument of like nature,” comes at the end

of the list of blade-type weapons. Applying the doctrine of ejusdem generis in conjunction with the last antecedent rule, we find that the phrase “any other deadly or dangerous weapon or instrument

of like nature” was intended to refer only to weapons or

instruments “such like” the class of blade-type weapons which immediately preceded the clause in the provision, i.e., weapons or instruments that are sharp and have the ability to cut or stab. We

do not believe that the clause “any other deadly or dangerous

weapon or instrument of like nature” was intended to modify all of

the named weapons and, thus, was not intended to include BB

guns, pellet guns, paint ball guns or any other weapons, which are

not firearms, but are of like nature to firearms.

	We take notice that the armed violence statute has been in

effect since 1967, when it was enacted “ ‘to respond emphatically

to the growing incidence of violent crime.’ ” People v. Alejos, 97 Ill. 2d 502, 507-08 (1983), quoting People v. Graham, 25 Ill. App. 3d 853, 858 (1975). The General Assembly, concerned with the

possession of weapons during the commission of felonies (People v. Donaldson, 91 Ill. 2d 164, 170 (1982)), adopted the armed violence statute to “ ‘discourage those who contemplate a

felonious act beforehand from carrying a weapon when they set

forth to perform the act.’ ” People v. Drakeford, 139 Ill. 2d 206, 211 (1990), quoting Alejos, 97 Ill. 2d at 509. Our research has revealed a number of cases in which BB guns were used in the

course of a crime. See People v. Johnson, 323 Ill. App. 3d 284 (2001) (metal BB gun used to threaten and strike rape victim was

a dangerous weapon within the meaning of the offense of armed

robbery); People v. Williams, 315 Ill. App. 3d 22 (2000) (metal pellet gun used to hit decedent on the head); People v. Paul, 304 Ill. App. 3d 404 (1999) (BB gun used in armed robbery); People v. de la Fuente, 92 Ill. App. 3d 525, 536 (1981) (pellet gun used as a bludgeon was per se dangerous weapon for purposes of armed robbery); People v. Greer, 53 Ill. App. 3d 675 (1977) (unloaded gas pellet pistol used); People v. Hill, 47 Ill. App. 3d 976 (1977) (unloaded, uncocked metal air pistol used to intimidate victim of

robbery; although not a dangerous weapon per se, could be used as dangerous weapon and supported conviction for armed

robbery); People v. Ratliff, 22 Ill. App. 3d 106 (1974) (.22-caliber starter pistol used in robbery); People v. Trice, 127 Ill. App. 2d 310 (1970) (same). In none of these cases were defendants ever

charged with armed violence.

	In addition, in cases where armed violence has been charged

and the defendant was armed with a weapon which was not specifically listed in the statute, reliance was placed on the “any

other dangerous weapon or instrument of like nature” clause

because the weapon was of like nature to the blade-type weapons

listed. See People v. Ptak, 193 Ill. App. 3d 782 (1990) (broken beer bottle); People v. Thornton, 145 Ill. App. 3d 669 (1986) (broken beer bottle); People v. Chrisos, 142 Ill. App. 3d 747 (1986) (sharp piece of glass); People v. Samier, 129 Ill. App. 3d 966 (1985) (knife with blade less than three inches); People v. Hall, 117 Ill. App. 3d 788, 803 (1983) (knife of unidentified length). Thus, our construction of the armed violence statute–that

BB guns and pellet guns should not be interpreted as coming

within the scope of the “any other deadly or dangerous weapon or

instrument of like nature” clause and, thus, are not category I

dangerous weapons within the meaning of the armed violence

statute–appears to comport with past practice.

	Although we read the statute as not including pellet and BB

guns, we note that, even if there were some ambiguity, we would

be constrained by law to interpret this criminal statute in a lenient

manner. People ex rel. Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976) (where a criminal statute is capable of two constructions,

courts must adopt the one that operates in favor of the accused).

The rule of lenity is particularly applicable where the criminal

statute operates as an enhancement provision. People v. Alejos, 97 Ill. 2d 502, 512 (1983); People v. McCarty, 94 Ill. 2d 28, 34-35 (1983). See also People v. Donaldson, 91 Ill. 2d 164, 169 (1982); People v. Hobbs, 86 Ill. 2d 242, 246 (1981); People v. Haron, 85 Ill. 2d 261 (1981). The armed violence statute is an enhancement

provision which “enhances the severity of the underlying felony and

upgrades the punishment available for it to Class X.” Alejos, 97 Ill. 2d at 508. See also People v. Donaldson, 91 Ill. 2d 164, 168 (1982). The statute mandates a severe penalty, not only to punish

the criminal, but to deter the use of weapons in the commission of

a felony, thus affording society greater protection. Alejos, 97 Ill. 2d at 509. Because of the nature of the armed violence statute, any

ambiguity should be appropriately resolved in defendant’s favor.

	In sum, we find, based on established principles of statutory

construction, that BB guns and pellet guns of the sort used in the case at bar are not dangerous weapons within the meaning of the

armed violence statute.

	For the same reasons, neither was the pellet/BB gun used by

defendant a category II dangerous weapon, as the dissenting

appellate justice found. A category II dangerous weapon is defined

in the statute as “a bludgeon, blackjack, slungshot, sand-bag, sand-

club, metal knuckles, billy or other dangerous weapon of like

character.” 720 ILCS 5/33A–1(c) (West 1992). Again, pellet and

BB guns are not specifically named in this listing. Furthermore,

although a metal pellet/BB pistol might be capable of being used as

a bludgeon, it is not typically identified as such and, under the

doctrine of ejusdem generis, cannot be interpreted to be “of like character” to the bludgeon-type weapons included in the category

II listing.

CONCLUSION

	For the reasons stated, we find that defendant was not guilty

of committing armed violence when he discharged the pellet/BB

gun and struck Cody Junior. We vacate defendant’s conviction for

armed violence.

Conviction vacated.