author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN C. BOSSE, Defendant-Appellee.
    Fourth District
    No. 4—92—0350
    Opinion filed December 10, 1992.

      Charles Colburn, State’s Attorney, of Jacksonville (Herbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    David E. Leefers, of Jacksonville, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Steven C. Bosse was charged by information with the unlawful possession, with intent to deliver, of more than 10 grams, but not more than 30 grams, of a substance containing cannabis. (Ill. Rev. Stat. 1991, ch. 56½, par. 705(c).) In the circuit court of Morgan County, a hearing was conducted on defendant’s motion to suppress evidence discovered in his apartment following a warrantless search. The trial court granted the motion to suppress, and the State appeals that order.

When the trial court decides to suppress evidence, generally that decision will be overturned by a reviewing court only if the State demonstrates that the trial court’s findings are clearly erroneous. However, if neither the facts nor the credibility of witnesses is challenged, the propriety of the trial court’s determination is a legal one, and the reviewing court may consider the issue de novo. (People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197.) In this case, the determination of the propriety of the trial court’s ruling hinges on the facts, which were to some extent disputed, and the credibility of the witnesses. Therefore, the question to be decided on review is whether the State has demonstrated that the findings of the trial court are clearly erroneous. We affirm.

The first witness called to testify by defendant was Sergeant Randy Weigler of the City of Jacksonville, Illinois, police department. Weigler was called as an adverse witness.

Weigler was on patrol on November 3, 1991. At about 2:30 a.m., he drove by Barney’s Tavern, observed some vehicles there, and stopped to check it. He radioed for assistance, and several officers arrived, including Officer Tapscott. Weigler observed defendant leaving the tavern and told defendant to stop and return. Defendant stopped and looked right at Weigler, who motioned for defendant to come back to him. Weigler then proceeded to stop the other tavern patrons from leaving and directed them to return to the premises. About 20 minutes later, Tapscott informed Weigler that defendant had left the scene. Tapscott had obtained the defendant’s license plate number, and further investigation established that defendant was residing at the High School apartments. A person at the station had indicated he knew defendant to be a student at Illinois College and where he resided.

Around 3 a.m., Weigler left the tavern and met with other officers, one of whom informed Weigler that defendant had fled from him. Weigler, Tapscott and Brett Taylor, a student riding with Tapscott, proceeded to the High School apartments. There, the manager, Lester Oettle, advised the officers that defendant lived in apartment 1-F. Oettle also advised the officers that another person named Mike Lovell was also possibly present in the apartment. Defendant and Lovell lived in the apartment. Defendant’s motor vehicle had been observed in the parking lot. The High School apartments were a secured complex, and Oettle let the police officers in.

The officers went to apartment 1-F. They did not have an arrest warrant or a search warrant. As they were standing outside the apartment door, Weigler heard what he thought were three or four voices and music. His written report indicated he could hear two people talking and possibly a third. When they knocked on the door, the officers did not announce who they were. Weigler also put his finger over the peephole in the door so that a person inside the apartment could not see who was standing outside the door. The door opens outward into the hall. Defendant opened the door. Weigler testified he asked, “mind my coming in?” Defendant did not give a verbal response, but stepped back. As he stepped back, Weigler, Tapscott, and Taylor entered the apartment.

Within a few minutes after the officers entered the apartment, defendant was arrested for being in a tavern after closing hours, an ordinance violation, and fleeing the officers. After he was handcuffed with his hands behind his back, defendant was placed on the floor of the apartment near the entrance to the apartment. Weigler’s report indicated he smelled cannabis as he stood outside in the hallway. Before placing defendant under arrest, the officer inquired why defendant fled and asked if he was Steve Bosse. Weigler stated he recognized defendant as soon as he opened the door. There were two other persons present in the living room of the apartment. The officers did not read defendant his Miranda rights at any time while in the apartment.

After securing defendant, in order to ensure the officers’ safety, Weigler went to talk to the two other persons in the apartment. Weigler observed defendant to be excited and agitated and he felt there could be a fight. Defendant made no threats. As they entered the apartment, the officers did not know whether defendant was armed. Even after defendant was secured, they had reason to believe defendant was a danger to them. Weigler denied going into the living room to look around and moving some papers on the coffee table to discover what appeared to be a pipe and other drug paraphernalia underneath. The two persons in the living room, a male and female, were quickly patted down and no weapons were discovered. Prior to knocking on the door, Weigler had no reason to believe the occupants of the apartment, including defendant, suspected the officers were in the hall. The officers learned that there was only one entrance to the apartment. No threats or threatening gestures were made. The occupants of the apartment were informed that the rest of the apartment would be checked for the officers’ safety. Weigler testified the officers had reason to believe there were other occupants because none of the three he had already spoken to were Lovell. Weigler admitted he had already asked if there was anyone else there and defendant stated there was no one else. Weigler proceeded to go through two bedrooms, a bathroom, and the living room closet. First he proceeded into the bedroom on the left. The lights were already on. He discovered no other person there. He checked the closet. In that room, he observed a plastic bag containing what appeared to be cannabis on a nightstand at the entrance of the room. He did not pick the bag up or open it. He then checked the other bedroom across the hall and the closet there. No other person was discovered there. Weigler then proceeded to the bathroom, where he observed a large “bong,” a pipe, still smoking. He picked it up and put it on the sink. He determined, from his experience, that it contained cannabis. Before Weigler went into the bedrooms and bathroom to check for the officers’ safety, he did not ask defendant for his consent. After Weigler walked back into the living room area, he advised defendant he was under arrest for possession of cannabis. He did not read defendant his Miranda rights. Weigler did telephone an assistant State’s Attorney to inquire about getting a warrant. The assistant State’s Attorney told Weigler to first see if defendant would give permission. After the telephone conversation, Weigler went to defendant and told him he did not have to consent to the search, that they were going to get a search warrant and bring in a dog to search the residence and that he was under arrest for possession of cannabis. Defendant said they did not need to get a search warrant, that he would give them permission and he would show them where it was. At that time, defendant was still sitting on the floor with his hands handcuffed behind him. The officers had arrived at the apartment at 3:15 a.m. and defendant was placed under arrest for possession at about 3:31 a.m. After defendant gave his permission to search, Weigler, Tapscott, and defendant walked down the hallway of the apartment to what Weigler understood to be defendant’s bedroom, wherein defendant indicated the cannabis was in the top drawer of the dresser. Weigler opened the drawer and discovered cannabis in clear plastic bags, money, checks, and syringes. The syringes were discovered in a white cardboard box inside the drawer. Defendant was then taken to jail.

Weigler was asked why, if he discovered the syringes then, did he later call to have a drug task-force officer inquire of defendant about the syringes and what they were for. Weigler explained that he discovered the syringes at this time, but the subject did arise later. While in the bedroom with defendant Weigler also picked up the bag on the nightstand and examined it. The officers did not search the bedroom at that time.

After defendant was removed from the apartment, Weigler again had a conversation with the assistant State’s Attorney. The other two persons in the apartment were released and were not arrested. Tapscott was sent to get a video camera, and after the assistant State’s Attorney arrived with a search warrant, video-tapes were made inside the apartment.

When he first arrived in the apartment and went back to talk to the two people, identified as the Woodwards, Weigler noticed seeds all over the table and the ashtray was pretty well exposed. “It wasn’t completely covered up. You could see a brown, it was like, I just call it a one-hitter.” This coffee table was only about 15 to 20 feet from the entrance to the apartment.

Defendant was removed from the apartment about 4 a.m. The warrant was obtained from Judge Bone about 6:30 a.m. Weigler went with the assistant State’s Attorney to get the warrant. Weigler told the judge he had seen some seeds and other material on the coffee table. He thought he told the judge he observed cannabis on the nightstand and a smoking pipe apparatus in the bathroom. He believed he also told the judge what he observed after he opened the door. He thought he probably told the judge about the inquiry made to the drug task-force officer about the syringes. Weigler was not really sure about this. He was the only one of the officers to testify before Judge Bone. The judge issued the warrant, and Weigler went back to the apartment to execute the warrant. Nothing was seized until they returned with the warrant. At that time, they removed the syringes, the plastic bags of cannabis, and the pipe from the bathroom, and gathered whatever could be found on the coffee table in the living room. They also removed a container with what was believed to be some form of steroids from defendant’s room. It had defendant’s name printed on it. It was discovered in the drawer of the nightstand. They also seized some cash, a list of names, a scale, and a camera which was hidden in the trash can in the bathroom. The film was later developed. The search warrant did not include cameras. The camera was seized because it appeared to have been hidden and have evidence pertaining to the case. The scale was found in a gym bag in the large living room closet. Photographs and videotapes were taken at that time.

On redirect examination, Weigler stated he observed a strong odor of cannabis emanating from apartment 1-F while the officers were standing in the hallway of the apartment building outside the apartment door. Defendant seemed very nervous and surprised. After handcuffing defendant, he observed the cannabis seeds and “one-hitter” pipe on the table. This was in plain view. When the defendant opened the door of the apartment, Weigler smelled a strong odor of burning cannabis. Looking into the doorway, he observed other people “standing up and moving around, shuffling things around the coffee table.” It appeared that they were attempting to hide something. These people were later identified as Mike and Monica Woodward. He felt at that time that there might still be someone else in the apartment. He had arrested persons for drug offenses before and found them to be armed.

When Weigler asked for consent to search the rest of the apartment, defendant said he had some cannabis in the bedroom and he would show them where it was. He said he was the captain of the football team and tried to stay clean during the season. Nothing was seized until after the photographs were taken. All items were seized pursuant to the search warrant. Weigler identified as an exhibit his affidavit for search warrant to which he swore and which he signed before Judge Bone.

On re-cross-examination, Weigler stated he and Tapscott were in uniform on the night in question. The student rider was not. The cannabis seeds he observed on the table were just scattered seeds. They were greenish brown and looked like cannabis seeds to him. There was a pipe in the ashtray. He believed he picked it up and smelled it. He did not have to move anything to see that pipe. There were some magazines on it, but he could still see it. Weigler admitted that he wrote in his report, “[Wjhile talking with the Woodwards I could see several cannabis seeds on the top of the coffee table; I then moved the magazines off of an ashtray which had a small one-hitter cannabis pipe inside it.”

In the affidavit for search warrant, Weigler did not indicate he could smell cannabis while he was standing outside the apartment door. The affidavit stated, “Once in apartment 1-F I smelled an odor of cannabis.”

The 23-year-old defendant was the next witness to testify. Defendant admitted he resided at the apartment in question and Lovell was his roommate. Lovell, however, was in Ohio at the time of the incident. When defendant answered the knock on the door, he thought it might be a friend from down the hall. This was a secured apartment building. To access the hallway, a person would have to have a key or be let in by a resident. Defendant attempted to use the peephole, but could not see through it. The door of the apartment opened into the hallway. Defendant opened the door about three inches to see who was at the door. He observed three persons. Two were uniformed police officers. He was asked if he was Steve Bosse. He said he was. Defendant was then arrested for fleeing police. Defendant stated none of the three said anything to him about coming in. When he opened the door and saw the officers, he was startled and stepped back. The officers opened the door. He believed it was Weigler who opened the door because he was in front of the others. As Weigler opened the door, defendant took one step back and stopped. As he opened the door, Weigler told defendant he was under arrest. The other two persons followed Weigler into the apartment. Defendant and the two persons on the couch were all frisked. Defendant was cuffed with his hands behind him and placed in a sitting position on the floor about six feet from the doorway and against the wall. Weigler then walked around the apartment. Defendant was about 12 feet from the coffee table and defendant saw Weigler go over to the coffee table and move things around on the coffee table. Weigler walked down the apartment hallway. He did not say anything to defendant before he did that. None of the officers gave him his Miranda rights. When Weigler returned, he told defendant he was under arrest for possession of cannabis. After Weigler got off the telephone, he asked defendant to give consent to a search. Weigler explained that means “you give us permission to look throughout the house, because if you don’t we will bring in a canine dog and they’ll find everything.” Defendant said he would show them where it was. Defendant said he gave his consent because he had never been arrested before, he was on the floor, Weigler is a rather large person, and he said he was going to bring in the dogs and “I had no idea what that means, but I didn’t want any part of it.” Weigler was a police officer, and defendant thought he had to show them where it was. Defendant went back into the bedroom with them and told them it was in the top dresser drawer. Weigler opened the drawer, but did not touch anything in it. Weigler asked if this was all of it and whether there was any “coke” or anything, and defendant said, “no, sir, that’s it.” Weigler did not open the white box at that time. Defendant was then transported to the police station. Later, while in conference with Detective Lael, Lael received a telephone call and then inquired of defendant about the syringes that were found. Lael told defendant the officers were angry. They felt defendant had lied to them because they found the syringes.

Joe Tapscott testified he smelled burning cannabis while outside the apartment door. Weigler knocked on the door and defendant answered. Weigler asked defendant if he were Steven Bosse. Defendant responded he was. Weigler then asked why he ran from Barney’s and defendant said the bartender told him to leave. Weigler then said the officers needed to speak to him and asked if defendant would mind if they came in. Defendant made no response, but opened the door. Neither Weigler nor Tapscott opened the door. Tapscott’s testimony as to what happened confirmed Weigler’s testimony. Tapscott observed the rolls of cannabis, cash, checks, and two syringes in the dresser drawer.

On cross-examination, Tapscott indicated he had just completed his second year on the force. They smelled the odor of cannabis in the hallway. They did not sniff at the bottom of the door to determine if it was emanating from there. There were other apartment entrances onto the hallway. Weigler knocked on the door. No one announced that it was the police at the door, and Weigler put his thumb over the peephole. When defendant opened the door, Tapscott and the student rider were standing to Weigler’s left. Tapscott was standing away from the opening of the door. The conversation took place while the door was open. Weigler asked defendant why he left. Defendant said the bartender told him to leave. The officers told defendant they had ordered him to remain there. Then Weigler asked if they could come in. The door opened, and they entered. Defendant was backing up as they came in.

Tapscott admitted his report stated only that, after defendant opened the door, Weigler advised defendant they needed to talk and he allowed them in. None of the other conversation to which he testified was in the report. In the written report, Tapscott stated, “Once inside, Sergeant Weigler asked Steve Bosse why he left Barney’s Pub when he was told by both of us to remain.” Tapscott testified this conversation took place both in the hallway and in the apartment. As a matter of clarification, the court asked, “The door came open, walked in, and your words were that Officer Weigler placed him under arrest?” To this question the witness responded, “Yes. Yes, sir.”

Brett Taylor was riding with Tapscott on the night of the incident. He was a 20-year-old student at MacMurray College. While outside the apartment, he observed an odor, but he was not exactly sure what it was. He heard voices inside the apartment. Weigler knocked and put his thumb over the peephole. Defendant opened the door. Weigler asked if they could talk to him and defendant stepped back and let them in. Then Weigler asked why defendant fled. Defendant appeared scared, agitated, and tense. The defendant was then cuffed and asked to sit on the floor. No force was involved in the entry of the apartment. Defendant opened the door to the apartment. On cross-examination, Taylor said he thought the stepping back by defendant was an indication of permission to enter. He believed defendant said they could enter, but he did not remember the defendant’s exact words. Taylor testified that when Weigler asked defendant if he minded if they speak to him, defendant said okay, and then stepped back. It was inside the apartment that Weigler asked defendant why he left Barney’s.

Weigler was then recalled as a witness by the State. He stated that when he asked permission to enter, the defendant opened the door.

In an attempt to overturn the suppression order, the State raises two contentions on appeal, to wit: (1) defendant consented to the officers’ entry into his apartment, and (2) Weigler’s protective sweep of the apartment was constitutionally permissible under Maryland v. Buie (1990), 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093. We do not reach the second contention since the trial court’s finding that the defendant did not consent to the officers’ entry into his apartment was not clearly erroneous. No argument is made by the State that exigent circumstances existed which justified a nonconsensual entry.

Even a suspect who flees to his own residence to escape capture has not forfeited his right to be free from warrantless arrest in his home. (People v. White (1987), 117 Ill. 2d 194, 214-15, 512 N.E.2d 677, 684.) The fourth amendment to the United States Constitution (U.S. Const., amend. IV) prohibits warrantless, nonconsensual arrests in the home in the absence of exigent circumstances. (People v. Henderson (1990), 142 Ill. 2d 258, 298, 568 N.E.2d 1234, 1253.) In People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608, 611, the Illinois Supreme Court stated the following:

“We agree that generally an arrest warrant is the desired means by which an individual’s right to privacy is protected. (Payton v. New York (1980), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1381-82; McDonald v. United States (1948), 335 U.S. 451, 453, 93 L. Ed. 153, 157, 69 S. Ct. 191, 192.) However, when voluntary consent is given to enter one’s residence and an arrest is effected based on probable cause, the suspect’s rights under the fourth amendment are not violated, even in the absence of exigent circumstances. The standard for valid consent applied by the Supreme Court in a variety of circumstances is whether that consent is voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2058-59; Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1791. See Johnson v. United States (1948), 333 U.S. 10, 13, 92 L. Ed. 436, 440, 68 S. Ct. 367, 368-69.)”

In Bean, the Payton and Bumper cases were distinguished, Payton involving entry by force (crowbars used to break down a door) and Bumper involving entry by deceit (the homeowner was told the officers had a search warrant which was not displayed). Bean, 84 Ill. 2d at 70, 417 N.E.2d at 611.

In Henderson (142 Ill. 2d at 298-99, 568 N.E.2d at 1253-54), the Illinois Supreme Court explained:

“[w]hat words or conduct constitute consent to enter a home has never been explicated by the Supreme Court. (But see Bumper, 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (defendant’s grandmother’s allowing police to enter after they falsely claimed to have a search warrant was not voluntary consent, but the product of coercion).) Although the lower courts generally agree that consent to enter a residence validates a warrantless arrest (2 W. LaFave, Search & Seizure §6.1(c), at 582 (2d ed. 1987) (and cases cited)), there is little authority as to what constitutes consent in the absence of an express verbal statement. But see United States v. Briley (8th Cir. 1984), 726 F.2d 1301 (valid consent was given when defendant’s girlfriend told police officers defendant was in her apartment and they should come with her, and girlfriend then opened apartment door wide and gestured toward defendant, who was standing in the apartment; police entered and arrested defendant); State v. Blair (Mo. 1982), 638 S.W.2d 739 (consent given by woman’s opening apartment door in response to police officer’s knock, and, after officer asked if defendant was there, opening door wide and stepping back; officer then walked to back of apartment and arrested defendant).
This court has held that a warrantless arrest in the home is rendered valid when the police are given voluntary consent by a defendant or a third party who has control over the premises. (Compare People v. Bean (1981), 84 Ill. 2d 64, 69-70 (defendant’s mother expressly invited police to enter and they did not need to get consent to advance past threshold and enter another room), with People v. White (1987), 117 Ill. 2d 194, 221 (no consent when police pushed past man who opened front door without requesting his permission to enter).) But this court has not decided what standard the alleged consent has to meet or whether the consent needs to be unequivocal and specific. We now hold that, when a court is deciding whether consent was given (not whether that consent was voluntary), the circumstances must have been such that the police could have reasonably believed they had been given consent to enter.”

In Henderson, the trial court found the officers had consent to enter the apartment and the supreme court affirmed that finding, even though defendant’s mother testified, contrary to the police officers, that she did not give consent and the officers just rushed in and asked for defendant. Henderson, 142 Ill. 2d at 294-300, 568 N.E.2d at 1251-54.

Defendant relies on the Illinois Supreme Court decision in White, which upheld the trial court’s determination that no voluntary consent was given for the police to enter. In White, in spite of officers’ testimony that they were “permitted” into the apartment, the court found the door was opened for another person and that the person opening the door did not know the police were waiting to push past her. White, 117 Ill. 2d at 221, 512 N.E.2d at 687.

We have reviewed the facts of this case very thoroughly. While we may not have decided the matter as the trial court did, it is clear that the trial court’s decision rests on a determination of witness credibility. The trial court found defendant more credible.

Here, the officers, knowing where defendant lived, went there for the purpose of arresting him for two relatively minor offenses. The officers had no arrest or search warrant and entered a secured building with the assistance of the manager. Proceeding to the door of defendant’s apartment, the officers knocked on the door, did not announce their office, and covered the peephole in the door so as to require any occupant to open the door in order to observe who was standing outside. Defendant opened the door of the apartment, which opened outward into the hall of the apartment building, about three inches.

The trial court could reasonably find that the police never intended to wait for a verbal consent to enter the apartment from defendant, but entered the apartment on any movement which could arguably be interpreted to be consent. The test for determining whether the officers understood consent to enter was given is not merely movement, but movement which reasonably conveys a message. In Henderson, it was opening the door and pointing the way. Merely because a person answering the door takes a step backward upon seeing the police does not, in the absence of other motions or gestures, provide the police with the reasonable belief that consent to enter was given. The suppression of the evidence was not clearly erroneous.

• For the foregoing reasons, the judgment of the circuit court of Morgan County was affirmed.

Affirmed.

KNECHT and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    GEORGE G. KERASOTES et al., Plaintiffs-Appellees and Cross-Appellants, v. ESTATE OF NICHOLAS G. KERASOTES et al., Defendants-Appellants and Cross-Appellees.
    Fourth District
    No. 4—91—0856
    Opinion filed December 17, 1992.

      Craig A. Randle and James R. Potter, both of Londrigan, Potter & Randle, P.C., of Springfield, for appellants.
    Patrick J. Cadigan, of Hinshaw & Culbertson, of Springfield, and Bryan Cave, Mark S. Deiermann, and W. James Nabholz III, all of St. Louis, Missouri, for appellees.
   JUSTICE COOK

delivered the opinion of the court:

This action arises out of financial disputes following the dissolution of the Kerasotes theater business. The trial court resolved the disputes and awarded plaintiffs certain monies. Defendants appeal, arguing the court erred by (1) holding that Kerasotes Enterprises Partnership had a duty to indemnify plaintiff, GKC Theaters, Inc. (GKC Theatres) (formerly Kerasotes-Rialto Theatres, Inc. (Kerasotes-Rialto)), for money Kerasotes-Rialto paid to settle a lease dispute with the owner of the Pioneer drive-in; (2) awarding plaintiff GKC Theatres additional money for soft drink rebates and Screen Vision advertising revenues; (3) awarding plaintiff GKC Theatres money for certain missing equipment claims; and (4) awarding plaintiffs prejudgment interest. Plaintiffs cross-appeal, contending the trial court erred by (1) failing to award plaintiff GKC Theatres the proper amount of SuperSaver income to which it was entitled; (2) failing to award plaintiff GKC Theatres the proper amount for soft drink rebates and Screen Vision advertising revenues; (3) failing to compensate plaintiff GKC Theatres for certain missing equipment claims; and (4) holding plaintiff GKC Theatres responsible for the interest on the mortgage of the Castle theater and Castle’s property taxes. We affirm in part, reverse in part, and remand with directions.

I. Background

The Kerasotes theater chain was operated through various corporations and partnerships owned, jointly or individually, by the four Kerasotes brothers, George, Louis, Nicholas, and John. Each possessed a personal corporation bearing his name: George G. Kerasotes Corporation, Louis G. Kerasotes Corporation, John G. Kerasotes Corporation, and Nicholas G. Kerasotes Corporation. The individual theaters were operated by five separate corporations: (1) Kerasotes Illinois Theaters, Inc.; (2) Kerasotes-Rialto Theaters, Inc.; (3) Kerasotes Indiana Theaters, Inc.; (4) Kerasotes Iowa Theaters, Inc.; and (5) Kerasotes Missouri Theaters, Inc. These theater corporations, in turn, were owned by the brothers in their individual capacities or through their personal corporations. Each brother also owned a one-fourth interest, through his personal corporation, in Kerasotes Enterprises Partnership (Kerasotes Enterprises) and a one-fourth interest, in his individual capacity, in Kerasotes Management Partnership (Kerasotes Management). Kerasotes Enterprises contracted with the theater corporations to provide management and administrative services, for which it received a percentage of the gross revenues of the theater corporations. It, in turn, delegated the administrative and managerial services by contract to the four personal corporations. Kerasotes Management provided loans to the theater corporations that were in need of funds. Additionally, the parties held interests in two building partnerships, Kerasotes 106 Building Partnership and Kerasotes Building Partnership.

A number of disputes arose between the parties with regard to the general management and operation of the theater business. In an attempt to resolve the disputes, the parties entered into a dissolution agreement on September 13, 1985, which sought to terminate any future business relationships between them and to divide the assets of the theater business. Under the provisions, defendants were to transfer their shares of Kerasotes-Rialto to plaintiff George Kerasotes, vesting 100% ownership of this corporation in him, and he was to transfer his shares in Kerasotes Illinois, Indiana, Iowa, and Missouri theaters to the defendants, vesting 100% ownership of these corporations in them.

After the agreement, disputes developed regarding the amount plaintiffs were to receive under the agreement, and on January 26, 1987, plaintiffs filed a 14-count complaint against defendants; they subsequently filed an amended 10-count complaint. Plaintiffs sought the following: (1) damages resulting from breach of contract (counts I, II, III); (2) an accounting of Kerasotes Enterprises pursuant to sections 21 and 22 of the Uniform Partnership Act (Act) (Ill. Rev. Stat. 1991, ch. 106%, pars. 21, 22) (count IV); (3) a dissolution and accounting of Kerasotes Management pursuant to sections 21 and 22 of the Act (Ill. Rev. Stat. 1991, ch. 106½, pars. 21, 22) (count V); (4) damages resulting from a breach of fiduciary duty (counts VI and VII); (5) damages for tortious interference with contract (counts VIII and IX); and (6) damages for civil conspiracy (count X).

On May 12, 1988, plaintiffs filed a motion for an accounting and to compel distribution of the assets of Kerasotes Management, which the court denied. On March 2, 1990, plaintiffs filed another motion for an accounting. In essence, this motion sought to bifurcate counts IV and V of the amended complaint. The court granted this motion.

An evidentiary hearing dealing with the accounting issues was held on November 13 and 14, 1990. By the time the evidentiary hearing was completed, the parties had settled several claims. The issues still in dispute were disposed of by letter rulings issued by the trial court on February 20, March 19, and March 27,1991.

On October 22, 1991, the court entered two written orders nunc pro tunc to October 15, 1991. The court found that the George G. Kerasotes Corporation (GGK Corporation) was owed $66,534 plus $53,637 in interest, for a total of $120,171. It further found plaintiff GKC Theatres owed defendants $70,418 plus $56,768 in interest, for a total of $127,186. It took the net difference between the amounts and entered judgment in the amount of $7,015 in favor of defendants. In the second order, the court found plaintiff George Kerasotes was owed $230,961 plus $186,192 in interest from the defendants. Accordingly, it entered judgment in favor of plaintiff in the amount of $417,153. This appeal followed.

II. Pioneer Drive-in

Prior to the dissolution, Kerasotes-Rialto leased the Pioneer drive-in. The only parties to the lease were Kerasotes-Rialto and the landlord. In 1986, after the dissolution agreement had been executed, the lease expired and the owner of the drive-in asserted various claims against Kerasotes-Rialto. No claim was made against George Kerasotes, individually, the defendants, or any other theater corporation. GKC Theatres settled the dispute, and under the terms of the agreement, only GKC Theatres was released from liability. The defendants were neither parties to the settlement or released from liability, nor did they receive notice of this settlement.

The trial court held the cost of the settlement should be shared equally among the parties, and accordingly awarded judgment in the amount of $71,584, representing three-fourths of the settlement, to GKC Theatres. Defendants argue the trial court erred in making such a ruling because it was contrary to the express provisions of the dissolution agreement, which released defendants from such liability. We agree.

A release is a contract, and, therefore, its construction and interpretation is governed by rules of contract law. (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 565, 420 N.E.2d 456, 459.) Under these rules, the trial court is to interpret the scope and effect of the release in a manner consistent with the intent of the parties at the time of its execution. The intention of the parties to the contract must be determined from the instrument itself and construction of the instrument where no ambiguity exists is a matter of law. Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 447, 581 N.E.2d 664, 667.

The agreement states that “the parties [were] desirous of resolving all of their disputes and terminating all future business relations.” It further provides that plaintiff George Kerasotes was to:

“hold the [defendants] and Kerasotes Illinois Theaters, Inc., Kerasotes Indiana Theaters, Inc., Kerasotes Iowa Theaters, Inc.[,] and Kerasotes Missouri Theaters, Inc.[,] harmless and indemnify them from any liability arising from any indebtedness or claim, direct or contingent, arising out of the operation of Kerasotes-Rialto Theater, Corporation, including but not limited to the indebtedness set out on Exhibit E as GGK debt.”

Exhibit E is a list of cities in which Kerasotes-Rialto operates theaters. Defendants also provided George Kerasotes and Kerasotes-Rialto with a similar release, holding them harmless from any liability arising out of the operations of Kerasotes Illinois, Iowa, Indiana, and Missouri.

The agreement is unambiguous and clearly contemplates that claims asserted against individual theater corporations would be the sole responsibility of the party or parties receiving ownership of the particular corporation under the dissolution agreement. The agreement specifically states that plaintiff George Kerasotes would hold harmless and indemnify defendants on any liability arising out of the operation of Kerasotes-Rialto. The claim at issue falls precisely within the purview of this provision: it is based on the operation of Kerasotes-Rialto because Kerasotes-Rialto leased the property.

Plaintiffs, however, argue the release does not encompass this claim because the claim is based on damages to the property which occurred prior to the dissolution, while Kerasotes Enterprises managed the drive-in. That interpretation of the agreement is inconsistent with the express provisions of the agreement and the intent of the parties. The agreement does not distinguish between claims based on predissolution or post-dissolution activities, but rather seeks to resolve all claims. To effectuate this intent, the parties provided each other with reciprocal releases. Although this claim is based on alleged activity occurring before the dissolution, the comprehensive nature of the release is indicative of the parties’ intent to release each other from such claims. Moreover, the agreement specified the claims in which the parties would share in the cost of the defense and any settlement agreed to by the parties. The only circumstances in which the parties would share in third-party liability were those that were “asserted against them jointly arising out of the business relationship.” (Emphasis added.) The present claim was not asserted against the parties jointly, but against Kerasotes-Rialto solely. Therefore, we reverse the trial court’s ruling on this issue.

III. Soft Drink Rebates And Advertising Revenue

Screen Vision paid each theater a fixed amount of money to run its advertisements on the screen before the movie started. Since at least 1982, the advertising revenue received from this practice was recorded as income of Kerasotes Enterprises, rather than the individual theater corporations. The soft drink rebates were similarly treated. Due to the volume of soft drinks purchased cumulatively by Kerasotes Enterprises, the soft drink manufacturers issued rebates. Since at least 1976, these rebates were treated as assets of Kerasotes Enterprises as opposed to the theater corporations.

The dissolution agreement specified that the net assets of Kerasotes Enterprises were to be divided equally among the four personal corporations and that an audit was to be conducted to certify the assets. The audit included as assets of Kerasotes Enterprises the advertising income and soft drink rebates. Plaintiffs alleged GKC Theatres was entitled to an additional $34,920 of the advertising revenue and $7,913 from the soft drink rebates because its predecessor, Kerasotes-Rialto, generated more of those rebates than the other corporation. These amounts owed were derived by determining the amount of advertising revenue and soft drink rebates earned by Kerasotes-Rialto less the 25% GGK Corporation was to receive in the distribution of the assets.

The trial court held the advertising income and soft drink rebates were to be divided equally. It then apparently took plaintiffs’ figures of $34,920 and $7,193, divided them by four and awarded each brother’s corporation $8,730 in additional advertising revenue and $1,798 in soft drink rebates.

On appeal, plaintiffs argue by cross-appeal that the trial court erred in that GKC Theatres should have received the full amount. To support this, plaintiffs argue Dennis Kerasotes, controller of Kerasotes theaters, incorrectly listed the revenue as income of Kerasotes Enterprises. Rather, it should have been handled as income of the individual theaters. Plaintiffs further allege that George Kerasotes was not aware of the accounting procedure until the dissolution, and because defendants failed to provide a “full and frank disclosure” to him, this issue should be resolved in their favor.

Conversely, defendants argue it was error for GKC Theatres to receive any additional money from the advertising revenue and the soft drink rebates because the intent of the parties was to divide the assets of Kerasotes Enterprises based on the existing “books and records” of the partnership. The “books and records” listed advertising revenue and soft drink rebates as assets of Kerasotes Enterprises. Defendants assert this revenue was divided equally among the parties and the trial court erred in awarding GKC Theatres additional money. We agree.

The parties do not dispute that at the time of the settlement, and for a number of years prior, the advertising revenue and soft drink rebates were treated as income of Kerasotes Enterprises. The audit reflected this, and these amounts were included in determining the net assets of Kerasotes Enterprises. It does not sit well for plaintiff George Kerasotes, who was the president and chief executive officer of Kerasotes Enterprises, to now allege the accounting procedure employed for many years was incorrect and that he did not know that the advertising revenue and soft drink rebates would be included as revenue of Kerasotes Enterprises.

The dissolution agreement provided that “[t]o the extent the assets exceeded] the liabilities” they would be divided equally among the four personal corporations. The parties further agreed that after the execution of the agreement an audit of the books and records of the partnership would be conducted to certify the assets and liabilities of each partnership. Plaintiffs are bound by this agreement and cannot now disregard the terms of it simply because they have discovered the terms are less profitable to them than they anticipated when they entered into it. (Diedrich v. Northern Illinois Publishing Co. (1976), 39 Ill. App. 3d 851, 857-58, 350 N.E.2d 857, 862.) Moreover, courts cannot rewrite contracts to suit either party, but must enforce their terms as written. (Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 514, 557 N.E.2d 383, 389.) The money the trial court held should be divided was money that had already been included in the determination of the net assets of Kerasotes Enterprises, and which was to be divided equally among the four personal corporations pursuant to the terms of the agreement. Under the terms of the agreement none of the parties were entitled to additional money from the advertising revenue or soft drink rebates.

IV. Missing Equipment

After the dissolution agreement had been executed, George Kerasotes conducted inventories of the Bloomington drive-in, and the Irvin, Castle, and Avon theaters and claimed that equipment that was in the theaters before the agreement was not there subsequently. He therefore asked the trial court to award GKC Theatres money for the missing equipment from these theaters.

Plaintiff George Kerasotes testified he inspected the Bloomington drive-in after the break-up of the business and discovered that all the projection and concession equipment was gone (valued at $11,186). It was his understanding that a complete set of projection and concession equipment, all that was necessary to run a drive-in, should have been there. As to the Irvin theater, he alleged that certain equipment had been taken from the theater and transferred to various other Kerasotes theaters. In a letter dated September 27, 1985, he wrote Dennis Kerasotes stating that the following charges were due Kerasotes-Rialto for the transferred equipment: (1) $7,320 for 732 seats which were sent to the Broadway theater, (2) $2,500 for a compressor sent to Mattoon, and (3) $4,000 for a new boiler sent to the Rogers theater in Poplar Bluff. Plaintiff George Kerasotes contended he was still owed for these items because this equipment was originally owned by the Irvin theater, and GKC Theatres should be compensated for its removal.

With respect to the missing equipment from the Avon and Castle theaters, the dissolution agreement provided for the sale of four theaters, including the Castle and Avon, from Kerasotes Illinois to Kerasotes-Rialto for $168,436.10. George Kerasotes took possession of these theaters on October 1, 1985. It was his understanding that the purchase price included all items relating to the property. He asserted, however, that several items were missing from the theaters, including two “Kelmar solar cells,” a “Dolby processor” and an “Altec A-4 speaker system” (valued at $2,380) from the Avon theater and two “Kelmar solar cells” and a “Dolby processor” (valued at $1,980) from the Castle theater. Marshall Selkirk, executive vice-president of finance for the George G. Kerasotes Corporation, testified that inventories had been conducted and this equipment was supposedly at the theaters at the time the dissolution agreement was executed but was subsequently removed by defendants. On cross-examination, he admitted he had no personal knowledge of the missing equipment or the inventories but rather received his information from employees of the corporation.

The trial court held that plaintiff GKC Theatres should not receive any money for the missing equipment from the Bloomington drive-in or the Irvin theater, but awarded it $4,350 for the missing equipment from the Castle and Avon theaters. On appeal, plaintiffs argue the trial court erred in not awarding GKC Theatres money for the missing equipment from the Bloomington and Irvin theaters. Defendants argue the trial court erred in awarding GKC Theatres money for the missing equipment from the Castle and Avon theaters because plaintiffs failed to establish that Kerasotes-Rialto owned the equipment, that it was present in the theaters before the agreement, and that it was removed thereafter.

The dissolution agreement does not specifically address what the transfer or purchase of the theaters encompassed. However, the clear intent of the parties was to resolve all disputes and terminate any future business relations. It seems that to effectuate this intent the parties meant to include in the transfer or purchase of the theaters all personal property in the theaters. Therefore, to the extent plaintiffs could prove that certain equipment was at the theaters at the time of the agreement was executed and not afterward, plaintiffs would be entitled to compensation for that equipment. Plaintiffs presented testimony at the accounting hearing, albeit minimal, that inventories of the Avon and Castle theaters had been conducted and certain equipment was missing. While the inventories were not entered into evidence, there is some evidence to support the court’s ruling. Therefore, it cannot be said that the ruling is against the manifest weight of the evidence so that an opposite conclusion is warranted.

As to plaintiffs’ claim for compensation for missing equipment from the Irvin theater, the trial court properly denied it. Plaintiff George Kerasotes knew almost a year before the dissolution agreement was executed that certain equipment had been transferred to other theaters. Because the agreement intended to resolve all disputes between the parties, it appears this claim was incorporated and settled by the dissolution agreement.

The trial court did not award any money to GKC Theatres for the missing equipment from the Bloomington drive-in. Plaintiffs, however, presented relatively the same evidence with regard to this missing equipment claim as to the Avon and Castle theater equipment claims. The trial court gave no explanation for its contrary rulings. Since the court found there was sufficient evidence to support an award for the missing equipment from the Castle and Avon theaters, there should have been sufficient evidence to support an award for the equipment missing from the Bloomington drive-in. Therefore, we hold the trial court should have awarded GKC Theatres money for this claim.

V. Prejudgment Interest

Generally, there is no right to recover prejudgment interest unless it is permitted by statute or there is an agreement between the parties. (City of Peoria Municipal Employees Association v. City of Peoria (1991), 217 Ill. App. 3d 550, 556, 577 N.E.2d 819, 823; In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 118, 559 N.E.2d 819, 831; Alguire v. Walker (1987), 154 Ill. App. 3d 438, 447, 506 N.E.2d 1334, 1341.) The dissolution agreement did not contain a provision for interest nor do plaintiffs rely on any statute to permit the award of interest in this case. Rather, plaintiffs, relying on In re Estate of Wernick (1989), 127 Ill. 2d 61, 535 N.E.2d 876, assert they were entitled to prejudgment interest based on equitable considerations.

The trial court agreed and awarded plaintiffs prejudgment interest at the prime rate. The apparent reason for the court’s ruling was to make plaintiffs whole due to the fact defendants owed them money under the dissolution agreement. Defendants recognize that under Wernick a court can award interest in the “exercise of its equitable jurisdiction,” but argue that the issues decided by the court were not equitable in nature and, therefore, did not give rise to an equitable award of prejudgment interest. Defendants assert that to maintain a suit for an equitable accounting, as opposed to suing in law on an account, plaintiffs must establish the absence of an adequate legal remedy. Since the parties asked for a specific dollar amount for each disputed claim and the court awarded them money judgments, an adequate legal remedy existed, and the court’s equitable jurisdiction was not invoked. An equitable award of prejudgment interest, therefore, could not be given.

Defendants’ assertion that the proceeding was not an equitable accounting is without merit. The burden of proof in a suit for an equitable accounting is on the party that seeks the remedy to prove by a preponderance of the evidence that he has a right to the remedy. (Kennedy v. Miller (1991), 221 Ill. App. 3d 513, 520, 582 N.E.2d 200, 205.) Defendants are correct that in general to sustain an action for an equitable accounting, plaintiffs must show that they have no adequate legal remedy. (Kennedy, 221 Ill. App. 3d at 520, 582 N.E.2d at 205; People ex rel. Hartigan v. Candy Club (1986), 149 Ill. App. 3d 498, 501, 501 N.E.2d 188, 190; 1 Ill. L. & Prac. Accounting §3, at 106 (1988).) One instance, however, in which a legal remedy is inadequate and, therefore, a suit in equity for an accounting is appropriate, is where a fiduciary relationship exists between the parties and a duty rests upon the defendant to render an account. (1A C.J.S. Accounting §25, at 24-26 (1985); 4 J. Pomeroy, Equity Jurisprudence §1421, at 1077-78 (5th ed. 1941); D. Dobbs, Law of Remedies §4.3, at 252-53 (1973).) Moreover, courts of equity have jurisdiction where fiduciary relations exist, and the fact that there is an adequate remedy at law does not deprive equity of jurisdiction where a fiduciary relationship exists between the parties. (Mayr v. Nelson Chesman & Co. (1915), 195 Ill. App. 587, 602; 1 Ill. L. & Prac. Accounting §3, at 106-07 (1988).) The dissolution of the partnership did not end that relationship here since the dissolution of a partnership does not end the fiduciary relationship for purposes of an accounting or the winding up of the partnership’s affairs. Hamilton v. Williams (1991), 214 Ill. App. 3d 230, 247, 573 N.E.2d 1276, 1288.

The parties in the present case stood in a fiduciary relationship with each other as they were partners in a partnership. (Couri v. Couri (1983), 95 Ill. 2d 91, 98, 447 N.E.2d 334, 337; Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78-79, 115 N.E.2d 323, 326; Kennedy, 221 Ill. App. 3d at 520, 582 N.E.2d at 205; Hamilton, 214 Ill. App. 3d at 247, 573 N.E.2d at 1288.) Because a fiduciary relationship existed, a basis to invoke the equitable jurisdiction of the court to provide for an accounting existed. Under these circumstances, an accounting would be ordered without a showing that plaintiffs’ legal remedies were inadequate. (See Hartigan, 149 Ill. App. 3d at 501, 501 N.E.2d at 190.) The court, therefore, was sitting in equity and could award prejudgment interest if appropriate.

We also find there was sufficient equitable considerations to warrant an award of prejudgment interest.

The supreme court in Wernick stated:

“The goal of proceedings sounding in equity is to make the injured party whole. The current trend being employed to accomplish this goal is to allow an award of interest on funds owing so that justice might be accomplished in each particular case. [Citations.] In Illinois, prejudgment interest may be recovered when warranted by equitable considerations, and disallowed if such an award would not comport with justice and equity. [Citations.] Moreover, in equity the amount of interest allowed need not fall within any precise terms. [Citation.] Whether equitable circumstances support an award of interest is a matter lying within the sound discretion of the trial judge. [Citations.] Such a determination will not be disturbed on review unless it constitutes an abuse of discretion.” Wernick, 127 Ill. 2d at 86-87, 535 N.E.2d at 887-88.

This litigation has continued for several years and has produced many volumes of record. In these years, the parties had the opportunity to receive interest on the sum which rightfully belonged to the other party. Each, in turn, lost the opportunity to earn interest on the money to which it was entitled. To make the parties whole for the loss of the use of this money, the court could have found awarding prejudgment interest was appropriate. Under the circumstances, the trial court did not abuse its discretion in awarding prejudgment interest to the parties.

Plaintiffs urge that an award of higher interest is needed to wholly compensate them for their loss. As stated, the determination of interest is within the discretion of a judge, and it does not seem that the interest awarded inadequately compensated them. The trial court did not abuse its discretion in failing to award plaintiffs interest at a higher rate.

VI. Supersaver Tickets

SuperSaver tickets are advance admission tickets sold at discount. These tickets could be used for admission at any of the Kerasotes theaters. When a SuperSaver ticket was sold, the obligation to provide admission was recorded as a general liability of the partnership. When a SuperSaver ticket was used for admission, the admitting theater corporation would redeem the ticket for the purchase price from Kerasotes Enterprises.

Pursuant to the dissolution agreement, Kerber, Eck, and Braeckel conducted an audit of Kerasotes Enterprises. The audit reflected a liability of $408,593 from reduced admission tickets (unredeemed SuperSaver tickets). The firm qualified this amount by noting that due to the nature of the partnership’s records they were unable to satisfy themselves as to the proper amount of the liability recorded on the books. Kerber, Eck and Braeckel, however, included the $408,593 in its audit as a liability of the partnership and deducted it from the amount of assets of Kerasotes Enterprises to determine its net assets to be divided among the four personal corporations.

Since the theater corporations were no longer going to be able to redeem the tickets for payment from Kerasotes Enterprises, because it was going to be dissolved, there would be an additional $408,593 to be divided. The court ordered the unredeemed amount of SuperSaver tickets divided equally among the four personal corporations.

On appeal, plaintiffs argue that GKC Theatres should have received 58.57% ($289,313) of the $408,593 rather than 25% ($102,148). They support this contention by arguing that Kerasotes-Rialto sold 58.57% of the tickets and therefore should have received credit on these sales when they were sold. George Kerasotes believed that showing the sale of SuperSaver tickets as a liability of Kerasotes Enterprises was incorrect, but rather it should have been income of the individual theater corporations. As with the soft drink rebates and advertising revenue, plaintiffs now want to change a bookkeeping practice employed for several years to a policy more favorable to them.

The parties do not dispute that, at the time of the audit and the dissolution agreement, the sales of SuperSaver tickets were treated as a liability of Kerasotes Enterprises, and that as of September 30, 1985, the theater corporations could no longer redeem tickets with Kerasotes Enterprises, even though tickets could still be redeemed by patrons at theaters. The parties do not dispute the amount of unredeemed tickets, but do disagree on the distribution of this money.

The language of the agreement is clear that the net assets of Kerasotes Enterprises were to be divided equally among the four personal corporations. Although technically the unredeemed SuperSaver tickets were characterized as a liability, they were no longer a liability if the partnership was no longer going to redeem them. It was money which was subject to distribution pursuant to the terms of the contract and therefore should have been divided equally. The contract terms appear clear and should be given effect. The trial court correctly divided the money from the unredeemed tickets equally.

VII. Property Taxes And Interest On The Mortgage

Under article V of the dissolution agreement, George Kerasotes agreed “that within thirty (30) days of the receipt of the stock in Kerasotes-Rialto Theater Corporation *** he [would] take all action necessary to effectuate the purchase of [the Castle and Virginia theaters] by Kerasotes-Rialto Theater Corporation from Kerasotes Illinois Theaters, Inc.” Upon his failure to effectuate the purchase within 30 days, he obligated himself to purchase the properties within 30 days thereafter. He and Kerasotes-Rialto further agreed “that upon the completion of the purchase provided for in this Article, [George Kerasotes] and Kerasotes-Rialto Theater Corporation [would] hold Kerasotes Illinois Theaters, Inc.[,] harmless from any indebtedness constituting a lien against the premises as of the date of this Agreement.” At the time the agreement was executed, the Castle theater was encumbered by two mortgages from Peoples Bank of Blooming-ton and American State Bank. Kerasotes-Rialto took possession of the theaters on or around October 1, 1985, and since then has not tendered the purchase price to the defendants nor have defendants transferred title of the theaters to Kerasotes-Rialto. The trial court ordered GKC Theatres to reimburse defendants for the interest paid on the mortgage for the Castle theater and the property taxes paid on the Virginia and Castle theaters.

Plaintiffs argue that GKC Theatres should not be responsible for the accrued interest on the principal and the property taxes because defendants did not transfer title of the properties to GKC Theatres and because interest and taxes which accrued after the date of the agreement are not ‘‘indebtednesses] constituting *** lien[s] against the premises as of the date of” the dissolution to which they agreed to hold defendants harmless.

The agreement is clear that plaintiffs were to hold defendants harmless from any indebtedness constituting a lien against the theaters as of the time of the agreement. The mortgage was a lien on the property prior to the execution of the agreement, and the interest on the mortgages would also be liens on the property. The interest on the mortgage was part of the indebtedness, and defendants would not be liable for this debt. As for the property taxes, although they were not a lien against the property at the time of the agreement, it seems as though the parties’ intent was to make plaintiffs responsible for all debts upon their taking possession of the property. Therefore, the trial court did not err in ruling that because plaintiffs had actual possession of the theater GKC Theatres was required to reimburse defendants for interest and taxes paid.

Based on the foregoing reasons, we affirm the trial court’s rulings in part, reverse in part, and remand for a recalculation of money owed the parties and interest thereon consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERSCHEL JOSEPH PLACE, Defendant-Appellant.
    Fourth District
    No. 4—91—0942
    Opinion filed December 17, 1992.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Brett Irving, State’s Attorney, of Pittsfield (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On November 11, 1991, following a jury trial in the circuit court of Pike County, defendant Herschel Joseph Place was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9—1(a)(1)), attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, par. 8—4(a)), and two counts of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A—2). He was subsequently sentenced to concurrent terms of 25 years’ imprisonment for first degree murder and 15 years’ imprisonment for attempt (first degree murder). Defendant was not sentenced on the two armed violence convictions.

On appeal, defendant contends the trial court abused its discretion by (1) denying his motion for a change of venue based on adverse publicity, and (2) granting the State’s motion in limine preventing defendant from offering any evidence regarding whether he suffered from post-traumatic stress disorder (PTSD). In addition, defendant contends the court erred in sentencing by considering as a factor in aggravation that his conduct caused serious harm, and ordering him to pay restitution within 12 months of his release from the Department of Corrections. We affirm in part and reverse in part.

Defendant was originally charged with the offenses of first degree murder and armed violence for the shooting death of Steve Howland. In addition, defendant was charged with the offenses of attempt (first degree murder), armed violence, and two counts of aggravated battery for shooting and injuring James McDowell. Prior to trial the court granted the State’s motion to nol-pros the two counts of aggravated battery. Following a trial on September 13, 1991, the court entered an order declaring a mistrial after the jury was unable to reach a verdict. Subsequently, defendant was tried a second time and convicted on all counts.

Defendant does not challenge the sufficiency of the evidence supporting the convictions; therefore, only a brief summary of the evidence is necessary for an understanding of the issues. The evidence adduced at trial established that on October 8, 1990, defendant was at the Black Lantern Tavern located in Barry. Defendant arrived at the tavern at approximately 8:30 a.m. and indisputably continued to drink from approximately 10 a.m. until 4:30 p.m., at which time the shootings occurred. The victims, Howland and McDowell, arrived at the tavern somewhere between 9 a.m. and 11 a.m., and they too drank continuously until the time of the shootings. The bar at the tavern was shaped like an L, and throughout the day defendant was seated in the middle of the long side of the L, and the victims were seated at the short side of the L. There were other patrons also seated at the bar that day. Numerous witnesses to the shootings testified at the trial, as well as the complaining witness McDowell, and defendant.

McDowell testified regarding the shootings at the Black Lantern Tavern as follows: (1) around 10:30 a.m. defendant said “something about a 965” (the local union) and using offensive language he responded to defendant indicating he disliked “965”; (2) he believed defendant kept glaring at the end of the bar where he was seated and at approximately 3:30 p.m. or 4 p.m. he approached defendant and “asked [defendant] if he had something on his mind that e a glared down there, if there was a problem [he would] like o now what it was, and [defendant] said, No, go away and [leave] him alone”; (3) he then returned to where he was seated and stepped behind Steve Howland to hear what another person was saying; (4) he then heard “a crack like a loud firecracker and [he] looked down, and [Howland] was humped over, and [he] looked down, and there was defendant with a gun pointed that direction, and [defendant] said McDowell *** I’m going to kill you”; (5) he grabbed a barstool, using it to attack defendant, and he and defendant wrestled over the gun; (6) he got shot in the head twice but was able to take the gun from defendant; and (7) he threw the gun on the floor.

Defendant testified as follows: (1) he did not intend to harm Howland; (2) he does not know if he killed Howland at the Black Lantern Tavern; (3) he had known McDowell for four to five years; (4) on the day of the shootings he did not intend to harm McDowell; (5) he did not dislike McDowell; (6) he did not remember hurting anyone at the tavern; (7) he joined the Army and later served in Vietnam; (8) he was involved in combat in Vietnam and operated a bulldozer there to cut down trees; (9) he had a close friend in Vietnam who was killed in combat; (10) he was very much bothered by the loss of his friend; (11) he remained bothered from the loss of his friend after leaving the military, which manifested in nightmares, particularly each fall, which was the time of year his friend was killed; (12) he did not recall thinking of his friend who died in Vietnam on October 8, 1990, but he heard he had mentioned his friend’s name after the shootings; (13) he consumed a lot of alcohol in Vietnam; (14) he has been drinking alcohol after work for the last 20 years and the amount of his consumption of alcohol has been increasing; and (15) on the day of the shootings he consumed 15 to 20 or more beers.

Defendant further testified that the last thing he remembered prior to the shootings was drinking a shot of whiskey and several beers. The next thing he remembered was getting off the floor after wrestling with McDowell. Defendant stated both he and McDowell had blood all over them. He picked his glasses off the floor and noticed his pistol lying against the wall and picked it up and laid it on the bar. Defendant testified he then asked Charlotte Brown, who was standing there, what had happened and she said “I think you just shot a guy.” Brown then helped defendant make a phone call to his brother.

Various witnesses testified they either heard a gunshot coming from defendant’s direction or saw defendant standing with a gun in his hand pointing toward where Howland was seated. Steven Colburn testified that approximately 10 to 14 days before the shootings he saw a loaded .22 caliber handgun in the glove compartment of defendant’s car. Deputy sheriff Chris Dolbeare testified that in the squad car en route to the hospital defendant stated that he had gotten into a fight with McDowell, but denied getting a gun from his car or touching the gun used in the shootings prior to finding it on the floor and placing it on the bar. Defendant had several expert witnesses testify establishing he had a 0.23 blood-alcohol content following the shootings, and that he had been an alcoholic for 20 years and had experienced alcoholic “blackouts.”

Initially, defendant maintains the court erred in denying his pretrial motion for change of venue. The motion asserted that the inhabitants of Pike County were prejudiced against him to such a degree that he could not receive a fair trial in Pike County. In particular, the 'motion advanced that defendant believed “that many people in the county [knew] the facts of this case and that they believe[d] that [he] did shoot a firearm on October 8, 1990, which caused the death of Steve Howland and caused the injuries to James McDowell,” and that this prejudice first became known to him on September 9, 1991. In support, defendant attached to the motion the affidavits of approximately 103 citizens of Pike County. The contents of all the attached affidavits were identical, and stated as follows:

“The undersigned, being first duly sworn, deposes and says that he or she is a reputable person and is now and has been for at least one year past an actual resident of Pike County *** [and that the] affiant believes that the inhabitants of said Pike County are so prejudiced against [defendant] *** that [defendant cannot have a fair and impartial trial in this court.”

Initially, at the hearing on the motion for change of venue the court granted the State’s motion to strike 46 unnotarized affidavits signed by Pike County citizens. The court denied the State’s motion to strike the remaining 57 notarized affidavits as conclusory, and noted that although the affidavits were “broad and general *** they [had] some relevance.” The court also noted that it had reviewed the newspaper articles regarding the case. In support of the motion, defense counsel primarily argued that the affidavits were based on the affiants’ belief that due to the many witnesses of the shootings much prejudicial information, allegedly false, had spread by word of mouth throughout Pike County. The court denied the motion acknowledging “the difficulties in a small community of picking a jury on a high visibility case.” However, the court concluded that defendant’s right to a fair and impartial jury would be sufficiently protected by limiting voir dire to questioning panels of four potential jurors. The court also con-eluded that despite the adverse publicity, potential impartial jurors could be found in Pike County, outside of the community of Barry, where the shootings occurred.

Defendant maintains that the instant case warrants the application of the “presumed prejudice standard” based on the allegedly extensive adverse pretrial publicity pervading the small rural community of Barry and the rest of Pike County. Defendant raises the “presumed prejudice standard” relying on Rideau v. Louisiana (1963), 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417, and Coleman v. Kemp (11th Cir. 1985), 778 F.2d 1487. However, this court in the recent decision of People v. Friday (1992), 232 Ill. App. 3d 1047, 1054, 598 N.E.2d 302, 307, rejected the contention that the United States Supreme Court in Rideau set forth a “presumed prejudice standard” in cases involving pervasive adverse pretrial publicity. Instead, the Friday court held that “[t]he appropriate analysis for us to make is to consider both the voir dire of the jurors together with the rest of the record to determine whether the court erred in denying a change of venue.” Friday, 232 Ill. App. 3d at 1055, 598 N.E.2d at 307, citing People v. Sanchez (1986), 115 Ill. 2d 238, 263, 503 N.E.2d 277, 285; see also People v. Taylor (1984), 101 Ill. 2d 377, 390-91, 462 N.E.2d 478, 484-85.

In considering whether the defendant was denied a fair trial based on the jury’s exposure to pretrial adverse publicity, the Sanchez court stated:

“ ‘Total ignorance of the case is exceptional, and it is not required.’ ([Taylor, 101 Ill. 2d at 386, 462 N.E.2d at 482]; Irvin v. Dowd (1961), 366 U.S. 717, 722-23, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642-43.) It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. [Citation.] In assessing a claim of partiality due to pretrial publicity, a reviewing court has an obligation to evaluate the voir dire testimony of the jurors [citations], and to review the entire record to determine independently whether the defendant received a fair trial.” Sanchez, 115 Ill. 2d at 263, 503 N.E.2d at 285.

Here, although defendant submitted 57 notarized affidavits of Pike County citizens stating they believed he could not receive a fair and impartial jury, none of the affidavits specifically indicated why they thought prejudice existed against him in the entire Pike County area. A general familiarity with the case is not a sufficient basis for a change of venue. (Friday, 232 Ill. App. 3d at 1052, 598 N.E.2d at 305.) Moreover, as set forth by the State at the hearing on the motion, many of the affiants were family members of defendant, or someone who knew defendant personally. Defense counsel never denied the accuracy of that statement. There is no indication how many people were contacted in order to obtain the 57 affidavits, and in any event, 57 affidavits out of the entire Pike County population does not indicate that the adverse publicity was so pervasive that defendant could not have an impartial jury.

Defendant notes that the general population of Pike County is 18,896 people, and in Barry where the shootings took place the population is 1,487 people. Defendant claims that the allegedly extensive adverse publicity in such a small county from newspapers, television, radio and word of mouth made it impossible for him to receive a fair trial, even if the jurors stated under oath that they would disregard anything they may have read, or would be able to put aside any preconception regarding defendant’s guilt. The record contains approximately 10 newspaper articles from the Quincy Herald-Whig and the Jacksonville Journal Courier. The first article was published the day after his arrest, and the remaining articles were published before and during defendant’s first trial, ending on September 14, 1991, reporting that the judge ordered a mistrial because the jury was unable to reach a verdict. Defendant’s second trial began approximately IV2 months after the last newspaper article. The record does not contain any proof of the content of coverage of this case by radio or television.

An examination of the newspaper articles does not show any biased reporting or editorials denouncing defendant or asking for his conviction. The articles reported defendant’s arrest and charges, necessarily reporting the death of one of the victims, and head injuries sustained by the other victim. The articles also quoted certain witnesses’ testimony, including the testimony of the complaining witness and the testimony of defendant claiming he could not remember what happened at the time of the shootings.

Defendant claims that 51 of the 53 potential jurors had heard of the case and all of the actual 12 jurors, and one alternate, knew about the case from television, newspapers, radio or word of mouth. Moreover, defendant maintains the relationships of the potential jurors and/or the actual jurors with the witnesses were so prevalent as to ensure that he could not receive a fair trial.

The voir dire transcript indicates that 53 jurors were examined before the 12 and 2 alternates were selected. Only 11 potential jurors were excused for cause because they could not set aside preconceived opinions of defendant’s guilt. Defendant used all 14 peremptory chailenges, but did not make any request for a juror to be excused for cause based on pretrial publicity. As defendant noted there were some potential jurors who knew witnesses; however, the majority of those potential jurors were not selected. Two actual jurors stated they were acquainted with certain witnesses, but had never been to those witnesses’ homes and did not believe the acquaintanceship would cause them any difficulty in the case. In addition, one juror’s daughter-in-law served as a juror in defendant’s first trial; however, she stated she did not discuss the facts of the case with her daughter-in-law. Nevertheless, the transcript indicates that defendant exercised peremptory challenges on potential jurors who had little knowledge of the case and no relationship with any witnesses. Most all of the jurors knew of the case, but all stated they could set aside what they heard or read and decide the case based solely on the evidence at trial.

The instant case is distinguishable from Taylor (101 Ill. 2d at 399, 462 N.E.2d at 488), where the Illinois Supreme Court affirmed the appellate court’s reversal of the trial court’s order denying that defendant’s pretrial motion for change of venue based on adverse publicity. The Taylor court noted that the media coverage in that case in Peoria was unprecedented. Newspaper, radio, and television stations covered the case reporting details from the day of the crime until the end of the trial. One newspaper article reported that the defendant failed a polygraph test, but that the codefendant passed. Another newspaper article mentioned the defendant’s confession and polygraph results. In addition, the transcript of the voir dire indicated widespread awareness of the case. Taylor, 101 Ill. 2d at 391-92, 462 N.E.2d at 483-84.

As a result of the extensive pretrial publicity the Taylor court concluded that the jurors’ bare assertions that they had not formed opinions or could set aside any opinions were insufficient. The Taylor court placed much significance on the newspaper articles reporting the results of the polygraph, which are inadmissible to prove either guilt or innocence, and the subtle prejudicial effect of this information on jurors. Here, the newspaper reporting of the case did not involve results of a polygraph test, or any type of information that would unfairly prejudice the defendant.

Moreover, here the trial court took steps to ensure defendant received a fair and impartial jury. The jurors were questioned in panels of four to prevent potential jurors from being influenced by the statements of other potential jurors. The court questioned the jurors extensively about their knowledge of the case and any relationship with witnesses. The court stressed that the juror would have to set any knowledge or opinions aside and render a verdict solely on the evidence at trial. We conclude that based on all the evidence the court did not err in denying defendant’s motion for change of venue.

In addition, defendant maintains the court erred by granting the State’s supplemental motion in limine, thereby preventing him from introducing evidence that he suffered from PTSD at the time of the shootings. The record indicates that prior to trial the State filed a motion in limine seeking, among other things, to prevent defendant from introducing evidence of PTSD and his Vietnam experiences. The motion asserted that PTSD was a mental disorder and defendant had not raised the insanity defense. In addition, the motion maintained that PTSD and defendant’s Vietnam experience were not relevant to defendant’s anticipated defense of intoxication and that such evidence would only confuse the jury. The State subsequently filed a motion for psychiatric evaluation alleging that defendant claimed to suffer from PTSD and had not been diagnosed by a qualified psychiatrist.

At the hearing on the State’s motion in limine and motion for psychiatric evaluation, defense counsel stated that he intended to introduce testimony from a clinical social worker that defendant suffered from PTSD. Defense counsel argued that the evidence of PTSD and defendant’s Vietnam experience was not going to be used to prove defendant had a mental illness, but rather, to explain why defendant had an alcohol abuse problem, which was allegedly relevant to his defense of intoxication. The court granted the State’s motion for a psychiatric evaluation, and took the motion in limine under advisement until the completion of the psychiatric examination.

Subsequently, the State filed a supplemental motion in limine seeking to preclude defendant from introducing evidence of PTSD or his Vietnam experience, alleging defendant failed to comply with the court-ordered psychiatric examination. Following a hearing, the court granted that State’s supplemental motion, stating in part:

“The Court is of the opinion that the Defendant cannot attempt to present evidence which may result in the jury being sympathetic or bias[ed] or prejudice^] about his [PTSD], whether or not that exists or not and then refuse at the same time as a matter of trial strategy to not submit to the examination. *** [Defendant’s expert] will not be allowed to testify on those issues. I realize his area of expertise is broad, and he may testify on the issue of alcoholism. In addition, the State has in past stated good reasons for excluding some evidence dealing with [PTSD], separate from the refusal of the examination.”

The court did allow evidence that defendant was a soldier in Vietnam and, while there, drank a lot of alcohol. Defendant does not argue on appeal that the court erred in ordering a psychiatric examination.

Defendant contends the court’s order precluding him from introducing evidence of PTSD was a denial of his sixth and fourteenth amendment right to present a defense and was in violation of section 115—6 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115—6). We disagree for reasons we will discuss.

Section 115—6 of the Code provides for the appointment of a psychiatrist or clinical psychologist if, among other defenses, the defendant raises the defense of intoxication or drugged condition. Here, defendant indisputably raised the defense of intoxication. Section 115—6 of the Code further provides as follows:

“Any statements made by defendant to such experts shall not be admissible against the defendant unless he raises the defense of *** drugged condition, in which case they shall be admissible only on the issue of whether he was *** drugged. The refusal of the defendant to cooperate in such examination[] shall not automatically preclude the raising of the aforesaid defenses but shall preclude the defendant from offering expert evidence or testimony tending to support such defenses if the expert evidence or testimony is based upon the expert’s examination of the defendant. If the Court, after a hearing, determines to its satisfaction that the defendant’s refusal to cooperate was unreasonable it may, in its sound discretion, bar any or all evidence upon the defense asserted.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 115—6.

Defendant maintains that in accordance with section 115—6 of the Code the court should have taken less drastic measures and only ordered excluded that portion of the expert testimony which was directly learned from the expert’s examination. Consequently, defendant maintains the court should have allowed his expert to testify in general about PTSD symptoms, causes and effects, and in particular how PTSD relates to alcoholism. Defendant notes the court was aware of the breadth of the testimony available to the defense because the court heard evidence on PTSD at the first trial. Defendant claims that pursuant to section 115—6 of the Code the court must make a finding that the defendant’s refusal to cooperate with the court-ordered examination was unreasonable, and here the court failed to make such a specific finding.

Initially, we note that section 115—6 of the Code authorizes a psychiatric evaluation for a defendant who raises the defense of intoxication, and here defendant was not precluded from raising the defense of intoxication by failing to cooperate with the court-ordered psychiatric examination. Evidence of PTSD was only going to be offered to supply the jury with a reasonable explanation for his alcoholism, and such evidence was not necessary for the defense of intoxication, which requires evidence that the intoxication was “so extreme as to suspend the power of reason and render [defendant] incapable of forming a specific intent which is an element of the offense.” Ill. Rev. Stat. 1991, ch. 38, par. 6—3(a).

Section 115—6 of the Code authorized the court to bar all evidence of PTSD if the defendant’s refusal to cooperate with the court-ordered examination was unreasonable. That section does not require the court to make such a specific finding. Here, defendant’s only explanations for failing to cooperate were his fear (1) of giving damaging evidence to the court-appointed psychiatrist, who was suggested by the State; and (2) the State’s request was made so soon before anticipated trial that, if the examiner’s report was prejudicial to defendant, he would not have ample time to find a second psychiatrist to examine him. Clearly, fear of an adverse finding is not a reasonable ground for refusing to submit to an examination. This possibility exists in every case where the prosecution invokes the provisions of section 115—6 of the Code. The order for examination was entered on October 9, 1991, and the trial was set for October 25, 1991. The prosecutor stated that the psychiatrist named in the order had been available at the time of the entry of the order and the defense did not dispute that assertion. Under these circumstances, the court did not abuse its discretion in treating defendant’s refusal to submit to the examination as being unreasonable although no specific finding was made.

Defendant also claims that he was denied his sixth and fourteenth amendment right to a defense by not being allowed to offer evidence of PTSD. Defendant claims evidence of PTSD was relevant as it relates to chronic alcoholism and to specific bouts of intoxication and, therefore, should have been admitted. Defendant refers to People v. Bradley (1988), 172 Ill. App. 3d 545, 551, 526 N.E.2d 916, 921, where this court noted that not all relevant evidence is automatically admissible and “[t]here must be a balancing between the probative weight of the evidence and any unfairly prejudicial effect it might have. Only when the probative weight overcomes the possible prejudice should the evidence be allowed.” Here, the court performed such a balancing test and concluded that without a qualified psychiatrist’s opinion regarding whether defendant actually had PTSD, the prejudicial effect of such evidence outweighed the probative value.

Defendant also refers to People v. Minnis (1983), 118 Ill. App. 3d 345, 455 N.E.2d 209, where this court reversed and remanded that defendant’s conviction of murder because the trial court excluded as irrelevant evidence of “battered woman syndrome” offered to explain the defendant’s conduct in dismembering her husband’s body after she killed him, and further refused to permit defense counsel to make an offer of proof thereon. This court concluded that evidence of the syndrome was relevant and admissible to rebut the State’s allegation that her conduct in dismembering the body was proof of her consciousness of guilt. This court examined the defendant’s experts’ reports on the syndrome and deemed that such evidence made a prima facie case of relevancy to the defense. This court stated that “[t]he defendant had a right to present evidence relevant to her explanation of her conduct, no matter how far-fetched it might appear to the average individual.” (Minnis, 118 Ill. App. 3d at 357, 455 N.E.2d at 218.) The instant case, however, is distinguishable from Minnis because there, that defendant offered evidence from a clinical psychologist and a psychiatrist as to the battered woman syndrome. Moreover, she did not refuse to cooperate with a court-ordered psychiatric evaluation.

Accordingly, we conclude that because defendant failed to cooperate with the court-ordered psychiatric examination, the court did not abuse its discretion by excluding defendant’s evidence of PTSD. Even if evidence of PTSD was relevant to the defense of intoxication, the prejudicial effect of such evidence, without a qualified diagnosis, outweighed the probative value.

Defendant also claims the court abused its discretion in sentencing by considering as a statutory aggravating factor that his conduct caused serious harm to the victims, when the causation of serious harm is implicit in the offenses of first degree murder and attempt (first degree murder). Section 5—5—3.2(a)(1) of the Unified Code of Corrections lists as an aggravating factor to be considered in imposing a more severe sentence the fact that- the “defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3.2(a)(1).) Here, defendant was sentenced to 25 years’ imprisonment for first degree murder, which offense had a possible range of sentencing of not less than 20 and not more than 60 years, and was sentenced to a concurrent term of 15 years’ imprisonment for attempt (first degree murder), which offense had a possible range of sentencing of not less than 6 years and not more than 30 years. Ill. Rev. Stat. 1991, ch. 38, pars. 8—4(c)(1), 1005—8—1(a)(1), (a)(3).

At the sentencing hearing the court noted the mitigating factors and then stated: “[i]n terms of factors in aggravation there is no question that your conduct caused the most serious harm that can be caused. The death of an individual who had a right to live[,] [a]nd the serious injury to another individual[.]” Consideration of a factor necessarily implicit in the offense cannot be used as an aggravating factor for sentencing. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Here, the causation of serious harm is certainly implicit in the offenses of first degree murder and attempt (first degree murder).

Initially, the State claims that defendant waived this contention of error by failing to object when the trial court made the alleged finding that causation of serious harm was an aggravating factor. We agree. This court has previously deemed defense counsel’s failure to object at sentencing to the court’s use of causation of serious harm as an aggravating factor when serious harm is implicit in the offense as a waiver of that issue for purposes of appeal. People v. Montague (1986), 149 Ill. App. 3d 332, 500 N.E.2d 592; People v. Killings (1986), 150 Ill. App. 3d 900, 501 N.E.2d 1363.

In any event, inasmuch as the trial court improperly considered the causation of serious harm as an aggravating factor, the court’s comments as a whole indicate that the court noted that factor in passing and placed upon it little weight in determining the length of sentencing. Consequently, remandment would not be required. (People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.) The record indicates that the court’s emphasis was deterrence and the need to alert substance abusers to correct their problems before they commit a very serious crime. The court also emphasized the need to protect society, and the impact, here, of the offenses on the families of victims. Accordingly, we conclude the court did not abuse its discretion in making a cursory comment on the causation of serious harm.

Finally, defendant claims the court erred in ordering that he pay restitution within 12 months of his release from the Department of Corrections. Defendant claims this portion of his sentence should be vacated without remanding for modification. The State concedes that the court’s order for restitution violated section 5—5—6(f) of the Code, which requires the court to “fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6(f).) The State, however, maintains that the proper remedy should be to remand to the circuit court to fix the method and time of payment according to section 5—5— 6(f) of the Code.

Defendant relies on People v. Fisher (1989), 186 Ill. App. 3d 255, 266, 542 N.E.2d 1127, 1134, where this court reversed the portion of the circuit court’s order that defendant pay restitution within two years after his release from prison. That defendant argued the court failed to take into consideration his ability to pay restitution as required by section 5—5—6(f) of the Code. This court reversed the order of restitution without remanding for modification, noting that the order for restitution did not comply with the time limit of section 5—5— 6(f) of the Code. The State maintains this court should follow the recent decision in People v. Speirs (1992), 231 Ill. App. 3d 807, 812-13, 596 N.E.2d 1257, 1261, where this court concluded that rather than reversing an improper restitution order without remanding for modification, the better practice is to vacate the improper order and remand for entry of a proper order.

Nevertheless, in the instant case defendant was sentenced to a lengthy term of imprisonment and claims he will not be able to pay restitution within five years because, as a prison inmate, he is indigent. There was no evidence at sentencing that defendant would be able to pay a restitution in the total amount of $3,848.43 while in prison. Accordingly, we reverse the circuit court’s restitution order without remanding for modification.

For the foregoing reasons, we affirm the conviction and sentence and reverse only the court’s order of restitution.

Affirmed in part; reversed in part.

McCULLOUGH and COOK, JJ., concur.