author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KATHY JOANNE BENNETT, Defendant-Appellant.
    Second District
    No. 2—89—0695
    Opinion filed December 5, 1991.
    Rehearing denied January 10,1992.

      G. Joseph Weller, Kim M. DeWitt, and Sherry R. Silvern, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Kathy Joanne Bennett, was convicted of two separate counts of felony murder. A jury found defendant guilty of the offense of first degree murder resulting from the commission of aggravated battery, causing great bodily harm (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3)), and first degree murder resulting from the commission of an aggravated battery, causing bodily harm to a person 60 years of age or older (Ill. Rev. Stat. 1987, ch. 38, par. 9— 1(a)(3)). Defendant was found not guilty of five other charges, three of which alleged that defendant knowingly created a strong probability of death or great bodily harm under section 9 — 1(a)(2). (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2).) Defendant was sentenced to 55 years’ imprisonment in the Department of Corrections.

On appeal, defendant presents the following issues for review: (1) whether her verdicts were legally inconsistent; (2) whether aggravated battery is a valid predicate to felony murder; (3) whether she was proved guilty beyond a reasonable doubt; (4) whether the jury received improper instructions regarding the substantive use of prior testimony in a criminal case; (5) whether she was denied effective assistance of counsel; (6) whether certain gruesome slides, photographs, body charts, and videotapes were cumulative and prejudicial; (7) whether the trial court relied on improper factors in aggravation of her sentence; and (8) whether she was improperly convicted of and sentenced for committing two crimes where the facts show only one criminal act. We affirm in part, vacate in part, and remand the cause for resentencing.

At approximately 9 a.m., November 2, 1988, the body of 80-year-old Carrie Duncan (Duncan) was discovered near a road in southeastern Lee County. Carrie Duncan was 4 feet 10 inches tall and weighed approximately 100 pounds. She received multiple stab wounds to her abdomen, chest, and back. She also received multiple blows to the head, including both sides of the forehead, the ears, and the back of the head under the scalp. Her death was caused by blood loss, due to a stab wound to the liver, and blunt trauma to the head, resulting in swelling of the brain and hemorrhaging around the brain. Her body was in a grassy area surrounded only by grain bins and utility poles, approximately 150 to 200 feet off the main road. Her purse rested 60 feet south of her body. A broken dental plate and a common serrated steak knife were in the same area as the purse.

The facts below provide a brief history of this case. Additional facts will be provided in order to understand the individual issues as they are discussed.

During the evening of November 1, 1988, defendant and her boyfriend, Calvin Pierce, drank beer together at two different taverns. At closing time, approximately 1 a.m., they left in a truck driven by Pierce. Pierce suggested that they pick up the victim, Carrie Duncan, in order to scare her. Pierce and Duncan had a relationship lasting many years where Duncan lent Pierce money and bought him clothes, shoes, and food in exchange for help with her gardening, shopping and home maintenance. Defendant also testified that Duncan and Pierce were lovers. Pierce’s desire to scare Duncan arose from his anger resulting from Duncan’s harassment concerning a debt Pierce owed Duncan for money lent to purchase an automobile. Defendant agreed to the plan, asked Pierce what to do, and climbed in the back of the truck with a six-pack of beer. There is evidence that Pierce asked Duncan to join him for breakfast at Ziggys, a place they frequented together. Duncan agreed and stepped into the truck with Pierce. After driving for a while, Pierce pulled off the main road. When the truck stopped, Pierce knocked on the rear of the truck and told defendant that Duncan had been “bitching” at him. Defendant climbed out of the back and asked Duncan, “[W]hat’s your problem lady?” Defendant’s statement to the police related that Pierce pushed Duncan out of the truck. Pierce told defendant to get Duncan’s purse and look through it. Subsequently, Pierce severely beat and stabbed Duncan. Defendant denies participation in the attack.

On the morning of November 2, 1988, in response to a request by the police, defendant and Pierce drove themselves to the fire department for an interview about the circumstances surrounding Duncan’s death. Defendant signed a Miranda waiver and provided a taped statement.

On February 15, 1989, defendant pleaded guilty to a charge alleging she knowingly caused death to Duncan by kicking her in the head. Defendant subsequently withdrew this plea at a hearing on April 5, 1989.

Defendant first contends that her verdicts were legally inconsistent and must be reversed. Defendant was found not guilty of murder based on acts which “create a strong probability of death or great bodily harm” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2)) and was found guilty of felony murder based on the commission of an aggravated battery which “causes great bodily harm” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3)). Defendant explains that an individual cannot be guilty of “causing] great bodily harm” and at the same time be exonerated on charges of “creating] a strong probability of death or great bodily harm.” We do not agree.

The general rule is that legally inconsistent verdicts arising out of the same set of facts necessarily involve the fact finder’s conclusion that the same essential element of the crime is found both to exist and not to exist. (People v. Frias (1983), 99 Ill. 2d 193, 198.) For example, legal consistency requires that when a determination is made that a mental state of intentional conduct exists, then a mental state of unintentional conduct with respect to the same crime cannot also be found to exist. (People v. Hoffer (1985), 106 Ill. 2d 186, 195.) To find otherwise would mean that an individual simultaneously acted intentionally and unintentionally, and this is not a legal possibility.

Defendant seeks to apply the reasoning in Frias and Hoffer to compel a reversal. In Frias, the court held that a conviction of armed violence based on having committed murder while armed cannot stand in the face of an acquittal on the predicate offense of murder. (Frias, 99 Ill. 2d at 204.) An individual cannot be found guilty of having committed murder while armed if that person has not committed a murder. In Hoffer, the court held that verdicts are inconsistent when they label the same murder as both intentional and involuntary. (Hoffer, 106 Ill. 2d at 195.) In these cases, the trial verdicts were improper because they found that certain essential elements of a crime both exist and do not exist.

The facts in the present case are distinguishable. They do not involve mutually inconsistent findings. A case factually on point is People v. Sandy (1989), 188 Ill. App. 3d 833.

In Sandy (188 Ill. App. 3d 833), the defendant was charged and convicted in the same manner as defendant here. Sandy was acquitted of first degree murder under section 9 — 1(a)(2) and convicted of felony murder under section 9 — 1(a)(3) (Ill. Rev. Stat. 1961, ch. 38, pars. 9 — 1(a)(2), (a)(3)). The conviction was affirmed on appeal. The court reasoned that “a jury may acquit a defendant on one or more counts on a multicount indictment in the belief that the count on which it convicted the defendant will provide sufficient punishment.” (Sandy, 188 Ill. App. 3d at 845.) While agreeing with the outcome in Sandy, we do not apply its reasoning here. The “sufficient punishment” reasoning makes more sense in cases where the offenses charged are different and may result in different sentences (see People v. Robinson (1986), 147 Ill. App. 3d 131 (where the charges were theft and possession of a stolen vehicle); People v. Dawson (1975), 60 Ill. 2d 278 (where the charges involved murder and armed robbery)) rather than instances like the present case where the crimes charged are “murder” or “murder,” and the potential sentence is identical.

Instead, we apply a form of reasoning that examines the elements of section 9 — 1(a)(2) murder with the elements of section 9— 1(a)(3) murder in order to determine whether a conviction of one but not the other would necessitate finding an essential element to both exist and not exist resulting in a reversible inconsistency. Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(2), (a)(3).

Whether a particular act creates a “strong probability” of death or great bodily harm according to section 9 — 1(a)(2) is a question of fact to be decided by the fact finder. (People v. Melind (1989), 179 Ill. App. 3d 836, 843; see also People v. Palmer (1979), 76 Ill. App. 3d 1014.) The language of section 9 — 1(a)(2) was adopted because it was the

“[plainest description of the situation which lies between the ‘practical certainty’ of [intentional homicide under section 9 — 1—(a)(1)], and the ‘likely cause’ and ‘substantial and unjustifiable risk’ of the involuntary manslaughter provision [section 9 — 3 using ‘recklessly’ as defined in section 4 — 6].” (Ill. Ann. Stat., ch. 38, par. 9 — 1(a)(2), Committee Comments, at 18 (Smith-Hurd 1979).)

According to Melind, the" essential element for a conviction under section 9 — 1(a)(2) is that the defendant must know that an act creates a strong probability of death or great bodily harm. (Melind, 179 Ill. App. 3d at 844.) Although its own terms are used for its definition, the focus is on the requisite mental state. Thus, to be inconsistent, a felony murder conviction must possess a conflicting mental state requirement.

Generally, a felony murder charge under section 9 — 1(a)(3) of the Criminal Code of 1961 does not require a showing of intent or knowledge. The accepted rule is “[a] felon is responsible for those deaths which occur during a felony and which are the foreseeable consequence of his initial criminal acts.” (People v. Graham (1985), 132 Ill. App. 3d 673; see also People v. Hickman (1974), 59 Ill. 2d 89.) According to Graham, in the context of a murder committed during a felony, “it is immaterial whether the killing is intentional or accidental, or is committed by a confederate without the connivance of the defendant, or even by a third person trying to prevent the commission of the felony.” Graham, 132 Ill. App. 3d at 679.

Fortuitously, in the present case the predicate felony for the section 9 — 1(a)(3) conviction is that an aggravated battery was committed involving (1) a knowing infliction of bodily harm to an individual of 60 years of age or older and (2) an intentional infliction of great bodily harm. Thus, as opposed to other felony murders, an element of intent or knowledge must be found in order to establish that defendant caused the harm in a felony murder predicated upon the commission of an aggravated battery. The question then becomes whether the existence of the necessary mental state of a section 9 — 1(a)(3) felony murder charge predicated upon an aggravated battery conflicts with an acquittal of a section 9 — 1(a)(2) murder charge involving a knowing creation of a strong probability of death or great bodily harm. We determine that it is possible for a jury to find that defendant knowingly caused harm without finding that defendant knowingly created a strong probability of death or great bodily harm to any individual.

As previously stated, the jury here determined that defendant intended to inflict (1) bodily harm on a person 60 years of age or older and (2) great bodily harm. At the same time, the jury determined that defendant did not intend to commit harm which had a probability of causing death and that defendant did not intend to do something which would only probably cause harm. A rigorously literal jury, carefully reading the language of the charges, could have concluded that kicking and stabbing an 80-year-old woman is not a probability so much as a certainty to cause great bodily harm but not so much as to give rise to a strong probability of death.

Following this reasoning, it is possible for a jury to find that a defendant intentionally caused harm but did not knowingly create a strong probability of harm or death. To illustrate, a jury could reason that a person knowingly creates a strong possibility of harm or death by placing a poisoned drink in front of another, whereas that person intentionally causes harm by physically administering the poison to another by way of injection. Therefore, in the present case, we find that the verdict is not inconsistent because the existence of the essential element of felony murder (premised upon the intentional infliction of “great harm” and “harm to a person 60 years of age or older”) was not inconsistent with an acquittal on charges that defendant created a strong probability of harm or death.

Defendant next asks this court to reverse her conviction and hold that aggravated battery no longer is a valid predicate to felony murder. The Criminal Code of 1961 unambiguously establishes that aggravated battery is a forcible felony which is included in the definition of felony murder. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4, 2 — 8, 9 — 1(a)(3).) Furthermore, our supreme court has held that a perpetrator is responsible for murder if death results because of the commission of an aggravated battery. (People v. Viser (1975), 62 Ill. 2d 568, 580; People v. Ray (1979), 80 Ill. App. 3d 151, 156.) We see no reason to hold otherwise.

Defendant next maintains that proof of her guilt was not established beyond a reasonable doubt. In support of this contention, defendant argues that the only competent evidence of her guilt consisted of: (1) her mere presence as Calvin Pierce beat and stabbed Duncan; (2) her nudge of Duncan’s leg to determine if she was alive; and (3) her inability to report Pierce’s act until several hours after the event.

The general rule is that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Collins indicates that the question on review is whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Collins further dictates that “ ‘upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ ” (Emphasis in original.) (Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) We cannot overturn a guilty verdict unless the proof is so unsatisfactory and unconvincing that it raises a serious doubt as to defendant’s guilt in light of all the evidence. People v. Szudy (1982), 108 Ill. App. 3d 599, 605; see also People v. Coulson (1958), 13 Ill. 2d 290, 296; People v. Redman (1986), 141 Ill. App. 3d 691, 704.

Viewing the present case in the context of these principles, we conclude that there is sufficient evidence to support the jury’s verdict. In the light most favorable to the prosecution, we are not convinced that there is serious doubt as to defendant’s guilt.

Defendant admits her presence at the scene of the crime. Defendant also admits helping Pierce to “scare” Duncan at the crime scene. She admits asking Duncan, “[Wjhat’s your problem lady?” and “[W]hy were you bitching at him?” Although defendant denies her participation in the crime, sufficient evidence was presented which could cause a reasonable jury to reject defendant’s claim. For example, a contributing factor to Duncan’s death was the admission of a blunt trauma to the head. Such a trauma could have been caused by a kick to the head. The State offered expert testimony to establish that patterned abrasions found on Duncan’s face were consistent with the shape of defendant’s shoe, and that head trauma was a contributing cause of death. This evidence supports a reasonable conclusion that defendant delivered the kick to Duncan’s head and thus participated in the killing. The jury heard significant amounts of testimony on this point, and we do not view its finding as unreasonable in light of the evidence presented. Furthermore, small amounts of blood were found on defendant’s shoe and sock. Defendant also admitted kicking Duncan’s side in order to see if she was alive after Pierce beat her.

Several other pieces of evidence tend to show defendant’s involvement in the crime. Defendant admits checking the victim’s purse for money while Pierce was accosting Duncan. Defendant admits taking the knife from Pierce after he used it to stab Duncan. Defendant admits intending to stab Duncan but claimed she could not. Defendant testified that she dropped the purse after looking through it before Pierce gave her the knife. However, both the knife and the purse were found at a significant distance away from the body. Thus, her testimony lost some credibility. Defendant never mentioned moving the purse, so it should have been found near the body.

In addition, defendant never contacted the police or anyone else about the murder. Defendant testified that her fear of a reprisal from Pierce prevented her from doing so. However, evidence at trial tends to show that defendant was not fearful. For example, defendant and Pierce visited a friend’s house immediately after the murder. When called as a witness, this friend described defendant’s manner at that time as “fine.” Thus, a jury could infer that defendant was not afraid of Pierce after the murder. Neither did defendant make an attempt to say something to the baby-sitter who called after the murder on November 2. The baby-sitter had been supervising defendant’s three-year-old son during the night and wanted to know whether to bring the child back home on that same day. A jury could have determined that had defendant feared for her life or her son’s life, she would have said something to warn the babysitter or forestall her arrival.

In order to establish her innocence, defendant points to conflicts in the evidence with respect to (1) the source of the patterned abrasion on Duncan’s face, (2) her actual participation in the crime and (3) her fear of Pierce. However, this court has already held that a “conflict in the evidence does not establish a reasonable doubt, and a jury verdict based on substantial and credible evidence is not rendered reversible by the fact that other evidence was introduced which might, if believed, have resulted in a different verdict.” (People v. Jaffe (1986), 145 Ill. App. 3d 840, 847.) Upon our review of the record, we do not have a grave and substantial doubt of defendant’s guilt. Jaffe, 145 Ill. App. 3d at 847.

Defendant next argues for a reversal and remand because defendant’s testimony from a hearing to withdraw a guilty plea was used to impeach defendant at her trial in violation of Supreme Court Rule 402(f), which provides, in pertinent part:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 134 Ill. 2d R. 402(f).

The question posed to defendant at the plea withdrawal hearing asked defendant if, on the night of the murder, it was her belief that Duncan would not have stepped into the pickup truck with Pierce had Duncan seen defendant. Defendant agreed that her presence would have deterred Duncan from getting in the truck with Pierce. However, at trial, defendant testified she did not believe that Duncan would have declined to enter the truck had Duncan known of defendant’s presence. The prosecution sought to admit the previous testimony in order to impeach defendant’s trial testimony.

Although this issue was not properly preserved for appeal, defendant correctly points out that the admission of statements made in the course of plea negotiations can affect substantial rights and possibly amount to plain error. (People v. Benniefield (1980), 88 Ill. App. 3d 150, 156.) However, we fail to find plain error, primarily due to our determination that testimony provided during a hearing to withdraw a guilty plea does not lie within the envisioned scope of protected discussion of Supreme Court Rule 402(f). Rule 402(f) was enacted “ ‘to protect communications made by the defendant in the bargaining process from being turned into a weapon of the State at a later trial.’ ” (Emphasis added.) (Benniefield, 88 Ill. App. 3d at 154, quoting People v. Morris (1979), 79 Ill. App. 3d 318, 332.) The historical and practice notes following the committee comments state that Rule 402(f) “recognizes the need to encourage plea bargaining, and the inherent unfairness of encouraging a defendant to participate in plea negotiations but then using the negotiations against him if they fail.” (Ill. Ann. Stat., ch. 110A, par. 402(f), Historical & Practice Notes, at 399 (Smith-Hurd 1985).) Thus, the purpose of Rule 402(f) is to render inadmissible statements made while negotiating a plea agreement or in the context of the agreement itself. We find no authority to support defendant’s argument that the rule should also reach to testimony offered during a hearing on a motion to withdraw the guilty plea (a point subsequent to the plea negotiation and entry stage). Therefore, admission of the testimony for purposes of impeachment was not error. The central policy of the rule as applied to this situation would forbid admission of statements made pursuant to negotiating a plea or that the defendant had previously entered a plea. Since no such revelations were made here, no reversible error was committed.

Defendant next argues that she was denied effective assistance of counsel because of counsel’s failure to file suppression motions and counsel’s failure to tender instructions on the substantive use of prior inconsistent statements.

To succeed on a claim that counsel’s assistance was so defective as to require reversal of a conviction, defendant must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; see also People v. Chandler (1989), 129 Ill. 2d 233, 242.) The purpose of the effective assistance guarantee of the sixth amendment is to ensure that criminal defendants receive a fair trial. Strickland, 466 U.S. at 684, 80 L. Ed. 2d at 691, 104 S. Ct. at 2063.

The Strickland test is a benchmark used to determine whether a defendant received a fair trial. Defendant must overcome a strong presumption of outcome reliability and show that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

Both prongs of the Strickland test must be established by defendant. However, we need not determine whether counsel’s performance was deficient before examining the prejudice allegedly suffered by defendant. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.

According to Strickland, “a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.’’ (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) Such a prejudice inquiry does not seek to determine whether the outcome of the case would have been different absent the error. Instead, it is the “confidence in” and “reliab[ility of]” the outcome that is in question. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 697-98, 104 S. Ct. at 2068.) In making this inquiry, Strickland dictates that we must consider the “totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

Applying the standard set out in Strickland in the context of all the evidence before the trial court, we find that defendant’s trial was not rendered unfair due to the alleged errors of counsel. This finding rests on our determination that the findings at the trial level would not have been affected had trial counsel acted as defendant claims counsel should have.

Defendant first asserts defense counsel was ineffective for failing to recognize that she was arrested without probable cause and for failing to file a motion to quash her arrest and suppress statements she subsequently gave to the police. The fourth and fourteenth amendments to the United States Constitution dictate that an individual cannot be seized or arrested without probable cause. Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

An arrest occurs when the police inform defendant of a violation, defendant submits to their control, and it is clear that the police intend to arrest defendant and that defendant understands he is being arrested. (People v. Avery (1989), 180 Ill. App. 3d 146, 152.) The test for whether a person has been seized is “whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Avery, 180 Ill. App. 3d at 153.) According to Avery, the “coercive effect of police conduct taken as a whole” must be examined and not “each particular detail of the police conduct in isolation.” (Avery, 180 Ill. App. 3d at 153.) In Avery, the appellate court held that the trial court erred in finding that no arrest occurred when defendants were first taken into custody for questioning. The court pointed to several factors which tended to indicate that an arrest had taken place. In Avery, the police located defendants at or near their homes and brought them to the station for interrogation about their involvement in the murder, defendants were not told they were free to leave, defendants could reasonably believe that they could not leave, defendants were kept in interrogation rooms for 8 and 10 hours, and defendants were left alone for hours at a time.

In the instant case, defendant drove to a fire station with Pierce in order to talk to the police about the circumstances surrounding Duncan’s death. Defendant’s questioning took place at the fire station in a large room that had a kitchen area, some lawn tables, and a large round table with chairs. A detective who participated in this questioning testified that defendant was not in custody and was free to leave because she was not a suspect. At this time, the police were investigating the circumstances surrounding Duncan’s death and the background of people who knew Duncan. Defendant was advised of her right to remain silent pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. We find that these facts, taken as a whole, do not indicate sufficiently coercive conduct on the part of the police to cause a reasonable person to believe that he could not leave. Defendant does not show that she was interviewed for an unreasonably lengthy period of time as was the defendant in People v. Townes (1982), 91 Ill. 2d 32. Defendant was never handcuffed, nor was she a suspect until later in the interview. (People v. Collins (1989), 182 Ill. App. 3d 362.) We view the fact that defendant drove with Pierce to the fire station as indicating the absence of coercion and analogous to People v. Cooney (1985), 136 Ill. App. 3d 989, where defendants were asked if they wished to return home while in transport to the police station. Finally, the interview took place in a spacious, nonintimidating room at a fire station. In our view, such an environment contributes to the overall absence of coerciveness on the part of the police. See People v. Stofer (1989), 180 Ill. App. 3d 158 (where one of the factors the court examined in concluding that an arrest took place was that the defendant was told to wait in an interrogation room for an extended period of time).

We, therefore, conclude that defendant was neither explicitly nor implicitly seized during the time period leading up to her arrest. It follows, then, that because defendant’s counsel would have been unsuccessful in attempting to quash defendant’s arrest and suppress defendant’s subsequent statements, defendant was not prejudiced nor was her trial unfair.

Defendant next asserts that trial counsel was ineffective because of a failure to tender jury instructions which would reflect proper use of the rule regarding the substantive use of prior inconsistent statements. The statements in question were made by a forensic pathologist (Blum) who testified at Pierce’s earlier trial that the bruise on Duncan’s face could have been caused by either a shoe or a boot. Defense counsel pointed out that this testimony appeared to be inconsistent with testimony Blum made during the Bennett trial to the effect that the abrasion on Duncan’s face was more consistent with the bottom of Bennett’s tennis shoes than with the bottom of Pierce’s boots.

During a trial conference, the defense counsel, the prosecuting attorneys, and the trial judge agreed that section 115 — 10.1 of the Code of Criminal Procedure of 1963 provided that prior inconsistent statements made under oath may be considered by the jury as substantive evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1.) While the prosecution did not think that an inconsistency was shown, the judge seemed to agree with defense counsel with respect to the use of Blum’s prior testimony in a substantive manner. However, when the jury instructions were given, defense counsel failed to tender jury instructions consistent with the substantive use of this testimony. Instead, the jury was instructed to use prior testimony only for the purpose of deciding the weight to be given to the evidence in the present trial.

The policy behind section 115 — 10.1 dictates that the substantive use of prior inconsistent statements made under oath in a criminal setting serves to place such testimony “on [an] equal footing with the trial testimony, thus making it more persuasive in the eyes of the trier of fact.” People v. Wilson (1986), 149 Ill. App. 3d 1075, 1079.

In Wilson, the defense counsel failed to apply section 115 — 10.1. As a result, the jury never received instructions directing them to use prior inconsistent statements in a substantive manner. Because the evidence was admitted only to impeach, the trial court improperly denied a request for an instruction on the lesser offense of reckless conduct which would have been justified if the prior testimony showing an absence of homicidal intent had been admitted substantively. To compound these problems, defense counsel waived closing argument and thus literally abandoned his final opportunity to persuade the jury that the defendant did not possess the requisite intent to kill. The court held that under these circumstances, where the defendant was deprived of having the essential element of his defense (the absence of intent) clearly explained and emphasized to the jury, and where defendant was improperly denied jury instructions of a lesser offense, the result of the proceeding was rendered unreliable and thus prejudicial to the defendant.

No such clear indications of prejudice or unreliability exist as a result of the errors in the present case. To begin with, defense counsel effectively elicited statements at trial which were similar to the previous inconsistent testimony. In so doing, he reduced the need to view the previous testimony substantively. The prior testimony concerned here was obtained at the prior trial of Calvin Pierce for his involvement in the murder of Carrie Duncan. At that trial, Dr. Blum testified that the mark on Duncan’s face could have been created by a shoe or a boot. Subsequent investigation provided Dr. Blum with more evidence, and at Bennett’s trial he testified that the patterned abrasions on Duncan’s face were more consistent with the tread mark on the bottom of Bennett’s shoes than with the soles of Pierce’s boots.

Defendant argues she was denied the opportunity to explain to the jury the essential element of her defense, i.e., that Pierce’s boot could have been the source of the imprint on Duncan’s face. We find that defense counsel’s cross-examination of Dr. Blum brought into question the source of the abrasion on Duncan’s face by eliciting admissions on the part of Dr. Blum that (1) a patterned weapon which had an arched shape could have caused the abrasion on Duncan’s face, and (2) the measurement of the top of Pierce’s right boot was more consistent with the measurement of the abrasion on Duncan’s face than the bottom of Bennett’s shoes. Defense counsel then demonstrated how the top of Pierce’s boot could have caused the injury. Furthermore, defense counsel provided testimony that Bennett’s left leg was weakened by missing cartilage, thus raising the possibility that she was too weak to perform the act.

Finally, defense counsel brought forth his own witness, a surgeon, who testified that the hard leather on a boot was more likely to cause the abrasions on Duncan’s face than the soft plastic on Bennett’s gym shoe. In addition, during his closing arguments, defense counsel highlighted the inconsistencies of Blum’s testimony by comparing Blum’s previous testimony that the abrasion could have been caused by a shoe or a boot with his recent testimony that the measurement of the abrasion was more consistent with the top of Pierce’s boot.

In light of the attention defense counsel gave to this element of defendant’s defense, we cannot say that the failure to tender the appropriate jury instruction prejudiced the trial or rendered its outcome unfair. Defense counsel called a strong witness to rebut Dr. Blum’s testimony, defense counsel effectively cross-examined Dr. Blum by casting some doubt as to the reliability of Dr. Blum’s testimony, and defense counsel presented a closing argument which pointed out apparent inconsistencies in Blum’s testimony. The court in Wilson reversed the defendant’s conviction because trial counsel failed to recognize the substantive value of a prior statement and use it to explain an essential element of the defense, thus defeating the defendant’s chance for a conviction on a lesser offense. (Wilson, 149 Ill. App. 3d 1075.) No such injustice occurred here. The facts above show that defense counsel recognized the substantive value of the prior statement, used it for impeachment, and buttressed his reasoning by providing a credible witness who testified that the essential element of “knowingly caused harm” was not present by stating that Pierce’s boot caused the harm, not Bennett’s gym shoe. Therefore, we hold that the failure to tender instructions regarding the substantive use of the prior testimony was harmless error. We have held this finding proper where it does not appear to be a reasonable probability that the outcome would have been affected had the evidence been properly allowed as substantive. People v. Broadnax (1988), 177 Ill. App. 3d 818, 835.

Defendant next argues that the cumulative and prejudicial nature of slides, photographs, body charts and videotape of the victim requires a remand for a new trial. However, the only issue properly preserved for appeal was whether the trial court committed error in allowing gruesome photos to be presented to the jury in the form of overhead projection slides when the State had other means of presenting the same photographs to the jury. Therefore, the other issues regarding photographs, body charts and videotape are waived. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 32.) In Bouchard, we held that a defendant must object to an error at trial and raise it with specificity in a post-trial motion for a new trial in order to preserve that issue for appeal. Bouchard, 180 Ill. App. 3d at 32.

In the present case, the trial judge allowed the slides into evidence because they were relevant to show the nature and extent of the injuries and because the screen projection made it easier for the jury to observe the photos as they were discussed during the testimony of the pathologist. The general rule is that relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. (People v. Seuffer (1991), 144 Ill. 2d 482, 509.) This determination lies within the sound discretion of the trial judge, and it will not be overturned on appeal absent an abuse of discretion. People v. Seuffer, 144 Ill. 2d at 509.

We do not believe the trial judge abused his discretion in allowing the prosecution to introduce the photographic slides into evidence. The nature of the wounds inflicted was of central concern in this case. The placement of the body, the extent of the injuries and the type of injuries inflicted were all germane to the question of who caused the injuries to Duncan. Therefore, the trial judge’s decision that the overhead slides would facilitate the presentation of this evidence was appropriate and not an abuse of discretion.

Defendant next argues that the trial judge relied upon improper factors in aggravation at the sentencing phase of her trial. We agree.

Among the aggravating factors the trial court noted were defendant’s unemployment, defendant’s problems with alcohol, and the age and death of the victim. We find that these are improper factors to rely upon in aggravation of defendant’s sentence in this case.

First, the mere fact of unemployment is not a proper factor in aggravation, because many persons are unemployed for various reasons. (People v. Birge (1985), 137 Ill. App. 3d 781, 792.) Second, alcoholism has traditionally been considered as a factor in mitigation rather than aggravation. (People v. Hayes (1988), 173 Ill. App. 3d 1043, 1052; People v. Tannahill (1987), 152 Ill. App. 3d 882, 889.) Third, the court should not have considered the death of the victim as a factor in aggravation when sentencing a defendant for murder. (People v. Conover (1981), 84 Ill. 2d 400, 404.) Likewise, the court should not have considered the age of the victim as an aggravating sentencing factor for a felony murder predicated upon an aggravated battery resulting from harm caused to a person 60 years of age or older. Absent a clear legislative intent, a fact implicit in the offense of which the defendant has been convicted cannot be used as an aggravating factor in sentencing. (People v. Ferguson (1989), 132 Ill. 2d 86, 97.) In Ferguson, the court held that the age of the victim should not be considered as an aggravating sentencing factor where the underlying offense, sexual assault on a minor, has already been enhanced based on the age of the victim. (Ferguson, 132 Ill. 2d at 98.) We hold this same principle applies here. The legislature already elevated battery to aggravated battery when harm is caused to an individual 60 years of age or older. Therefore, the age of the victim should not be relied upon in aggravation when sentencing for this particular offense. However, because we will vacate the conviction of the felony murder count predicated upon harm caused to a person 60 years of age or older, reliance upon the age of the victim in sentencing no longer continues to be an improper sentencing factor.

We also note that the trial court failed to place any primary or overriding importance on a legitimate aggravating factor. Therefore, we are unable to determine the weight given to the improperly considered factors, and we must remand the cause for re-sentencing. People v. Bourke (1983), 96 Ill. 2d 327, 332.

Finally, defendant argues that she was improperly convicted of and sentenced for committing two crimes where the facts show only one criminal act. We agree. We consider the issue even in the absence of proper preservation because an error in sentencing can affect defendant’s fundamental right to liberty and, thus, amount to plain error. People v. Martin (1988), 119 Ill. 2d 453, 458.

The general rule is that when there is one person murdered, there can only be one conviction. (People v. Mack (1984), 105 Ill. 2d 103, 136-37.) Convictions of more than one offense cannot be carved from the same physical act. (People v. Szabo (1983), 94 Ill. 2d 327, 350.) The present case involves two convictions of felony murder where there is only one victim. Therefore, one conviction must be vacated.

When multiple convictions are had for offenses arising out of a single act, sentence shall be imposed on the most serious offense. (Mack, 105 Ill. 2d at 137.) However, because the sentences here are both based upon convictions of first degree murder, they are equal in length and are of no assistance in determining which is the most serious offense. Furthermore, neither conviction has a more culpable mental state than the other. (Mack, 105 Ill. 2d at 137.) The central difference between the two felony murder charges here is that one of the charges involves “bodily harm” to an individual and is elevated to the level of an aggravated battery because that harm is inflicted upon a person 60 years of age or older, whereas the other felony murder charge is based upon the infliction of “great bodily harm” to any individual. We view the latter as being more serious because it involves a greater degree of bodily harm. For these reasons, the defendant’s conviction of and sentence for aggravated battery on an individual 60 years of age or older are vacated. See Mack, 105 Ill. 2d at 137 (where the single act/single crime rule is violated, both the offending conviction and its sentence are vacated).

We affirm in part, vacate in part, and remand the cause for re-sentencing.

Affirmed in part; vacated in part and remanded.

DUNN and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAY E. JONES, JR., Defendant-Appellant.
    Fourth District
    No. 4—91—0442
    Opinion filed December 5,1991.

      Byron J. Sims, of Phelps, Kasten, Verticchio & Ruyle, of Gillespie, for appellant.
    Vince Moreth, State’s Attorney, of Carlinville (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On November 14, 1990, defendant, 23-year-old Raymond E. Jones, Jr., was charged with public indecency. It was alleged he was 17 years old or older and he knowingly exposed his penis in a public place and in a lewd manner -with the intent to arouse his sexual desires. (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 9(a)(2).) After a jury trial in Macoupin County circuit court on February 25, 1991, defendant was convicted of the public indecency charge. He appeals, arguing the court abused its discretion by denying his request for a mistrial because a police officer’s testimony which alluded to his previous police contacts prejudiced the jury. We disagree and affirm.

At defendant’s trial, the 20-year-old female victim of defendant’s alleged public indecency testified she was the only person in a Carlin-ville laundromat on November 12, 1990. She was a college student at Blackburn College in Carlinville and had gone there to do laundry at approximately 5 p.m. Defendant entered the laundromat and went into the rest room. According to the victim, approximately 10 minutes later, defendant exited the rest room, stood directly in front of her only two feet away, removed his penis from his sweatpants and began to masturbate. He was wearing blue sweatpants, a red and black flannel shirt, and white tennis shoes. Defendant’s hair was short and spiked on top and long and curly on the sides. The victim rushed out of the laundromat and immediately reported the incident to Carlinville police. She testified the laundromat was well lit by long fluorescent bulbs. She had identified defendant as the perpetrator from a photo array and when he was brought to the police station for questioning about the incident. She testified defendant wore the same clothes the day he was questioned that he wore the day he publicly exposed himself.

The State’s next witness was Carlinville police officer Bradley Vance, who investigated the victim’s complaint and interviewed defendant. Officer Vance testified defendant was 23 years old and was born August 11, 1967. He explained he knew this from “information from the PD.” Defense counsel objected and requested a mistrial, arguing the jury could be prejudiced by the suggestion defendant had previous police contacts. The trial judge sustained defendant’s objection, but denied the motion for a mistrial. Officer Vance then testified defendant told him he was 23 years old when he interviewed defendant. Officer Vance also testified the victim identified defendant as the perpetrator from a photo array and later identified him at the police station.

Defendant called three witnesses who testified that on November 12, 1990, the date of the alleged public indecency, defendant was at his parents’ home, where he lived. These witnesses also testified defendant did not leave home to go to the IGA store any time during that evening. They each recalled defendant returned home from work around 4:30 p.m. Defendant’s mother testified she remembered defendant was home that night because he made dinner with his wife. She remembered this because she usually made dinner for the family, but could not because she was home ill all day. Defendant’s wife also stated defendant was home the entire evening. However, she testified defendant’s mother returned from work that day around 6 p.m. Defendant’s father also testified defendant was home the night in question.

Each of defendant’s witnesses testified defendant owned blue sweatpants, but defendant’s father testified the pants were light, and not dark blue. Defendant’s father and mother testified defendant could not have been wearing a red and black flannel shirt on November 12 because on that day defendant did not own, or have access to, such a flannel shirt. His father loaned him a red and black flannel shirt to wear to work, but not until November 14. Officer Vance testified defendant was brought in for questioning about the incident on November 13, 1990, and was then photographed wearing a red and black flannel shirt, white tennis shoes, and blue sweatpants. Defendant’s mother testified he was not brought in for questioning until November 14.

Although defendant’s three witnesses each testified defendant did not leave the home between 6 p.m. and 6:30 p.m. on November 12, the State introduced rebuttal testimony by 23-year-old Paul Rutter, who had attended school with defendant since grade school. Paul testified he saw defendant, a woman, and a child at Harmon’s IGA in Carlinville between 6 p.m. and 6:30 p.m. According to Paul, defendant was wearing the same attire the victim described the perpetrator as wearing shortly after 5 p.m. on the same day. After viewing the photo taken of defendant by the police, Paul stated this was the same clothing defendant was wearing at IGA. Defendant was wearing a red and black flannel shirt, white tennis shoes, and blue sweatpants.

The jury found defendant guilty of public indecency. (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 9(a)(2).) Defendant filed a motion in arrest of judgment. The court denied defendant’s motion and sentenced him to serve 364 days in the Macoupin County jail.

Defendant argues the trial court abused its discretion in denying his motion for a mistrial. He contends Officer Vance’s statement that he knew defendant’s age because the “PD” had that information prejudiced him by informing jurors he had previous police contacts.

The State initially argues defendant waived this issue by not raising it in a post-trial motion. It also argues no plain error occurred because Officer Vance’s testimony was probative of a fact in issue and because the court struck the testimony about which defendant complains.

To preserve an issue for appeal defendant must object at trial and in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. McCarthy (1991), 213 Ill. App. 3d 873, 884, 572 N.E.2d 1219, 1226.) Defendant did not file a post-trial motion for a new trial pursuant to section 116 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1). Instead, he filed a motion in arrest of judgment (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 2), which the State correctly notes is limited to raising the issue that no offense was correctly alleged in the indictment, information, or complaint, or to argue the court lacked jurisdiction to hear the case. In People v. Irwin (1965), 32 Ill. 2d 441, 207 N.E.2d 76, the Illinois Supreme Court found defendant waived objecting to an improperly admitted confession, improper cross-examination, and prejudicial argument because he raised these objections in a motion in arrest of judgment rather than a motion for a new trial. (Irwin, 32 Ill. 2d at 445, 207 N.E.2d at 79.) Moreover, defendant waived the issue because he did not raise his objection in a post-trial motion for a new trial.

The State is also correct no plain error arose from the court’s denial of defendant’s request for a mistrial. Plain error arises only when the evidence is closely balanced or the error is so grave defendant was denied a fair proceeding. People v. Whitehead (1987), 116 Ill. 2d 425, 447-48, 508 N.E.2d 687, 695; People v. Neal (1985), 111 Ill. 2d 180, 196-97, 489 N.E.2d 845, 851.

The evidence here was not closely balanced. The 'victim of defendant’s public indecency had ample opportunity to identify the perpetrator. Lighting in the laundromat was adequate for her to identify defendant. He stood directly in front of her and only two feet away from her while committing the act. The victim described the perpetrator’s attire. She later identified defendant from a photo array and identified him in the police station.

In addition, Paul Rutter testified he saw defendant at IGA about an hour after the victim testified she arrived at the laundromat. Although defendant’s mother, father, and wife testified he did not leave the house after 4:30 p.m. the evening of November 12, 1990, Paul’s description of defendant as dressed in a red and black flannel shirt, white tennis shoes, and blue sweatpants supported the victim’s description of defendant. The family relations between defendant and his alibi witnesses suggest the jury could reasonably have been skeptical of their testimony, which was also somewhat inconsistent. Defendant’s wife testified defendant’s mother went to work that day and returned around 6 p.m. However, defendant’s mother stated because she was home all day ill, she knew when defendant arrived home and what he did after arriving home. In addition, testimony by Paul Rutter, a disinterested witness who knew defendant since grade school, contradicted the testimony by defendant’s mother, father, and wife that defendant was home on the evening of November 12, when the public indecency occurred.

Nor does the evidence show defendant was denied a fair trial. Officer Vance’s statement was not so prejudicial as to require a mistrial. Defendant cites People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148, for his contention the court should have granted a mistrial because evidence which suggests a defendant has previously been involved with criminal activity should not be heard by a jury when its prejudicial effect outweighs its probative value.

The error in admitting improper evidence is generally cured by striking the evidence unless it is clear the prejudicial effect of the evidence cannot be removed from the jurors’ minds. The decision about whether to grant a mistrial lies within the sound discretion of the trial court. Its decisions should not be disturbed unless defendant has been prejudiced by evidence erroneously admitted, but stricken from the record. (People v. McKinney (1990), 193 Ill. App. 3d 1012, 1017, 550 N.E.2d 604, 607.) Defendant in this case was not prejudiced by Officer Vance’s testimony he obtained defendant’s age from “PD” records. The court sustained defendant’s objection. The evidence shows the jury could reasonably have found defendant guilty absent Officer Vance’s testimony, which the court struck from the record.

Defendant also contends evidence concerning crimes unrelated to the one for which a defendant is presently charged is generally inadmissible and cites People v. Walker (1966), 34 Ill. 2d 23, 213 N.E.2d 552, and People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489, as support. Defendant’s previous criminal conduct is admissible if the evidence admitted proves a fact in issue. (People v. Bean (1990), 137 Ill. 2d 65, 107, 560 N.E.2d 258, 277, cert, denied (1991), 499 U.S. 932, 113 L. Ed. 2d 270, 111 S. Ct. 1338.) In this case, the State had to establish defendant was 17 years old or older. Because defendant’s age was relevant to his conviction, evidence establishing his age was admissible. However, the trial court did not risk the potential prejudice Officer Vance’s testimony that defendant’s age was obtained from “PD” records might have posed to defendant’s defense. Instead, the court sustained defendant’s objection to this testimony. Officer Vance then testified defendant told him he was 23 years old.

It was within the court’s discretion to strike the testimony and to deny defendant’s request for a mistrial. Testimony by the victim of defendant’s public indecency, along with testimony by Officer Vance and Paul Rutter, adequately supports defendant’s conviction. Defendant received a fair trial. He was not prejudiced by Officer Vance’s stricken testimony.

We affirm defendant’s conviction and sentence.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


text:
    BURNS AND WILCOX, LTD., Plaintiff-Appellant, v. ASSOCIATED GROUP BENEFITS, INC., et al., Defendants-Appellees.
    Second District
    No. 2—91—0414
    Opinion filed December 11,1991.
    Rehearing denied January 15,1992.
   The above-captioned opinion, filed December 11,1991, was withdrawn January 15,1992.


author: JUSTICE BOWMAN

text:
    KORY A. LANG, Plaintiff-Appellant, v. CONSUMERS INSURANCE SERVICE, INC., et al., Defendants-Appellees.
    Second District
    No. 2—90—0848
    Opinion filed December 6,1991.

      W. Randal Baudin, of McCuaig, Haeger & Bolz, of West Dundee, for appellant.
    Richard A. Del Giudice and Patrick K. Nails, both of Gozdecki & Zido, of Chicago, Steven C. Lindberg and Richard Kamerman, both of Kamerman Freidman Anselmo & Lindberg, of Naperville, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Kory A. Lang, appeals from two orders of the circuit court of Kane County. One order dismissed counts I and II of Lang’s first amended complaint against defendants, Consumers Insurance Service, Inc. (Consumers), and Interstate Bankers Mutual Casualty Company (Interstate), for failure to state a cause of action. The other order granted summary judgment in favor of Interstate as to count III. Plaintiff asserts that the dismissal of counts I and II was unfounded and that summary judgment for Interstate was improper because material factual issues remained unresolved.

Lang alleged the following facts as a basis for all three counts of the complaint. Prior to the incidents involved here, Consumers had been plaintiff’s insurance agent, and Interstate had carried the insurance on his 1986 Toyota. At the end of April 1988 Lang purchased a 1988 Toyota 4-Runner vehicle from the Nugent Toyota Dealership. In the course of the purchase, and before plaintiff was allowed to remove the vehicle from the premises, Nugent’s credit manager, Allen Goldberg, telephoned Consumers, spoke with a Consumers’ employee, and requested verification that the 1988 Toyota would be covered by auto insurance. The employee verified coverage and indicated that it would be carried through Interstate. In reliance on Consumers’ representation, plaintiff took delivery of the Toyota, started using it, and paid the premiums for insurance coverage when they became due. On September 24, 1988, Lang was involved in an auto collision which wrecked the 1988 Toyota. He filed a claim with Consumers and Interstate but was denied coverage.

Count I of the amended complaint alleged negligent misrepresentation by both defendants, Consumers because it had misrepresented to plaintiff that he had insurance coverage on the 1988 Toyota, and Interstate on the theory that Consumers was acting as its agent. In count II plaintiff alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.) by both defendants. Again, plaintiff pursued Interstate on an agency theory. Both counts I and II sought relief in the form of damages. Count III sought a declaratory judgment that there was an auto insurance contract between Lang and Interstate for the 1988 Toyota and that Interstate must provide coverage for Lang’s loss.

Both Consumers and Interstate filed motions to dismiss the amended complaint. By an order entered November 2, 1989, both motions were granted, with prejudice, as to counts I and II of the complaint. Lang’s subsequent motion to file a second amended complaint was denied, and Consumers’ motion to dismiss the entire cause of action against it was granted. In an order of June 28, 1990, Interstate’s motion for summary judgment on count III was also granted, and the case against Interstate was dismissed. This timely appeal followed.

As a preliminary matter, Consumers correctly points out that there are inaccuracies in the notice of appeal filed by plaintiff. Specifically, the notice states that appeal is taken from a November 2, 1989, order granting Interstate’s motion to dismiss counts I and II of the complaint. This is an incomplete statement of the contents of that order, which granted not only Interstate’s motion to dismiss but also Consumers’ motion to dismiss. Also, according to the notice, appeal is taken from a June 28, 1990, order granting Consumers’ motion to dismiss. That order actually granted Interstate’s motion for summary judgment.

While the filing of a notice of appeal is jurisdictional (134 Ill. 2d R. 301; Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill. App. 3d 219, 223), as has been established by the court in Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, such a notice is to be construed liberally. The purpose of a notice of appeal is to inform the prevailing party in the trial court that his opponent seeks review by a higher court. (Burtell, 76 Ill. 2d at 433; In re Marriage of Click (1988), 169 Ill. App. 3d 48, 54.) Accordingly, notice should be considered as a whole and will be deemed sufficient to confer jurisdiction on an appellate court when it fairly and adequately sets out the judgment complained of and the relief sought, thus advising the successful litigant of the nature of the appeal. (Burtell, 76 Ill. 2d at 433-34; March v. Miller-Jesser, Inc. (1990), 202 Ill. App. 3d 148, 157; Hamer v. Board of Education of Township High School District No. 113 (1978), 66 Ill. App. 3d 7, 8-9.) Where the deficiency in notice is one of form, rather than substance, and the appellee is not prejudiced, the failure to comply strictly with the form of notice is not fatal. (Burtell, 76 Ill. 2d at 434; In re Marriage of Betts (1987), 159 Ill. App. 3d 327, 330.) We think Lang’s notice of appeal is sufficient to withstand scrutiny under these principles.

While the notice does not completely or accurately set forth the content of the orders appealed from, it does correctly relate the dates the orders were entered. Too, it refers to motions to dismiss by both Interstate and Consumers; as we have mentioned, the earlier order granted motions to dismiss both defendants. In a separate paragraph the notice states that the cause was not ripe for appeal until entry of the June 28, 1990, order which “disposed of the cause and the parties in their entirety.” Finally, the notice requests reversal of “both Orders” and reinstatement of the cause of action.

Although plaintiff’s notice of appeal is confusing as to which order dismissed which party, and how they were dismissed, it leaves little doubt that plaintiff sought review by a higher court of the orders which resulted in the complete dismissal of his cause against both defendants. Those orders were the orders of November 2, 1989, and June 28, 1990. In addition, we note that defendants do not claim to have been prejudiced by the errors in the notice of appeal. On the contrary, both defendants have timely and fully responded to the arguments proffered by plaintiff in challenge to both orders cited by date in the notice. Considered in its entirety, the notice was adequate to advise the defendants of the judgments challenged and the relief sought by plaintiff and, thus, to apprise them of the nature of the appeal. Absent prejudice to defendants, the notice of appeal is sufficient to confer jurisdiction on this court. Burtell, 76 Ill. 2d at 433.

In another preliminary argument Consumers claims that plaintiff did not properly preserve for appellate review the issues he raises relevant to the order of November 2, 1989, which granted the defendants’ motions to dismiss as to counts I and II of the complaint. Specifically, Consumers points out that plaintiff did not object or file “any memorandum” in opposition to the motion to dismiss and neither requested leave to amend his complaint nor objected to dismissal of the motion with prejudice. There is no merit to defendant’s claim.

Plaintiff was not required to object formally or file a memorandum in opposition to defendant’s motion. We are confident, however, that the motion did not pass unnoticed by plaintiff. The order entered on November 2, 1989, indicates that the matter was coming on to be heard on the motion to dismiss and that both plaintiff’s and defendants’ attorneys were present. After “the court hearing all arguments” it was ordered that both defendants’ motions were granted as to counts I and II of the complaint. Although the record does not contain a report of proceedings of the hearing on the motions, since plaintiff’s counsel was present we think it reasonable to conclude that “all” the “arguments” heard by the court included an oral argument by plaintiff’s counsel in opposition to Consumers’ motion. Consumers does not claim otherwise. Such an argument would fulfill the same purpose as either a memorandum of law or an objection relative to the motion. Plaintiff was not obligated, either, to request further leave to amend his complaint or to object to dismissal with prejudice. He may have simply decided that an appeal of the trial court’s disposition was the prudent direction to take. In sum, plaintiff’s amended complaint was before the trial court. The motion to dismiss was addressed to the complaint. Argument was heard on the motion. On this record we cannot say the issues raised by plaintiff as to Consumers were not sufficiently preserved for review.

We turn now to the substantive issues raised on appeal. Plaintiff asserts that the trial court erred in granting the defendants’ motions to dismiss as to counts I and II of the complaint. Both defendants’ motions were brought pursuant to section 2 — 615(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(b)) for failure to state a cause of action. The trial court’s order, however, reflects only a bare grant of the two motions. The court did not make any findings or set forth any basis for dismissing the challenged counts. Under this circumstance we must review all issues raised in the motions and argued on appeal. (Popp v. Dyslin (1986), 149 Ill. App. 3d 956, 960.) Placing in the record the reasons for the trial court’s final order would benefit this court and the parties and contribute to judicial efficiency. Popp, 149 Ill. App. 3d at 960.

For purposes of a motion to dismiss, all well-pleaded facts are regarded as true, and all reasonable inferences are drawn in favor of the nonmovant. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438; Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986) , 115 Ill. 2d 146, 148.) A cause should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504; Payne v. Mill Race Inn (1987) , 152 Ill. App. 3d 269, 275.) We find that counts I and II of plaintiff’s complaint, when viewed in light of these principles, were adequate to survive defendants’ section 2 — 615 motions to dismiss.

In all three counts of his complaint, plaintiff seeks to hold Interstate liable on the ground that an agency relationship existed between Interstate and Consumers. In deciding Interstate’s motion for summary judgment, the trial court found that there was no agency between the defendants. Interstate insists that the record supports this finding and reasons that, therefore, both the dismissal of counts I and II as to itself and the summary judgment in its favor on count III were proper. Since, as will be shown, the question of the sufficiency of count I turns on the agency issue, we will address that matter first.

An agent is one who, acting under authority from another, transacts business for him, and a true agency requires that the agent’s function be the carrying out of the principal’s affairs. (Clapp v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 469, 472.) Plaintiff, however, does not claim to have alleged an actual agency between Consumers and Interstate. Rather, he urges that he adequately pleaded an apparent agency. An apparent agent is one who, whether authorized or not, reasonably appears to third persons to be authorized to act as the agent for another person, as a result of the acts of that other person. (Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 582.) Too, an agency need not be expressed but may be implied from the facts of a particular situation. (Mitchell, 138 Ill. App. 3d at 582.) The existence and extent of an agency relationship can be shown, even if by circumstantial evidence, by reference to the parties’ situation and acts. (Milwaukee Mutual Insurance Co. v. Wessels (1983), 114 Ill. App. 3d 746, 749.) However, the authority of an agent may only come from the principal, and the authority, therefore, must be traced to some word or act of the alleged principal, not the acts or words of the agent. (Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 1136.) Application of these principles, for purposes of determining the sufficiency of a complaint, persuades us that plaintiff’s allegations adequately state an agency relationship.

Plaintiff alleged that Interstate authorized, allowed, and permitted Consumers to market, sell, and administer the sales, billing, and administration of its auto insurance policies to the public, including plaintiff; that at the time the alleged misrepresentations were made, Interstate was plaintiff’s current auto insurance carrier and Consumers was his insurance agent; that plaintiff was billed by Consumers and/or Interstate for auto insurance coverage; that he paid the premiums as required by Consumers and Interstate; and that an employee of Consumers told him and Allen Goldberg that Interstate would provide insurance coverage for the new vehicle. Taking the facts alleged as true and drawing inferences in favor of the nonmovant, as we must (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438), we believe plaintiff could prove facts showing that in the past he had purchased insurance from Interstate through Consumers, had been billed by Consumers for Interstate insurance, had remitted payment for Interstate insurance to or through Consumers, and had received aid from Consumers regarding the administration of his Interstate insurance policy. From these facts it could be inferred that Interstate knew Consumers was dealing with these various aspects of its insurance business and that Interstate was cooperating in those dealings. These facts and inferences could have made it reasonably appear to plaintiff that Consumers had been expressly authorized or, at the very least, allowed by Interstate to act as its agent and to transact business on its behalf. Thus, under plaintiff’s complaint, we cannot say that no set of facts could be proved which would establish an agency relationship between Consumers and Interstate. Consequently, on this issue the complaint is adequate to withstand Interstate’s motion to dismiss.

Having determined that plaintiff sufficiently pleaded an agency relationship between Consumers and Interstate, we must now consider whether the allegations of count I state a cause of action for negligent misrepresentation against Consumers. An action for the tort of negligent misrepresentation may be maintained if the complaint alleges that the defendant is in the business of supplying information for the guidance of others in their business transactions and, therefore, owes a duty to plaintiff, a breach of that duty, and injury proximately caused by the breach. Marino v. United Bank of Illinois, N.A. (1985), 137 Ill. App. 3d 523, 528, citing Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88-89; Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 493.

In support of its motion to dismiss count I, Consumers argued that plaintiff failed to plead that Consumers’ business is to supply information to aid others in their business dealings. Plaintiff responds by focusing on a number of allegations from which, he claims, it can reasonably be inferred that defendants were in such a business. We find that we need not decide this issue since, as we will explain, plaintiff’s allegation that Consumers is an agent of Interstate precludes Consumers from being one of those in the business of supplying information for business guidance.

Plaintiff expressly pleaded the agency of Consumers in his complaint where he stated:

“[T]he Defendant, INTERSTATE, has authorized, allowed, and permitted at all times herein, the Defendant, CONSUMERS, to market, sell, and administer the sales, billing, and administration of its automobile insurance policies to members of the public, including the Plaintiff, and at all times herein, the Defendant, CONSUMERS, and its employee, *** were acting within the scope and authority of that agency relationship with the Defendant, INTERSTATE.”

Although plaintiff pleaded that Consumers is an Illinois corporation doing business in Illinois, count I is devoid of assertions that, in regard to the pertinent events, Consumers acted as an entity separate and independent of Interstate. Thus, in the allegations of count I, plaintiff unmistakably claimed that Consumers was the agent of Interstate.

In its capacity as Interstate’s agent, Consumers was acting on behalf of Interstate and under Interstate’s authority. (See Clapp v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 469, 472.) According to the complaint, Interstate “is a corporation selling automobile insurance policies, and is licensed to do so in the State of Illinois, and is doing business in the State of Illinois.” In our view, this is an allegation that Interstate is in the business of selling auto insurance. Since Consumers was Interstate’s agent at the time the relevant events occurred, it, too, was transacting the business of selling auto insurance. A true agency requires that the agent’s function be the carrying out of the principal’s affairs. (Clapp, 137 Ill. App. 3d at 472.) Under plaintiff’s allegations, both Interstate and Consumers were selling insurance to members of the public, including plaintiff. Consequently, for purposes of negligent misrepresentation they were not in the business of providing information for others’ business guidance.

While we have found no cases directly on point, in similar cases involving representations made by sellers to reliant buyers, the courts have refused to find that the sellers were engaged in the business of supplying information for others’ guidance. In Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp. (1982), 109 Ill. App. 3d 132, Black, Jackson contacted representatives of IBM and, at IBM’s suggestion, also contacted defendant Lubin, regarding the use of a computer in its insurance business. Based on representations by the defendants that a certain type of system would meet its needs, Black, Jackson purchased a computer from IBM and computer software from Lubin. When the system proved to be inadequate, Black, Jackson sued for negligent misrepresentation to recover for economic losses. The court held that Black, Jackson could not state such a cause of action because neither IBM nor Lubin was in the business of supplying information. Rather, they were selling merchandise to Black, Jackson. Moreover, in its discussion, the Black, Jackson court cited National Can Corp. v. Whittaker Corp. (N.D. Ill. 1981), 505 F. Supp. 147, where the court noted that negligent misrepresentation actions are almost universally limited to situations involving one who, in the course of his business or profession, supplies information for the guidance of others in their business relations with third parties. (Black, Jackson, 109 Ill. App. 3d at 135.) IBM and Lu-bin had not supplied information to assist Black, Jackson in its dealings with a third party. What they had given was information pertinent to their own dealings with Black, Jackson.

Similarly, in Knox College v. Celotex Corp. (1983), 117 Ill. App. 3d 304, defendant had supplied roofing materials for a roof later found to be defective. Plaintiff charged that defendant had negligently misrepresented the quality and durability of the roofing materials. Citing Black, Jackson, the Knox court found that a negligent misrepresentation cause of action could not be stated because the defendant was not engaged in the business of supplying information for the guidance of others in their business transactions with third parties. Rather, defendant was simply a manufacturer and seller of roofing materials.

In another comparable case, Pasulka v. Koob (1988), 170 Ill. App. 3d 191, the owner/seller of real estate was sued by a buyer for allegedly negligent misrepresentations about the property. Citing the principle that negligent misrepresentation lies only where the defendant supplies information for guidance in business dealings with third parties, the court held that a directed verdict in favor of the seller on this issue was proper.

Finally, in Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, the complaint alleged that defendant negligently misrepresented that it had the knowledge and ability necessary to manage and operate a joint venture project in which plaintiff and defendant were mutually engaged. The court held that defendant was not in the business of supplying information for others’ guidance, but solely in the business of managing the venture. The trial court’s dismissal of the negligent misrepresentation count of the complaint, for failure to state a cause of action, was affirmed.

Based on plaintiff’s own allegations, we conclude that Consumers and Interstate, like defendants in the cited cases, were not in the business of supplying information to guide others in their business transactions. Just as defendants in Black, Jackson and Knox were selling, respectively, computer equipment and roofing materials directly to consumers, and defendant in Pasulka was selling his real estate directly to a buyer, defendants here were selling insurance directly to insureds, including plaintiff. Any information that was given to Lang by Consumers was not supplied to aid him in his business with others, but was merely incidental to his insurance transaction with Consumers and its principal, Interstate.

Plaintiffs reliance on Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, is misplaced. In Duhl, defendant realtor made materially inaccurate representations to plaintiffs sellers who had sought the realtor’s advice regarding the value and saleability of their home. The information was important to plaintiffs because they were relying on the sale of their present home to enable them to purchase a new home. The sellers stated a cause of action for negligent misrepresentation against defendant realtor, in part because the realtor, in the course of its business, supplied information to guide plaintiffs in the process of buying and selling a home and, thus, had a duty to exercise care in obtaining and communicating that information. Unlike the defendants in Black, Jackson, Knox and Pasulka, who were imparting information to plaintiffs relative to a transaction between plaintiff and themselves, the defendant in Buhl had been sought out by plaintiffs for the very purpose of providing information to guide them in the sale of their present home to a third-party buyer, as well as in the purchase of a new home from a third-party seller. Buhl supports the result we have reached regarding the issue of Consumers’ liability for negligent misrepresentation.

Absent allegations that Consumers was in the business of supplying information to aid Lang in his business with third parties, we conclude that no set of facts could be proven under count I which would entitle plaintiff to relief from Consumers for negligent misrepresentation. Since a cause of action cannot be stated against Consumers, neither can a cause of action be stated against Consumers’ principal, Interstate. Accordingly, the trial court correctly dismissed count I as to both Consumers and Interstate.

We are aware that plaintiff alleged that, as a result of a “previous insurance business relationship,” there existed a fiduciary relationship between himself and Consumers and Interstate which imposed a duty on defendants not to cause him harm. Assuming, without deciding, that at some point there was a fiduciary relationship between plaintiff and defendants, plaintiff still could not prevail on this issue under the allegations of his complaint.

Plaintiff correctly asserts that an insurance broker may be regarded as an agent, and thus a fiduciary, of an insured. (See Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623.) It is established, also, that an insurance broker may even be the agent of both the insurer and the insured. (Anfinsen Plastic Molding Co. v. Konen (1979), 68 Ill. App. 3d 355, 361; Browder, 62 Ill. App. 3d at 629.) In such a case, the facts must be closely examined to determine who is the principal of the agent and to whom the agent may owe a duty. (Browder, 62 Ill. App. 3d at 629.) Thus, while it is possible that, at varying times, Consumers acted as an agent for both Lang and Interstate, according to Lang’s complaint, at the time the misrepresentations were made Consumers was an agent of Interstate. The complaint sets forth the facts underlying the allegation that Consumers is Interstate’s agent, then explicitly states that “at all times herein, the Defendant CONSUMERS, and its employee, *** were acting within the scope and authority of that agency relationship with the Defendant, INTERSTATE.” Since, according to plaintiff’s own allegations, Consumers was acting in its capacity as Interstate’s agent, Consumers owed a fiduciary duty to Interstate rather than plaintiff. Consequently, Consumers had no duty of a fiduciary nature not to cause harm to plaintiff.

We next consider whether count II of the complaint was properly dismissed for failure to state a cause of action. In count II plaintiff realleged the factual background set forth in count I and asserted again that Consumers and Interstate shared an agency relationship. As a basis for liability in count II plaintiff alleged that defendants violated provisions of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). The portion of the Act cited in the complaint provides:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1987, ch. 121½, par. 262.

Consumers responded in its motion to dismiss, and argues on appeal, that the Act was not applicable because the events complained of did not involve a “sale” as required by the Act. Consumers insists that the alleged misrepresentation occurred during what was merely a verification of insurance coverage and not during the sale of insurance. Consumers’ argument cannot be sustained.

According to section 1(d) of the Act, “[t]he term ‘sale’ includes any sale, offer for sale, or attempt to sell any merchandise for cash or on credit.” (Ill. Rev. Stat. 1987, ch. 121½, par. 261(d).) It is true that plaintiff alleged that Allen Goldberg called Consumers and requested “verification” that plaintiff’s new truck would be covered by insurance. However, implicit in this sequence of events is plaintiff’s need and desire to purchase whatever additional or new insurance was necessary to cover the greater value of his new vehicle. Plaintiff also alleged that, based on Consumers’ representations, he took delivery of the truck. Implicit in these allegations is that plaintiff believed he had purchased the necessary insurance. The misrepresentations alleged by plaintiff unequivocally occurred in relation to a sale.

Interstate’s argument regarding plaintiff’s invocation of the Act is totally unfounded. In its appellate brief Interstate asserts, “A contract of insurance does not fall into the Deceptive Practices Act. Plaintiff stretches the language to the limit * * * by suggesting that the contract of insurance was a ‘sale’ and that the policy itself was ‘merchandise.’ ” Defendant would be well advised to peruse Fox v. Industrial Casualty Insurance Co. (1981), 98 Ill. App. 3d 543, where the court said:

“The Act itself defines a consumer as ‘any person who purchases or contracts for the purchase of merchandise ***.’ [Citation.] The Act defines merchandise as including ‘any objects, wares, goods, commodities, intangibles, real estate situated outside the state of Illinois, or services.’ (Emphasis added.) [Citation.] The sale of insurance is clearly a service and insureds are thus consumers and within the protection of the Consumer Fraud Act.” (Fox, 98 Ill. App. 3d at 546.)

The court in Petersen v. Allstate Insurance Co. (1988), 171 Ill. App. 3d 909, relied on Fox to find, like Fox, that purchasers of insurance are protected by the Act. We conclude that plaintiff’s attempt to secure whatever additional insurance he required does, indeed, fall within the parameters of the Act.

Since the Act is applicable to this situation and the alleged transaction between plaintiff and Consumers was a “sale” for purposes of the Act, we will consider the sufficiency of the allegations of count II. The Act prohibits the use of deception, false promise, misrepresentation and the like in the conduct of a sale. Plaintiff alleged that the statements made by Consumers’ employee to Allen Goldberg, indicating that his new vehicle would be fully covered by auto insurance, constituted a misrepresentation in that, at the time they were made, Consumers and Interstate had no intention of providing the insurance they promised. Taking these allegations as true, we cannot say that count II is so deficient that it does not state a cause of action as to Consumers. Further, since we have already determined that plaintiff adequately alleged that Consumers was an agent of Interstate, count II also sufficiently states a cause of action against Interstate.

The final matter to be determined is whether Interstate was properly granted summary judgment on count III. Initially, we note that the trial court order of November 2, 1989, granted both Consumers’ and Interstate’s motions to dismiss as to counts I and II. Nevertheless, the order of June 28, after reciting that Interstate moved for relief as to counts I, II and III, granted the motion and dismissed the matter as to Interstate. Since counts I and II had already been dismissed and were no longer before the court when the motion for summary judgment was decided, we will consider the propriety of summary judgment only as to count III.

Like the other two counts of the complaint, count III first alleged that Consumers was an agent of Interstate. According to the other allegations of count III, Consumers’ representation that insurance coverage would be provided for Lang’s new vehicle, combined with the billing of Lang for the insurance and Lang’s payment of premiums, constituted an express or implied contract of insurance between Lang and Interstate, Consumers’ alleged principal. After finding that Consumers was not the agent of Interstate, that Consumers had no authority to bind Interstate to coverage, and that Interstate did not have the authority to insure in the amount of coverage sought by plaintiff, the trial court granted Interstate’s motion for summary judgment. On appeal plaintiff stresses that there are as yet unresolved, material questions of fact in this case which precluded the entry of summary judgment.

Summary judgment is a drastic means of ending litigation and should be granted only when the movant’s right to relief is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Byron Community Unit School District No. 226 v. Dunham-Bush, Inc. (1991), 215 Ill. App. 3d 343, 347.) A motion for summary judgment should be allowed when the pleadings, depositions, admissions and affidavits on file demonstrate that there remains no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34.) The evidence must be strictly construed against the party seeking summary judgment and liberally in favor of the opponent. (Logan, 139 Ill. 2d at 234; Byron, 215 Ill. App. 3d at 347.) Upon application of these principles, we find that summary judgment in favor of Interstate was improvidently granted.

First of all, we agree with plaintiff that material factual questions have not been resolved. Plaintiff urges that Interstate’s argument and supporting authority on the issue of agency are addressed to the question of whether there was an actual agency between itself and Consumers, whereas plaintiff’s complaint alleged an apparent agency. Careful examination of Interstate’s appellate brief, as well as its memorandum of law in support of the motion for summary judgment, persuades us that plaintiff is correct. Thus, even if the record reflected no dispute as to an actual agency, there is still a question regarding the existence of an apparent agency. Unless there is no dispute regarding the parties’ relationship, the existence and scope of an agency relationship are questions of fact to be determined by the trier of fact. (Milwaukee Mutual Insurance Co. v. Wessels (1983), 114 Ill. App. 3d 746, 749.) Since the relationship between Consumers and Interstate cannot be described as undisputed, whether there was an agency relationship, albeit an apparent agency, is a factual question which must be resolved by a trier of fact.

The record also reflects that it remains vigorously contested whether Lang, or anyone on his behalf, notified Consumers that he was replacing his insured 1986 vehicle with a new 1988 vehicle, indicated to Consumers that he needed insurance coverage on the new vehicle, and received assurances from Consumers that the new vehicle was covered. In sum, the pleadings, depositions, and affidavits filed in this case reveal that material factual questions have not been resolved. Consequently, summary judgment was not appropriate.

In addition to finding, in the context of count III, that Consumers was not an agent of Interstate, the trial court concluded that Interstate did not have authority to insure in the amount needed by plaintiff to cover his new vehicle. This issue was raised by Interstate in its motion for summary judgment and is pressed again in this appeal. Curiously, although plaintiff alleged the existence of a contract in count III, and this is a contract issue, plaintiff did not respond to this argument either in the trial court or in this court. Nevertheless, after reviewing the record we are of the opinion that the trial court lacked an adequate foundation for its determination of this question.

In his prayer for relief in count III, plaintiff asked the court, essentially, to enforce the contract he alleged. However, if Interstate could not legally have entered into the purported contract, as urged by Interstate, the court could not have enforced it. A contract which necessarily contemplates a violation of law is void and unenforceable. (Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 635; Broverman v. City of Taylorville (1978), 64 Ill. App. 3d 522, 526-27.) Interstate focuses on statements in the record which suggest that it was prohibited from writing a policy to provide the amount of coverage needed for plaintiff’s vehicle.

The president of Interstate stated in his affidavit that Interstate was authorized by the Department of Insurance to write property damage coverage only up to a maximum of $8,000, an amount that would not have covered the value of plaintiff’s vehicle. The president of Consumers stated at his discovery deposition that his office had known at the time Lang purchased the 1988 Toyota that Interstate was restricted to writing policies on vehicles of less than $8,000 in value. While we acknowledge the evidence of Interstate’s limitations, we note that all of it comes from officers of the defendants. We can find nothing in the relevant affidavit or deposition, or anywhere else in the record, that purports to be a copy of, or cites to, or alludes to a statute, regulation, rule, or otherwise as authority for the restrictions claimed by Interstate. .

The references in the record imply, and Interstate’s argument on appeal urges, that it would have been illegal for Interstate to write the insurance plaintiff needed. It is a source of wonder, then, why neither of the defendants set forth the basis for the claim of illegality, either in the trial court or in this court. As we see it, whether Interstate did or did not have the legal power to write the insurance coverage at issue was a question which could not be resolved solely on the basis of the statements of the defendants. Absent the authority for those statements, it could not be found as a matter of law that Interstate could not write the necessary insurance. Thus, with regard to count III, Interstate was not entitled to summary judgment as a matter of law.

For these reasons, the portion of the November 2, 1989, order of the circuit court of Kane County which dismissed count I of the complaint as to both defendants is affirmed. The portion of that order which dismissed count II as to both defendants is reversed, and the matter is remanded to the trial court for further proceedings. The order of June 28, 1990, which granted summary judgment to Interstate as to count III of the complaint, is reversed, and the matter is remanded to the trial court for further proceedings.

Affirmed in part; reversed in part and remanded.

GEIGER and McLAREN, JJ., concur.