author: JUSTICE GREEN

text:
    SALVATORE MORICONI, Indiv. and as Special Adm’r of the Estate of Sherrie Moriconi, Plaintiffs-Appellants, v. SENTRY INSURANCE OF ILLINOIS, INC., Defendant-Appellee.
    Fourth District
    No. 4—89—0628
    Opinion filed February 1,1990.

      Maurice W. Kepner, of Kepner & Kepner, of Springfield, for appellants.
    Walter J. Simhauser, of Heckenkamp, Simhauser & LaBarre, RC., of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On July 7, 1988, plaintiff Salvatore Moriconi, proceeding individually and as special administrator of the estate of Sherrie Moriconi, brought suit in the circuit court of Sangamon County against Sentry Insurance of Illinois, Inc. (Sentry), and Richard Miller, special administrator of the estate of his stepdaughter Rebecca Mecasky. Plaintiff sought a declaratory judgment determining his rights, individually and as administrator, for recovery under an underinsured motorist (UIM) provision of an automobile insurance policy issued to him by Sentry. On July 14, 1989, the circuit court entered a summary judgment in favor of Sentry and found that no just reason existed to delay enforcement or appeal. Plaintiff has appealed. We affirm.

The complaint alleged (1) plaintiff, his decedent who was his wife, and Mecasky were riding in his automobile, insured by Sentry, when, on August 9, 1986, the vehicle collided with an automobile driven by Michael R. Kelly; (2) plaintiff’s decedent, Mecasky, and Paul Butler, a passenger in Kelly’s vehicle, were killed in the collision and plaintiff was injured; (3) Kelly’s vehicle was insured by a policy of insurance covering liability and having limits of $100,000 for each person and $300,000 for each accident; (4) at the time plaintiff obtained the policy of insurance covering the operation of his automobile, agents of Sentry failed to comply with the requirements of section 143a — 2 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2) concerning advising persons applying for automobile insurance of their option to purchase UIM coverage; and (5) plaintiff, Miller, and the administrator of the estate of Paul Butler had reached an agreement with Kelly’s liability carrier for money in an amount equalling Kelly’s policy limits paid by that insurer in the following sums: (a) to Butler’s special administrator, $30,000; (b) to Mecasky’s special administrator, $70,000; and (c) to plaintiff, $200,000 to be split equally between himself and the estate for which he was special administrator.

The parties do not dispute that pursuant to the precedent of Fuoss v. Auto Owners (Mutual) Insurance Co. (1986), 148 Ill. App. 3d 526, 499 N.E.2d 539, aff'd (1987), 118 Ill. 2d 430, 516 N.E.2d 268, if Sentry had failed to advise plaintiff of his option to purchase UIM coverage as required by section 143a — 2 of the Code, the Sentry policy covering plaintiff’s vehicle will be implied to provide UIM coverage in the same amount as the liability coverage. That coverage was in the limit of $300,000, regardless of the number of persons to which liability might exist. Summary judgment was granted Sentry on the basis that even if plaintiff could prove the failure of Sentry to advise of these options, plaintiff had no right of recovery against Sentry under the circumstances shown by the undisputed facts before the circuit court when entering summary judgment.

The dispute here centers upon the meaning, as applied to the undisputed facts, of the portion of section 143a — 2(3) of the Code, which states: Sentry points out that the implied limits of UIM coverage on the policy it issued to plaintiff were $300,000. Sentry maintains that because of the $100,000/$300,000 limits of the liability policy covering the Kelly car, “the sum of the limits of liability under all liability insurance policies” covering that car was also in the sum of $300,000. Accordingly, Sentry asserts the Kelly automobile, which was the only other vehicle causing damage to plaintiff or his decedent, was not an “underinsured motor vehicle” and the implied UIM provision of its policy covering the plaintiff’s automobile is not applicable. This was the rationale of the circuit court’s decision. We agree with that reasoning.

“For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death *** and for which the sum of the limits of liability under all bodily injury liability insurance policies *** is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).)

Plaintiff makes two principal arguments in opposition to the interpretation of Sentry and the circuit court. Plaintiff’s first argument is based upon the fact that because of the settlement alleged in the complaint, $30,000 of the $300,000 paid by Kelly’s insurer was paid to the estate of Paul Butler, who was a passenger in the Kelly vehicle. Thus, only $270,000 of the liability coverage of the Kelly policy was available to the estates of the decedents in plaintiff’s vehicle and to plaintiff, all of whom would be covered by the implied UIM provision of Sentry’s policy. Plaintiff would construe section 143a — 2(3) to make the Kelly vehicle underinsured to the extent of $30,000 under these circumstances. Second, plaintiff contends that the policy limits of $100,000 per person on the Kelly vehicle make the limits of that policy less than the implied limits of the Sentry policy, because in the Sentry policy, one or two persons can recover more than $100,000 as long as the total recovery does not exceed $300,000.

Plaintiff’s first contention is based upon further provisions of section 143a — 2(3) of the Code, which state:

“The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies *** maintained on the underinsured motor vehicle.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).)

Plaintiff asserts this provision makes section 143a — 2(3) at least ambiguous on the question of whether an alleged tort-feasor’s vehicle is underinsured when its use causes injury or death to persons in another vehicle, and the portion of its liability limits available to the persons covered by the UIM policy of the other vehicle are less than the UIM limits of the policy covering that other vehicle.

Assuming the aforementioned ambiguity, plaintiff then argues that (1) the Code should be construed to effectuate its intent (Ill. Rev. Stat. 1985, ch. 1, par. 1001); and (2) a purpose of section 143a— 2 of the Code is, in part, to assure that a motorist injured by an UIM gets as much protection as a motorist injured by an uninsured motorist, citing Kahn v. Aetna Casualty & Surety Co. (1989), 186 Ill. App. 3d 803, 542 N.E.2d 878, and Zurich v. Country Mutual Insurance Co. (1978), 65 Ill. App. 3d 608, 382 N.E.2d 131. The difficulty with this theory of plaintiff’s is that section 143a — 2(3) is not ambiguous. The provision of that section cited by Sentry concerns the question of whether the alleged tort-feasor’s vehicle is underinsured. That portion makes clear that question is determined by comparing the limits of the alleged tort-feasor’s liability and the UIM limits of the other vehicle. The provision of section 143a — 2(3), cited by plaintiff, concerns the limits upon the amounts the insurer providing UIM coverage is required to pay, if the alleged tort-feasor’s vehicle is under-insured.

In Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 452 N.E.2d 49, as here, portions of the limits of the liability policy of an alleged tort-feasor driver were exhausted settling with persons other than those covered by the UIM provision of a policy covering a vehicle involved in a collision with the alleged tort-feasor. The Price court noted that under the present section 143a — 2(3) of the Code, the fact that the remaining sum available under the alleged tort-feasor’s policy was less than the limits of the UIM provision involved did not make the tort-feasor’s vehicle an UIM vehicle.

To properly describe plaintiff’s other main contention, we must again refer to the portion of section 143a — 2(3) of the Code, which states that an UIM vehicle is one the use of which has caused bodily injury or death to persons in another vehicle when the “sum of the limits of liability under all bodily injury liability insurance policies *** applicable to the [first vehicle] is less than the limits” of UIM coverage of the second vehicle. (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).) Plaintiff maintains the phrase “sum of the limits” has reference only to a situation where more than one liability policy covers the vehicle driven by an alleged tortfeasor. Plaintiff contends those words have no reference to the situation where the vehicle insured by Sentry has UIM limits of $100,00 per person, but a total limit of $300,000. If the phrase “sum of the limits” is applicable to a situation where the UIM coverage involved arises from only one policy and refers to the maximum coverage arising from one occurrence, the sum of the limits of the Kelly liability policy is $300,000, which is the same as that of the implied limits of the Sentry UIM provision.

No case has been called to our attention which decides whether the phrase “sum of the limits” refers only to situations where the alleged tort-feasor has more than one liability policy. Logic indicates that it does not. The clear intent of section 143a — 2(3) is to deem a vehicle to be underinsured only when the total sums available to cover liability of the tort-feasor driver are less than the limits of the UIM policy. Any theory of comparing other aspects of the alleged tort-feasor’s liability policy or policies and that of the UIM provisions of the policy covering the injured parties would create substantial uncertainty.

Plaintiff notes that the definition of an underinsured motor vehicle, which would have been attached to plaintiff’s policy had it contained UIM coverage, differed from the statute. That definition states:

“An Underinsured Motor Vehicle is a Motor Vehicle with liability protection afforded by liability insurance policies or bodily injury liability bonds with limits the sum of which are less than the limits provided by this endorsement.”

Plaintiff maintains this language could bring about a different result. We need not decide whether a policy definition more favorable to an insured than the statutory definition in an insurance policy can control. We agree with Sentry that the foregoing definition varies materially from that of the statute.

We hold the circuit court properly granted summary judgment to Sentry. We affirm that judgment.

Affirmed.

LUND and SPITZ, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. SHEPARD, Defendant-Appellant.
    Fourth District
    No. 4—88—0820
    Opinion filed February 1,1990.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Eider man, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On July 26, 1988, a jury sitting in the circuit court of Macon County found defendant Robert Shepard guilty of committing three acts of deceptive practices with a prior conviction in violation of section 17 — l(B)(d) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d)). He was subsequently sentenced to three concurrent three-year terms of imprisonment. He now appeals, alleging: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied equal protection of the law; and (3) he was denied a fair trial due to the admission of evidence of other crimes. We disagree and affirm.

On November 8, 1987, defendant delivered a personal check to the Fairview Plaza Kroger Store drawn on the First National Bank of Decatur (National) in the amount of $50 to pay for merchandise. On November 11, he delivered another check to that store drawn on the Mutual Home and Savings Association (Mutual) in the amount of $50 in exchange for currency. Also, on November 11, he delivered a $50 check drawn on Mutual to the North Water Street Kroger store in exchange for cash. In each case the check was presented twice to its respective financial institution and there were insufficient funds to pay for it.

Defendant’s checking account records at Mutual for the periods ending October 22, November 22, and December 22 were introduced into evidence. These established that this account was active. Defendant began writing insufficient funds checks around November 2. By the end of that month he had a balance of of $2.23, with $84 of pending bad check charges. Seven checks were still outstanding, all presented for payment for which insufficient funds existed. For December, he ended with a balance of $9.13 and another pending $84 of charges. At least four new checks were bounced. It was explained by Mutual’s assistant manager that if defendant deposited a check which is subsequently dishonored by another institution it would still be reflected on the monthly statement. However, if a check was given them for collection it would not so appear. She remembers defendant showing her a check he had received from an accident, but she did not know if he had asked them to collect it.

Defendant’s checking account records at National for the periods ending October 23, November 23, and December 23 were also submitted into evidence. These show a closing balance on October 23 of $9.51 overdrawn. The balance on November 23 was $32.51 overdrawn, with five overdrawn checks outstanding. His December balance was $5.51, with another overdrawn check outstanding. National’s cashier explained that a check given them for collection only would not appear on the account statements.

On January 11, 1988, defendant was interviewed by police officer Michael Applegate. Defendant acknowledged he wrote the checks. He stated that he thought he had enough money in the accounts to cover the checks. He maintained he deposited an insurance check in the amount of $600 to $700 in one of them. However, he also stated he was robbing Peter to pay Paul. Finally, a certified copy of an earlier deceptive practice conviction in the Coles County circuit court was placed into evidence.

Defendant, 64 years of age, explained he had both checking accounts for approximately one year. He also has a Kroger check-cashing card and has been cashing checks at various Kroger stores for five or six years. He identified a large number of checks written between July 10 and November 10, which were drawn on both institutions and were cashed at a Kroger’s and successfully cleared.

He admitted writing and delivering the checks in question. He believed those checks would clear. He also denied any intent to defraud Kroger. He explained he had a hit-and-run car accident in September. The other driver agreed to pay through his insurance company. Defendant received two checks, which he gave to the banks for collection. Both were dishonored, and he never got his money from the insurance company. He took one check to the company in search of payment, and they simply took it and told him to get lost.

At the time of the accident, defendant had a personal note at National for purchase of a 1981 Buick. The note was for a period of 24 months, with the last scheduled payment being April 1989. On November 6, 1989, he paid $1,137 to pay the note entirely. This was supported by the loan paperwork. He maintained that after the insurance checks were dishonored he tried to refinance this note, which was denied.

On cross-examination, he was questioned extensively concerning the bank statements and the number of his checks which were not paid during that time. Defendant also stated that, irrespective of the insurance checks, he believed he had money in the accounts to cover the checks. On rebuttal he was impeached with three prior, separate forgery convictions. Defendant was found guilty on all charges. He now appeals.

Defendant’s initial assertion is that he was not proved guilty beyond a reasonable doubt. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The relevant question is whether, if after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Once a defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

To sustain its burden in this case, the State must prove beyond a reasonable doubt that: (1) defendant issued or delivered the check in question; (2) defendant thereby obtained cash or goods from Kroger; (3) defendant knew at the time his account was insufficient to pay for said check; and (4) defendant acted with the intent to defraud. (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d); People v. Cundiff (1973), 16 Ill. App. 3d 267, 305 N.E.2d 735.) Defendant maintains the State has failed to prove that he knew the checks would not be paid by the financial institutions and that he intended to defraud Kroger.

The last sentence of section 17 — l(B)(d) provides:

“Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered, or when such check or other order is presented for payment and dishonored on each of 2 occasions at least 7 days apart, is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud.” (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d).)

One court has held these are permissible inferences which may be drawn only when the proven facts meet the standard set forth in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151. (People v. Bormet (1986), 142 Ill. App. 3d 422, 427, 491 N.E.2d 1281, 1284.) One of the requirements of Housby is that there exists evidence to corroborate the inference. Housby, 84 Ill. 2d at 424-25, 420 N.E. 2d at 154-55.

In the present case, there are sufficient facts present to corroborate this inference and support the jury’s conclusion. First, these checks in question are not isolated bad checks but are part of a series of numerous bad checks passed during that time. Defendant made a statement to the police indicating he was robbing Peter to pay Paul, which could be viewed as establishing his knowledge of the lack of funds. Further, defendant’s explanation by way of his testimony is highly suspect. Defendant explained he was waiting for the proceeds of two insurance checks. At one time he indicated they were to be deposited, which is clearly false. Then he indicated they were given for collection. However, he was hazy about the time frame, indicating at one point these were given in October. He also could not remember the names of the insurance companies or what agency or person took his dishonored check and did not return it. He was even unclear as to total amounts of these checks. The jury could reasonably find defendant’s explanation false, which is also sufficient corroboration to support the finding of the inference. Housby, 84 Ill. 2d at 430-31, 420 N.E.2d at 158.

Defendant insists that his testimony concerning his lack of intent and his prepayment of his installment note is sufficient evidence of his lack of knowledge and lack of intent to defraud. However, the jury is not required to accept a defendant’s testimony and his was severely impeached by his prior convictions. Further, this prepayment is only one piece of evidence and is not by itself conclusive of the question. In fact, this evidence could be construed as cutting the other way. Defendant never fully explained where this sum of money came from. While his testimony is unclear and he generally insisted the insurance checks were not honored, there is a statement in which defendant indicated at least one check was cashed and he used these proceeds to pay the note. Thus, the jury could have reasonably concluded that, if the insurance checks did exist, they were honored and defendant did receive the money.

In either case, the evidence is sufficient to raise questions of fact concerning defendant’s intent to defraud and his knowledge that the checks would not clear. We cannot say that, after construing all the evidence in the light most favorable to the State, no rational trier of fact could find defendant guilty beyond a reasonable doubt.

Defendant next contends the court erred by allowing admission of the monthly statements from Mutual and National since they show numerous other checks were not paid. He also complains of cross-examination concerning that point. He maintains this, in essence, established that he could have been charged with numerous other deceptive practice charges. He notes that evidence of other crimes is generally inadmissible as being too prejudicial. (People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288, 290.) He believes the fact he had other possible pending charges for the same conduct prejudiced the jury and denied him a fair trial. Defendant’s argument is without merit.

Initially, we observe defendant invited the cross-examination concerning the other bad checks. Prior to defendant’s testimony, the State made a motion in limine to bar defendant from introducing into evidence and testifying about over 70 checks which he wrote and the institutions did cover. When the court denied the motion, it advised defendant this testimony would open the door to examination concerning a number of dishonored checks. Defendant acknowledged this and yet proceeded. It is axiomatic that an accused cannot complain of error acquiesced in or invited by him. People v. Riley (1964), 31 Ill. 2d 490, 496, 202 N.E.2d 531, 534; People v. Harris (1982), 104 Ill. App. 3d 833, 839, 433 N.E.2d 343, 347-48.

Further, we find no error exists. While generally evidence of other crimes is inadmissible if relevant to merely establish the defendant’s propensity to commit a crime, it is admissible if it is relevant for any other purpose. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823-24.) Some such valid purposes are to prove modus operandi, intent, identity, motive, or absence of mistake. People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492-93.

In the case at bar, the State was required to prove that at the time the checks were passed defendant knew they were not good and he acted with an intent to defraud and, in fact, it presented evidence on these points. Defendant denied any such knowledge or intent. The fact that during this time and subsequently defendant has issued a large number of bad checks and that his accounts have a low or negative balance is highly probative to his knowledge of the status of his accounts. It is similarly pertinent to the question whether the charged checks were dishonored due to a mistaken belief on his part or whether defendant intended to defraud the people to whom he issued these checks. Thus, it is clear this evidence is highly relevant, not only for impeachment purposes, but also to assist the trier of fact in establishing defendant’s state of mind at the time the checks were passed.

Defendant’s final argument is that he was denied equal protection of the law. He observes that the court admitted into evidence his prior conviction of deceptive practices as an element of the offenses necessary to increase them from a misdemeanor to a felony. He notes that the legislature has (earlier) amended other sections in which misdemeanors are enhanced by previous convictions to felonies, by providing that the prior conviction is not an element of the offense and is not to be disclosed to the jury. (See Ill. Rev. Stat. 1987, ch. 38, pars. 16— 1(e)(2), 16A — 10(2), 16-5(c), ll-15(b), ll-14(b), 11- 17(b), ll-18(b), 11 — 19(b).) He maintains the fact he is not treated similarly denies him equal protection.

The equal protection clause requires persons who are similarly situated be treated equally. (People v. Petro (1989), 179 Ill. App. 3d 1018, 1021, 535 N.E.2d 97, 99.) The clause comes into play only when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and penalizes one and not the other. (People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029, 1031.) Those contesting the statute’s validity have the burden of showing its invalidity. Petro, 179 Ill. App. 3d at 1021, 535 N.E.2d at 99.

Here we fail to see the prohibited dissimilar treatment which prejudices defendant. Defendant’s theory is that the fact his prior conviction is treated as an element of the offense and is presented to the trier of fact prejudices him because a jury is liable to convict him based on the prior conviction. He notes that in the other situations, the prior conviction is not made known to the trier of fact but is introduced at sentencing.

However, defendant’s focus is misplaced. While the procedures imposed in each case are different, there is no dissimilar treatment of a constitutional nature. In each case, a defendant with a prior conviction can have a misdemeanor for conduct comparable to the prior enhanced to a felony. Thus, similarly situated defendants are treated similarly.

Even if we were to consider the different procedures employed in proving the prior convictions, a different result would not be required. Here, the jury was strictly admonished by the court at the time it advised them of the prior conviction that this was to be considered solely for this one element and not to be considered for any propensity toward similar conduct by defendant or any other purpose. There was also a jury instruction indicating that the prior convictions were not to be considered as evidence of defendant’s guilt. This is sufficient to remove any possible improper taint from introduction of the prior conviction. Since the different procedures do not penalize this defendant over others charged under the other sections, there is no equal protection problem.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE PINCHAM

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE MILLER, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—2296
    Opinion filed October 27,1989.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and William Marback, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE PINCHAM

delivered the opinion of the court:

In counts I and II of the indictment, the defendant, Willie J. Miller, was charged with the offense of murder, in that he on August 10, 1985, without lawful justification (1) intentionally and knowingly shot and killed Albert Johnson, with a gun; and (2) shot and killed Albert Johnson with a gun knowing that such shooting with a gun created a strong probability of death or great bodily harm to Albert Johnson, in violation of sections 9 — 1(a)(1) and 9 — 1(a)(2), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(2)). Counts III and IV of the indictment similarly charged defendant Miller with the murder of Jimmy Leggett. Defendant Miller waived jury. Following his trial, the trial court found him guilty of the offenses of voluntary manslaughter of Albert Johnson and Jimmy Leggett and sentenced him to a 12 years’ imprisonment term on each of the two manslaughter convictions to run consecutively. Defendant Miller contends on this appeal that the trial court erred in imposing consecutive sentences because the two manslaughter offenses were committed as part of a single course of conduct during which there was no substantive change in the nature of the criminal objective, and also, because the victims’ deaths were intrinsic, integral ingredients of the manslaughter offenses, the victims’ deaths therefore could not also be relied on to enhance the penalty for the voluntary manslaughter offenses. Defendant Miller additionally contends on this appeal that the trial court further erred in relying on the impact testimony of one of the manslaughter victim’s brother at the sentencing hearing in determining the sentence to impose.

Although the aggregate two consecutive 12 years’ imprisonment sentences, 24 years, on the facts of this case revealed by the State’s witnesses may not be excessive but indeed may be considered somewhat lenient, the trial court nevertheless clearly lacked authority to impose the consecutive sentences in this case. Accordingly, we vacate the consecutive sentences. The facts and our reasons follow.

At trial, the State’s four witnesses, John Robert Dillard, manager and bartender at the Root Inn Lounge, Cynthia Leggett, sister of the decedent victim Jimmy Leggett, Lacy Brown, and Adolphus Robinson established the following events preceding and during the defendant Miller’s shooting of the victims, Jimmy Leggett and Albert Johnson.

John Robert Dillard, Lacy Brown, Cynthia Leggett and Jimmy Leggett were in the Root Inn, a tavern, in Chicago, on August 9, 1985, shortly before midnight. Defendant Miller entered the tavern and grabbed Jimmy Leggett. John Dillard came from behind the bar and put defendant Miller out of the tavern. Cynthia Leggett told her brother Jimmy Leggett that he should go home. A few minutes later, Jimmy Leggett left the tavern to go home, promptly followed by John Dillard, Lacy Brown and Cynthia Leggett.

Upon arriving outside the tavern, John Dillard, Lacy Brown and Cynthia Leggett saw Jimmy Leggett and Albert Johnson and defendant Miller engaged in an argument, during which no physical contact was made between them. Defendant Miller pulled a gun from his back and fired once at Albert Johnson, who fell instantly to the ground. Defendant Miller then fired at Jimmy Leggett, who thereafter turned and ran as defendant Miller ran behind him and fired another shot at him. Both Albert Johnson and Jimmy Leggett died from the gunshot wounds to their chests inflicted by defendant Miller.

Adolphus Robinson, another State witness, testified that while he was outside the Root Inn tavern, around midnight of August 6, 1985, he saw defendant Miller take a gun from the blouse of a woman who was in a parked car outside the tavern and place the gun in his pants. Adolphus Robinson immediately departed, but shortly thereafter he heard several shots fired.

The State’s evidence established that at the time of his death, Jimmy Leggett had a .14 alcohol level and heroin in his blood. Albert Johnson also had heroin and a .139 alcohol level in his blood at the time of his death.

Chicago police Detective Ptak, also a State witness, testified that he and his partner arrested defendant Miller about 1:20 p.m. on August 10, 1985, after he was found hiding in a bedroom closet of Rose Bank’s apartment. At the police station to which the officers took him, defendant Miller told Detective Ptak that he went into the Root Inn tavern to use the washroom, became involved in an argument with Jimmy Leggett, and was thrown out of the tavern by the manager, John Robert Dillard. Defendant Miller further stated to Detective Ptak that Jimmy Leggett, Albert Johnson and a third person whom he did not know followed him out of the tavern and that the three of them beat and kicked him. The defendant Miller pulled out his gun and fired once at Albert Johnson, then once at Jimmy Leggett, and then once at the third person. Detective Ptak testified that he saw no swelling, abrasion or laceration on defendant Miller’s body.

A few hours after the defendant Miller gave Detective Ptak his oral statement, he gave a written statement to Assistant State’s Attorney William Connelly, who also testified as a State witness. Defendant Miller’s written statement to Assistant State’s Attorney Connelly was substantially the same as his oral statement to Detective Ptak, but his written statement was more detailed about his beating. Assistant State’s Attorney Connelly also testified that he did not see any bruises or marks on defendant Miller.

Defendant Miller testified as a witness in his own behalf. His version of the incidents was appreciably different from those of the State’s witnesses. The defendant stated that he went into the tavern to use the washroom. Defendant Miller insisted that he did not have any contact with Albert Johnson or Jimmy Leggett while in the tavern. Nevertheless, defendant Miller testified that John Dillard, the manager, told defendant Miller to leave the tavern, and the defendant stated that he did so and that John Dillard, Albert Johnson and Jimmy Leggett followed him out. Albert Johnson, Jimmy Leggett and an unknown third man attacked, hit and kicked defendant Miller in his face, groin and back and knocked him to the ground. Defendant Miller stated that he felt one of the three men going for his wallet, and because he feared being robbed, he pulled a gun from his waistband and fired in Jimmy Leggett’s direction. As defendant Miller then struggled to his feet, he shot at Albert Johnson. Defendant Miller said that he ran in the same direction that Jimmy Leggett ran, but that he was not chasing Jimmy Leggett; he fired his gun because he thought he was being robbed and that his life was being threatened, and he knew both Albert Johnson and Jimmy Leggett carried weapons.

It was the function of the trial court to determine the facts from the conflicting testimony of the State’s witnesses and the defendant. The versions related by the State’s witnesses were corroborated and appear to be plausible, while the versions by the defendant appear to be inherently flawed.

First, contrary to the testimony of the State’s witnesses, defendant Miller testified that he entered the tavern to use the washroom, and although he stated he did nothing improper and had no contact with anyone in the tavern, John Dillard, the tavern manager, for no reason whatever, nevertheless told him to leave the tavern.

Second, again according to defendant Miller’s version but contrary to that of the State’s witnesses, Dillard, Albert Johnson and Jimmy Leggett followed the defendant out of the tavern. They did so, if the defendant Miller is to be believed, likewise for no reason whatever.

Third, defendant Miller testified that the three men attacked him, again, if defendant Miller is to be believed, for no reason whatever.

Fourth, defendant Miller’s version that he pulled his gun and fired only after he was attacked, beaten, kicked, knocked down, and because he feared he was being robbed is flawed. It would seem that an armed man viciously attacked and robbed by three assailants for no reason would promptly and without hesitation pull his gun to protect and defend himself, rather than wait until after he has been pummeled and beaten to the ground. It would also appear to be unusual that, while being beaten by three assailants, the defendant would initially resort to his gun only after he was beaten to the ground and because he feared being robbed.

Fifth, defendant Miller’s testimony that upon getting to his feet, he ran in the same direction that Jimmy Leggett ran, but that he was not chasing Leggett, but that he fired his gun at Leggett because he knew that Leggett carried a weapon and he, the defendant, feared for his life, seemingly is illogical and unreasonable.

As stated, however, it was within the province of the trial court to determine the facts from the State’s witnesses and the defendant’s contradictory testimony, and the trial court did so. Based upon the cold record, a court of review, without the benefit of hearing and observing the witnesses’ demeanor as they testified, could possibly find the facts to be different than the facts found by the trial court in the case at bar. In the factual-legal context of this case, however, this court is mandatorily bound by the trial court’s factual findings upon which it predicated its guilty manslaughter findings, as well as the guilty manslaughter findings themselves.

The trial court’s guilty manslaughter findings conclusively negated the requisite intent for the offense of murder and, thus, constitute an implied acquittal of the murder charges, and the defendant’s conviction of voluntary manslaughter had the effect of an acquittal of the grave charge of murder. (People v. Kendricks (1984), 121 Ill. App. 3d 442, 446, 449 N.E.2d 261, 263; People v. Fox (1983), 114 Ill. App. 3d 593, 595, 596, 459 N.E.2d 1137, 1140.) From the foregoing controverted testimony, the trial court in the case at bar concluded and found as follows:

“At the outset, I make it very clear, I do not believe the defendant. The defendant is a belligerent, jail house lawyer, tailors his testimony to what he perceives to be legal defenses. The defendant’s testimony, therefore, should be considered only where it can be independently corroborated.
The State’s evidence in this case, clearly indicates the defendant shot and killed both Leggett and Johnson, who were unarmed.
Most serious question for the finder of fact, is the question of whether there was, indeed, a scuffle, that is, the defendant testified, immediately preceding the shooting.
The evidence presented by the State indicates, I would note, that Leggett and Johnson, were intoxicated and under the influence of a morphine derivative.
Secondly, it indicates that Leggett and Johnson, were inside the tavern, but came out soon after the defendant was ejected, giving rise to a possible inference that they followed the defendant.
Thirdly, the court notes that all of the State’s witnesses, appeared to be predisposed toward the decedents and against the defendant.
And fourthly, that all of the State’s witnesses had been in a tavern, and there is at least a possibility that they were drinking or impaired.
* * *
For the reason I cited, earlier with regard to the State’s evidence, and based upon the State’s observations, of the type and character of the State’s witnesses, their interest, bias and prejudice, as well as the reasonableness of their testimony, in light of the Court’s own experiences in life, this Court finds that there was a scuffle between the defendant and the decedents, immediately prior to the incident.
Secondly, that the defendant intentionally killed Leggett and Johnson, but that at that time, he unreasonably believed that such actions were justified.
Accordingly, there is a finding of guilty of voluntary manslaughter of Leggett. Judgment is entered on the finding.
And there is a finding of guilty of voluntary manslaughter of Johnson. Judgment is entered on the finding.” (Emphasis added.)

The court set the sentencing for a later date.

We are unable to discern from the record before us “the type and character of the State’s witnesses” as stated by the trial court, and we are not benefited by the trial court’s more articulate or specific description of them.

Parenthetically, we note that the State’s witnesses did not testify that “there was a scuffle between the defendant and the decedents, immediately prior to the incident” as the trial court found. This finding by the trial court is expressly predicated on the testimony of the defendant, who also testified that the decedents and the unidentified third man attacked, beat, kicked and knocked him to the ground and attempted to rob him, which was exceedingly more than a mere “scuffle.” According to defendant Miller, he was outnumbered and was being violently beaten and robbed when he pulled his gun and fired at his assailants to defend himself against the two forcible felonies that were being committed upon him. Thus, predicated on the defendant’s testimonial version of the incident, it would appear that the defendant would have been legally justified and completely exonerated in so defending himself under the provision of section 7 — 1 of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1), which provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

The defendant’s version of the double homicide cannot be consistently reconciled with the State’s witnesses’ contrary versions, which, if believed beyond a reasonable doubt by the trial court, would clearly have established that the double homicides were manifestly cold blood, dispassionate, premeditated murders.

It is apparent that the trial court rejected both the State’s witnesses’ and the defendant’s versions and found that the defendant “unreasonably believed that such actions [of shooting the decedents] was justified.” The trial judge neglected to articulate the factual basis or concept upon which he concluded that the defendant, who, according to his version, without provocation was being attacked, beaten, kicked, knocked down and robbed by three assailants, “unreasonably believed” that his actions, in defending himself against such attack and robbery by shooting his assailants, were justified. The trial court, predicated upon its finding and conclusions and exclusively within its province and over which this court is powerless in this case, found that the homicides were voluntary manslaughter.

When the cause came on for sentencing, seven weeks after the trial court’s aforesaid factual findings and guilty findings of voluntary manslaughter, the trial court directed counsel:

“On the sole question of eligibility for consecutive sentencing, counsel may argue.”

Thereupon, the assistant State’s Attorney argued that under section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—4), the court was empowered to impose a consecutive imprisonment sentence on the two voluntary manslaughter guilty findings and that such a sentence would be appropriate in the case. Conversely, the defense attorney argued just as vociferously that consecutive sentences in the case could not be legally imposed under the aforesaid statutory provision and that, consecutive sentences on the two voluntary manslaughter guilty findings would be invalid, improper and inappropriate. Thereupon the trial court stated, found and concluded, which we again set forth in detail because of the necessary materiality to the determination we make of the issues presented on this appeal:

“[I] have considered the arguments of counsel as well as the cases submitted on the issue of consecutive sentencing.
In this case the court will note that the evidence indicated that the defendant first shot Sonny [Albert Johnson], and that he slumped over, and the defendant then shot Pee Wee [Jimmy LeggettJ. Pee Wee then ran some distance and the defendant shot Pee Wee again.
The State might make I believe an excellent argument that these were two separate and distinct acts by the defendant, all be it [sic] the court found that those acts which were acts falling under voluntary manslaughter as opposed to murder based upon the fact that defendant intentionally killed both Leggett and Johnson and at that time he unreasonably believed that such acts were justified:
The statute in question provides that the court shall not impose consecutive sentences for offenses which were committed as a part of a single course of conduct during which there was no substantial change in the nature of the criminal objective unless one of the offenses for which the defendant was convicted was a Class X or Class 1 felony, and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. The voluntary manslaughter is a Class 1 felony. There were severe bodily injuries. The court will find under any theory, under either theory I should say, that the
defendant is eligible to be sentenced consecutively.
* * *
Having considered all the statutory criteria, the court finds that the appropriate sentence in this case is twelve years in the Illinois Department of Corrections for the voluntary manslaughter of Albert Johnson, and I do so sentence you to twelve years in the Illinois Department of Corrections for the voluntary manslaughter of Albert Johnson.
I further find that the appropriate sentence for the voluntary manslaughter of Jimmy Leggett is twelve years in the Illinois Department of Corrections and I do so sentence you to a consecutive term of twelve years in the Illinois Department of Corrections for the voluntary manslaughter of Jim Leggett.” (Emphasis added.)

A determination is unnecessary whether the trial court at the sentencing hearing had justified belated misgivings, second thoughts, or ambivalent concerns regarding its guilty manslaughter findings, which prompted a desire to impose a more severe punishment upon the defendant. The defendant correctly argues that the imposition of the consecutive sentence was unlawful because, according to the trial court’s aforestated findings, the two manslaughters arose from a single course of conduct without a change in the nature of the criminal objective, and also, because death is an essential element of voluntary manslaughter, the manslaughter death cannot be again relied upon as the required severe bodily harm for the imposition of a consecutive sentence.

The supreme court held in People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, that the trial court’s authority to impose consecutive sentences is limited. Section 5 — 8—4(b) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(b)) provides that the trial court should not impose consecutive sentences unless the trial court is of the opinion that consecutive sentences are required to protect society, and the trial court must set forth in the record the basis for that opinion. Section 5 — 8— 4(a) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a)) provides:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a).

As previously noted, the trial court rejected the State’s witnesses’ versions of defendant Miller’s shooting of the two decedents. Instead, the trial court found that the defendant Miller shot the decedents to defend himself against their beating, kicking and robbery under the unreasonable belief that such shootings were justified. The trial court implicitly found that the defendant’s shootings of the decedents were simultaneous acts during a single course of conduct, based upon defendant Miller’s unreasonable belief that the. shootings were necessary to protect himself from the decedents’ attack and robbery.

Again, we parenthetically note that even according to the State’s witnesses’ versions, which the trial court rejected, the defendant first shot Albert Johnson and then instantaneously shot Jimmy Leggett, who ran as the defendant chased him and fired another shot at him. The defendant’s second shot at Jimmy Leggett while chasing him cannot be considered as a “substantial change in the nature of the criminal objective,” simply because the uncontradicted evidence established that it was not this second shot that hit or killed Leggett. The evidence established without dispute that Jimmy Leggett was killed, not by a bullet in his back, but rather by defendant Miller’s initial fatal shot to his chest. Thus, consistent with the State’s rendition, the defendant’s fatal shootings of Albert Johnson and Jimmy Leggett were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.

Likewise, and certainly according to the factual findings of the trial court, the defendant’s two fatal shootings of Johnson and Leggett were committed as part of the defendant’s single course of conduct during which there was no change, substantial or otherwise, in the nature of the defendant’s criminal objective. The trial court found that the defendant unreasonably believed that it was necessary for him to shoot the decedents, a single course of conduct, to protect himself from harm by them.

The circumstances in the instant case are strikingly similar to those in People v. Fieberg (1982), 108 Ill. App. 3d 665, 439 N.E.2d 543. The trial court in Fieberg imposed a consecutive sentence on the defendant’s aggravated battery and robbery convictions. This court held that the consecutive sentence was improper and pointed out that, although the aggravated battery conviction was based upon (1) the defendant’s macing of a police officer, and that the robbery conviction was based upon (2) the defendant’s subsequent taking of the officer’s gun, both acts were motivated by the same criminal objective of evading capture, and thus, the consecutive sentence was invalid. The Fieberg court modified the consecutive sentence to concurrent sentences.

Similarly, defendant Miller shot both decedents on the basis of the same motivation, i.e., to protect himself from the decedents’ attack. There was no change in his motivation between his simultaneous shootings.

This court has held that a consecutive sentence is improper even where, unlike here, the time between the acts is not so close and where there are differences in the acts committed by the defendant. In People v. Parker (1986), 141 Ill. App. 3d 643, 490 N.E.2d 1076, the victim was accosted by the defendant when he entered her mobile home, pointed a gun at her, and accused her and the man with whom she lived of stealing the defendant’s marijuana. The defendant then had the victim write a note to her live-in male friend. She was told that she was going to be held until the defendant’s marijuana was returned. When the victim refused to put on a mask, she was hit and threatened. On the basis of these acts, the defendant was convicted of home invasion, armed violence and aggravated kidnapping. The sentences imposed for the home invasion and the armed violence were consecutive. This court modified the consecutive sentence for home invasion and armed violence to concurrent sentences on the ground that the defendant’s acts occurred during a single course of conduct and there was no substantial change in the nature of the criminal objective. The court pointed out that the occurrences lasted no more than 10 minutes and in the same place. Although the defendant hit the victim and threatened her, this court held that these acts were committed with the same criminal objective of kidnapping her and that the consecutive sentence was therefore improper.

In People v. Davis (1986), 151 Ill. App. 3d 435, 502 N.E.2d 780, this court modified the defendant’s consecutive sentence for home invasion and aggravated criminal sexual assault to concurrent sentences. The defendant in Davis forcibly entered the victim’s house, raped the victim and then stole her property. This court held that a consecutive sentence was not authorized, since there was no evidence that when the defendant entered the house, he had only the intent to rob the victim and not also to sexually assault her. The court noted that the defendant may have entered with both the objectives of robbing and sexually assaulting the victim.

This same conclusion was reached in People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280, in which the court held that a consecutive sentence for burglary and arson was not authorized where a defendant burglarized a building and then burned it. The Morgan court concluded from the evidence that the defendant could have entered the building with the concurrent intent to commit theft and also burn the building. Likewise, in People v. Baker (1985), 133 Ill. App. 3d 620, 479 N.E.2d 372, a consecutive sentence on guilty findings of indecent liberties, attempted deviate sexual assault and home invasion was modified to concurrent sentences because there was no showing of a substantial change in the defendant’s criminal objective from the commission of the home invasion to the sexual attacks.

Because the evidence failed to establish that there was a substantial change in the nature of the defendant’s criminal objective during the defendant’s course of conduct in the commission of the two manslaughter offenses, the imposition of the consecutive sentence was improper.

The trial court imposed the consecutive sentence on the additional ground that defendant Miller’s voluntary manslaughter convictions were Class 1 felonies, with severe bodily injuries, namely the deaths of Albert Johnson and Jimmy Leggett. The manslaughter deaths could not be considered the required severe bodily injury for the imposition of a consecutive sentence, because the severe bodily injury of death was also the essential ingredient of the voluntary manslaughter offenses. It is elementary that the same factor once relied on as an essential ingredient of an offense cannot thereafter also be relied on to enhance the penalty for the commission of that same offense.

In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, the supreme court reversed an armed violence conviction which was predicated on aggravated battery where the aggravated battery was a felony only because the defendant was armed. The court held that the fact that the defendant was armed could not be used twice: once to raise the offense of battery, a misdemeanor, to an aggravated battery, a felony, and then again used in the armed violence offense, based upon the aggravated battery. This same double enhancement prohibítion of the use of a weapon was applied in reversing the armed robbery/armed violence convictions in People v. DelPercio (1985), 105 Ill. 2d 372, 475 N.E.2d 528.

Relying on Harón, the supreme court held that it was improper to impose an extended-term sentence on defendant’s theft conviction on the basis of a prior theft conviction where that same prior theft conviction had also been used to elevate a misdemeanor theft to a felony theft offense for which defendant was convicted and sentenced to the extended term. (People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558.) This court in People v. Carter (1984), 129 Ill. App. 3d 1076, 1082, 473 N.E.2d 434, 439, stated that a court may impose extended and consecutive sentences only where there is an independent basis for each enhanced penalty. Thus, this court recognized that the same basis could not be used to impose both an extended-term sentence and also a consecutive sentence.

It is recognized that the prohibition against double penalty enhancement is violated where a trial court considers as aggravation for a greater penalty a factor which is implicit in the offense for which the defendant is being sentenced. In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the supreme court held it was error to consider as aggravation on a theft or burglary sentence the fact that the defendant received compensation from the offense because the taking of proceeds was inherent in these offenses. Thus, this compensation factor had already been considered by the legislature in establishing the sentencing range. This same reasoning has been applied when a sentencing court has considered as aggravation the fact that the defendant threatened harm during an armed robbery because the threat of harm is inherent in an armed robbery. People v. Rhodes (1986), 141 Ill. App. 3d 362, 490 N.E.2d 169; People v. Reid (1983), 94 Ill. 2d 88, 445 N.E.2d 329.

The trial court’s consideration of the victim’s death as aggravation in sentencing the defendant was held to be error in People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, where the defendant was sentenced for the voluntary manslaughter of the victim, and in People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884, where the defendant was likewise improperly sentenced for involuntary manslaughter. The Saldivar court explained that it was improper to impose a more severe sentence on the defendant because he caused serious bodily harm, i.e., death, because death is implicit in the offense of voluntary manslaughter and had already been considered by the legislature in establishing the sentencing range for the voluntary manslaughter offense. In imposing a more severe sentence, the Saldivar court held that the trial court may consider “the degree or gravity of the defendant’s conduct, i.e., the force employed and the physical manner in which the victim’s death was brought about” (Saldivar, 113 Ill. 2d at 271, 497 N.E.2d at 1144); however, the Saldivar court held that the victim’s death could not be considered as aggravation in sentencing.

In applying the principles enunciated in the cases discussed above, it is evident that the trial court’s reliance upon the victims’ deaths in the instant case to impose a consecutive sentence was error. Obviously, defendant Miller inflicted severe bodily injury because he caused Leggett’s and Johnson’s deaths, the ultimate of severe bodily injury. However, their deaths were intrinsically factored into his voluntary manslaughter convictions. To again use these deaths to impose a consecutive sentence was improper.

The record before us contains no basis on which the trial court had authority to impose a consecutive sentence. Therefore, defendant Miller’s 12 years’ imprisonment consecutive sentence must be vacated.

The defendant Miller additionally urges that the trial court erred in relying on the impact testimony of a decedent victim’s brother at the sentencing hearing in determining the sentence to impose. In part, because of our ultimate disposition of this issue, we reject the State’s contention that the defendant waived this issue on appeal and we decide the issue.

The purpose of the Illinois Bill of Rights for Victims and Witnesses of Violent Crime Act (the Act) is

“to ensure the fair and compassionate treatment of victims and witnesses of violent crime and to increase the effectiveness of the criminal justice system by affording certain basic rights and considerations to the victims and witnesses of violent crime who are essential to prosecution.” (Ill. Rev. Stat. 1987, ch. 38, par. 1402.)

The Act gives the victim of a violent crime the right at sentencing to present a “victim impact statement.” (Ill. Rev. Stat. 1987, ch. 38, par. 1406.) A “victim” under the Act includes the actual victim and “the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed” (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)(3)), and a violent crime victim’s family member may present a statement of the impact that the offense has had and will have on the victim’s family. The victim’s impact statement is to be considered by the trial court in determining the sentence to impose. Sections 5 — 4—1(a)(3) and (a)(6) and section 6 (Ill. Rev. Stat., 1986 Supp., ch. 38, pars. 1005 — 4—1(a)(3), (a)(6), 1406), respectively, provide in pertinent part as follows:

“[A]fter a determination of guilt, a hearing shall be held to impose the sentence. *** At the hearing the court shall:
* * *
(3) consider evidence and information offered by the parties in aggravation and mitigation;
* * *
(6) afford the victim of a violent crime *** committed by the defendant the opportunity to make a statement concerning the impact on the victim and to offer evidence in aggravation or mitigation ***.” (Emphasis added.)

And:

“In any case where a defendant has been convicted of a violent crime *** and a victim of the violent crime is present in the courtroom at the time of the sentencing or the disposition hearing, the victim upon his or her request shall have the right to address the court regarding the impact which the defendant’s criminal conduct *** has had upon the victim. If the victim chooses to exercise this right, the impact statement must have been prepared in writing in conjunction with the Office of the State’s Attorney prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing. The court shall consider any statements made by the victim, along with all other appropriate factors in determining the sentence of the defendant ***.” (Emphasis added.)

The United States Supreme Court held invalid, under the eighth amendment to the United States Constitution, a Maryland statute which allowed the introduction of victim impact evidence as an aggravating factor in a capital sentencing hearing in Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529. The Supreme Court noted that such evidence is often emotionally charged and concluded that its use was inconsistent with the reasoned decision making that is required in sentencing in capital cases. The Supreme Court concluded in Booth that the introduction of a victim impact statement in a capital sentencing hearing “creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner” (482 U.S. at 503, 96 L. Ed. 2d at 448, 107 S. Ct. at 2533), and held:

“Allowing the jury to rely on a [victim impact statement] *** could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. This evidence thus could divert the jury’s attention away from the defendant’s background and record, and the circumstances of the crime.” Booth, 482 U.S. at 505, 96 L. Ed. 2d at 449-50, 107 S. Ct. at 2534.

In People v. Sims (1988), 121 Ill. 2d 259, 520 N.E.2d 308, the Illinois Supreme Court applied Booth and held that “admitting [victim impact] evidence at a capital sentencing hearing clearly violates the defendant’s eighth amendment rights,” affirmed the conviction but vacated the death sentence and remanded the cause to the trial court for a proper sentencing hearing.

Citing and relying on Booth, the Illinois Supreme Court held that sympathy for the defendant’s parents is also an inappropriate factor to be considered during the sentencing proceedings in a capital case in People v. Erickson (1987), 117 Ill. 2d 271, 303-04, 513 N.E.2d 367, 381.

Applying the reasoning in Booth and Erickson, this court held that testimony by the victim’s mother about her inability to cope with her son’s death in ordering a headstone for his grave was an improper factor considered in aggravation on a sentencing hearing in a noncapital case in People v. Felella (1987), 163 Ill. App. 3d 1156. The Illinois Supreme Court granted leave to appeal in Felella pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315).

People v. Felella (1989), 131 Ill. 2d 525, was decided by the Illinois Supreme Court on September 20, 1989, an analytical review of which is necessary for our resolution of the victim impact testimony sentencing issue before us. After pointing out that the issue in Felella was “whether the mother’s testimony about the impact of her son’s death should have been introduced at the sentencing phase of defendant’s trial,” the supreme court then noted that, “In People v. Turner (1989), 128 Ill. 2d 540, 578, [539 N.E.2d 1196, 1213,] the court held that allowing victim impact evidence in a noncapital sentencing hearing did not violate that defendant’s constitutional rights.” (Emphasis added.) (131 Ill. 2d at 535.) We therefore momentarily turn to Turner.

In Turner, in which two justices took no part in the consideration or decision of the case and a third justice concurred in part and dissented in part, a jury found the defendant guilty of a capital murder offense and numerous noncapital offenses. After a death penalty hearing before the jury, the defendant was sentenced to death for the capital murder and to varying imprisonment terms for the noncapital offenses. The supreme court vacated the death sentence and remanded for a new death-penalty sentencing hearing because of the improper allowance into evidence during the death-penalty sentencing hearing, via the testimony of a police officer, of the confession of a codefendant which implicated defendant Turner.

Turner additionally contended that he was also entitled to a new sentencing hearing for the noncapital offenses on the ground that it was improper at the sentencing hearing to allow the jury to hear the victim’s parents’ impact statement “and that any such statement violates his eighth amendment and due process rights,” citing Booth. (Turner, 128 Ill. 2d at 578.) The Illinois Supreme Court discussed the United States Supreme Court’s statement in Booth that “facts about the victim and family also may be relevant in a noncapital criminal trial,” and held in Turner.

“[Allowing this statement at the noncapital sentencing hearing did not violate the defendant’s constitutional rights. In light of the strong evidence of guilt, we find that the error in the admission of this evidence was not reversible.” (Emphasis added.) People v. Turner (1989), 128 Ill. 2d 540, 578, 539 N.E.2d 1196, 1213.

Thus, in Turner the supreme court expressly recognized and found “error in admission of this evidence [of the victim’s impact statement]” at the defendant’s noncapital offenses sentencing hearing. The supreme court concluded, however, that the error was not reversible error “in light of the strong evidence of guilt.”

We now return to Felella, in which the Illinois Supreme Court does not address and is completely silent on its foregoing expression in Turner of “error in admission of this [victim impact] evidence.” The supreme court in Felella did, however, reject the defendant’s constitutional violation claims thusly:

“Here the Act merely affects a mode of procedure. It simply allows a victim or witness to testify at the sentencing phase of the trial, after the defendant has been convicted. *** [T]he Act does not violate the ex post facto provisions of either the United States [citation] or Illinois [citation] Constitution ***.
* * *
Generally, the use of the word, ‘shall’ is mandatory, but this is not an inflexible rule. [Citation.] Here, the statute is not mandatory in nature. It does nothing to indicate what weight should be given to the ‘victim impact’ evidence, nor does it indicate what sentence should be imposed. Consequently, the contested language does not impermissibly infringe upon the powers of the court. Thus, we read the language of section 6 of the Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406) as being directory. *** Accordingly, section 6 of the Act does not violate the separation of powers clauses of the Illinois Constitution.” (Emphasis added.) Felella, 131 Ill. 2d at 537, 539-40.

From the foregoing language of Felella, it is clear that the supreme court did not therein hold that the Act confers absolute unbridled carte blanche authority on the trial court to consider and rely on any and all matters and things contained in a victim impact statement, regardless of and however patently immaterial, irrelevant, improper, prejudicial or inflammatory such matters may be, in determining what sentence to impose. It is clear from Felella that the admission of and the trial court’s reliance on such evidence under the Act are governed by constitutional due process, fundamental fairness, confrontation, cross-examination, relevancy and materiality principles, and that the validity of the admission of or the trial court’s reliance on victim impact testimony in determining a sentence must be evaluated on a case-by-case basis, governed by the facts of each case. Obviously the Act does not relieve the trial court of its solemn responsibility of properly exercising its appropriate discretion in imposing a correct sentence. The language of Felella, that “the statute is not mandatory in nature,” but “directory” demands this conclusion, and this conclusion is impregnably fortified by the following final language of Felella:

“Defendant next maintains that ‘the trial court considered the testimony of the mother which amounted to considering in aggravation a specific element implicit in the offense of voluntary manslaughter.’ The State responds that the issue has been waived because the defendant failed to object at trial.
An objection at trial and a written post-trial motion raising the issue are required to preserve that issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Here, the defendant did not object to this evidence at trial, nor did he include it in a written post-trial motion. Consequently, defendant has waived the issue.” Felella, 131 Ill. 2d at 540.

It is axiomatic that if the supreme court had intended to hold in Felella that no restrictions were imposed on the admission of or on the trial court’s consideration of victim impact evidence in determining the sentence, the defendant would have no standing to object thereto or to waive same.

We must therefore determine the validity of the admission of the victim impact testimony and the trial court’s reliance thereon in imposing sentence in the instant case.

Felella decided that the statutory sentencing and victim impact statement language, “shall *** consider evidence and information offered by the parties in aggravation and mitigation *** afford the victim the opportunity to make a statement concerning the impact on the victim ***” and “the court shall consider any statement made by the victim,” is directory and does not unconstitutionally mandate the trial court to consider improper and inappropriate evidence in determining the sentence, contrary to the defendant’s contention urged before us. See Ill. Rev. Stat., 1986 Supp., ch. 38, pars. 1005 — 4—1(a)(3), (a)(6), 1406.

The defendant Miller argues that the distinction between a sentencing court’s reliance on a victim impact statement at a sentencing hearing in a capital case and a noncapital case is fallacious. He insists that there is absolutely no substantive difference in the logic or reasoning between a judge or jury improperly relying on improper, irrelevant, inflammatory, prejudicial evidence to enhance a penalty to death in a capital case and a judge or jury’s similar improper reliance on identical, improper, irrelevant, inflammatory, prejudicial evidence to enhance an imprisonment penalty. In both instances, the defendant contends, both enhanced sentences are predicated on irrelevant, improper, inflammatory and prejudicial matters and concerns. Felella resolved these issues adversely to the defendant’s contentions.

We decline the defendant’s request to distinguish between planned, premeditated, deliberate offenses, such as murder, robbery, burglary, sex offenses, etc., in which, the defendant argues, the offender should and could have anticipated the consequences of his calculated conduct on the victim and the victim’s family and should therefore be responsible for such consequences, and the nonpremeditated offense of voluntary manslaughter, of which the defendant is guilty simply because his spontaneous nondeliberate belief of the necessity to kill to protect and defend himself was unreasonable. Thus, the defendant argues, the voluntary manslaughter defendant should not be held accountable for the impact of the victim’s death on the victim’s family. The defendant argues that the criminality in voluntary manslaughter is the defendant’s instantaneous, unreasonable misconception and belief that he must use deadly force to protect himself and that the defendant should therefore not be penalized beyond the commission of that error.

We note that in People v. Alejos (1983), 97 Ill. 2d 502, 509, 455 N.E.2d 48, the supreme court significantly stated:

“Yet no one who commits voluntary manslaughter intends in advance to take a life or employ deadly force; the only ‘intent’ of this sort that enters into the crime is the decision, arrived at without deliberation and in most cases instantaneously, to use force capable of killing. Before that decision is arrived at, the person who is guilty of voluntary manslaughter typically has no criminal intent whatever. Many such people, including the defendant in this case, make the decision to arm themselves long before the onset of the passion or misconception which transforms their intentions from peaceful to homicidal; those that arm themselves later do so after the passion or the misconception take hold of them, after which deterrence is no longer possible.”

This court, however, in People v. Scott (1989), 180 Ill. App. 3d 418, 535 N.E.2d 1113, completely ignored the supreme court’s aforementioned Alejos voluntary manslaughter distinction. In Scott, the defendant was convicted of voluntary manslaughter after a bench trial and sentenced to a seven-year imprisonment term. On appeal, the defendant relied on Booth for the proposition that it was improper for the sentencing court to consider a victim impact report. In rejecting the . defendant’s argument, the Scott court stated that, unlike Booth, the defendant was not eligible for the death penalty and concluded that “unlike the unique situation in Booth which created the risk that the jury would impose the death penalty in an arbitrary and capricious manner [citation], there is no basis to conclude here that the trial court was unduly influenced by the evidence of victim impact in sentencing defendant.” Scott, 180 Ill. App. 3d at 424-25.

The defendant, in reliance on the Supreme Court’s language in Booth, finally argues that the trial court’s reliance on the victim impact statement in the case at bar resulted in the imposition of a “sentence because of factors about which the defendant was unaware, and that were irrelevant to [his] decision to kill,” and improperly “diverged the trial court’s] attention away from the defendant’s background and record, and the circumstances of the crime.” Booth, 482 U.S. at 505, 96 L. Ed. 2d at 449-50, 107 S. Ct. at 2534.

We conclude that the admission of the victim impact testimony at the sentencing hearing in the case at bar was not erroneous, first, because the victim impact testimony was truly innocuous. Ethelbert Johnson, brother of the deceased victim, Albert Johnson, simply testified, as a family victim impact witness, that he loved his brother. The complete transcript of his victim impact testimony is hereafter set forth as an appendix. Second, there is absolutely no evidence, or even the slightest suggestion or inference, that the trial judge in any way or to any degree relied on the testimony of Ethelbert Johnson in determining and imposing the 12 years’ imprisonment sentence for each manslaughter conviction. The maximum penalty for each manslaughter offense was 20 years’ imprisonment, yet the trial court imposed an imprisonment sentence of only 12 years for each of these double homicides. Thus, the victim impact testimony was clearly admissible and equally harmless. People v. Cihlar (1982), 106 Ill. App. 3d 824, 436 N.E.2d 1041.

We perceive no justifiable basis for remanding the cause for resentencing. Thus, we affirm the defendant’s judgments of conviction of manslaughter, and we vacate that portion of the judgments requiring that the two 12 years’ imprisonment sentences be served consecutively and order that said imprisonment sentences be served concurrently. (People v. Johnson (1982), 104 Ill. App. 3d 572, 432 N.E.2d 1232.) Judgments affirmed; consecutive sentences vacated.

Judgments affirmed; consecutive sentences vacated.

MURRAY, P.J., and LORENZ, J., concur.

APPENDIX

VICTIM IMPACT TESTIMONY DIRECT EXAMINATION BY ASSISTANT STATE’S ATTORNEY

“Mr. Miller: Q. Sir, what’s your name?

A. Ethelbert Johnson.

Q. Spell your first name.

A. E-T-H-E-L-B-E-R-T

Q. How old are you, sir?

A. Forty-six.

Q. Are you working now?

A. No, I am not. I am on disability. I have a coma.

Q. I ask if you had a brother by the name of Albert Johnson.

A. Yes, I did.

Q. How old was Albert at the time of his death?

A. Forty-eight.

Q. Were you present when Albert was killed?

A. Yes, I was.

Q. And what, if any, effect did that have on you?

A. A great deal.

Q. Can you tell His Honor Judge Getty what effect that had on you?

A. Well, my brother, he was, he is two years older than me. I loved him very dearly. We had our disagreements, but we always enjoyed ourselves when we was together. We drinking, have fun. But knowing how far to go. We did know how far to go. He had a job and he was working for my cousin doing construction work.

Q. How old was he, Albert, at the time of his death?

A. Forty-eight.

Q. You indicated he was working?

A. Yes, he was.

Q. Where was he working?

A. On 45th and, right off, between Shields and Polk Street.

Q. How long had he been working there?

A. He had been working there about two or three years.

Q. Was he working steadily?

A. Yeah.

Q. Did he have any children?

A. No, he didn’t.

Q. Was he married?

A. Not to my knowing.

Q. To the best of your knowledge, did your brother have any criminal record?

A. No, he didn’t. He been to jail but once for something. It wasn’t nothin’ to write a big book about.

Q. What, if any, impact did your brother’s death have on you and the members of your family?

A. A great deal. Because we all loved him. He never did do no wrong. Just work and mind his own business and drink and went to work. You understand? When he got off work on the weekend, he drinking. He was just enjoying himself, minding his own business. That is the type of fellow he was.

Q. Were you with your brother on the night of his death?

A. I wasn’t in the tavern, but I was outside the tavern.

* * *

The man had put him outside the tavern, him and Leggett. I stopped Willie and Leggett from fighting.

* * *

I was in the hospital. I had got hit by a car, the reason why I didn’t show, couldn’t show. Broke my pelvic bone. I was in the hospital April the 21st. I just got out May the 14th. That’s why.”


author: PRESIDING JUSTICE HEIPLE

text:
    HOME INSURANCE COMPANY et al., Plaintiffs, v. MARCIA HORTEGA, Indiv. and as Guardian and Next Friend of Lonna Hortega et al., et al., Defendants (Marcia Hortega, as Guardian of Lonna Hortega et al., Counter-plaintiff-Appellant; Home Insurance Company et al., Counterdefendants-Appellees).
    Third District
    No. 3—89—0200
    Opinion filed February 8,1990.
    Melvin H. Hoffman, of Hoffman, Mueller & Creedon, of Ottawa, for appellant.
    Ira B. Goldstein, of Ira B. Goldstein, Ltd., of Joliet, for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Following the death of Joseph Hortega, the plaintiff Aetna Life Insurance Company and the plaintiff Home Insurance Company filed an interpleader action (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 409) against Mary Sue Hortega, the decedent’s widow, and Marcia Hortega, the decedent’s ex-wife and guardian of his children. The action sought to resolve competing claims to the proceeds of two insurance policies the decedent held with the plaintiffs. The trial court awarded the proceeds from the Aetna policy to the guardian and the proceeds from the Home policy to the widow. The guardian appeals.

The record shows that the decedent and the guardian were divorced on May 24, 1985. The divorce decree stated that “[t]he respondent shall keep as beneficiaries on his life insurance with Northern Illinois Gas Company, Marcia L. Hortega, Lonna Hortega and Josiah Hortega.” On June 24, 1986, the decree was modified to state that “the respondent is granted permission to take his ex-wife’s name off the *** Northern Illinois Gas Company’s insurance policy provided to respondent through work and membership, so long as Josiah Hortega and Lonna Hortega’s names are left on the polic[y] as the primary beneficiaries until they attain the age of 21 years.”

At the hearing on the plaintiffs’ action, Ron Hepner testified that he was a personnel director for the Northern Illinois Gas Company. When the decedent transferred into his department in the late summer or early fall of 1985, Hepner spoke with him about the company’s benefits. He told the decedent that as a benefit of employment the company provided him with a term life insurance policy administered by Aetna Life Insurance Company. Hepner also told him that the company provided an accidental death and dismemberment policy, but did not tell him the name of the company that administered it. Hepner noted at trial, however, that this was the Home insurance policy.

Hepner also stated that the benefits became effective on April 10, 1985, when the decedent’s probationary period ended. On that date, the decedent signed a beneficiary card naming the guardian as his primary beneficiary and his daughter Lonna as his secondary beneficiary. The card applied to both the Aetna plan and the Home plan, and at their meeting Hepner informed the decedent of this fact.

Hepner testified that on November 22, 1985, the decedent filled out a new beneficiary card naming the widow as the primary beneficiary and his daughter Lonna as the secondary beneficiary. Hepner said that although the new beneficiary card mentioned only the Aetna policy, there was no separate beneficiary card for the Home policy. Therefore, under company rules the card would apply to both plans. If the decedent wanted to name a different beneficiary for the Home policy, however, he could do so by submitting a request in writing.

Hepner stated that he gave the decedent a copy of the employee handbook. The handbook explained that the Home policy would pay benefits only in the event of accidental death, dismemberment, or total disability. It also stated that the Home policy beneficiary would be the same as the Aetna policy beneficiary, unless the employee indicated otherwise in writing.

John Brossard testified that he was an underwriting manager for the Home Insurance Company. Under his company’s contract with Northern Illinois Gas Company, the beneficiary of the Home policy was the same as the beneficiary under the Aetna policy, unless the policyholder requested in writing that a different beneficiary be named. According to his records, at the time of the decedent’s death the widow was the beneficiary of the Home policy.

In its order, the trial court noted that there was no dispute that the guardian should receive the Aetna policy proceeds. Consequently, he awarded her the $49,000 in benefits. With regard to the Home policy, the court found that the divorce decree and the modification referred only to the Aetna policy. Since the guardian therefore had no equitable right to the proceeds, he awarded the $57,000 in benefits to the widow.

The guardian argues that the trial court erred in awarding the Home policy proceeds to the widow. She contends that the Aetna and Home policies were part of an integrated life insurance plan. Consequently, since the divorce decree and modification required the decedent to retain his children as beneficiaries of his life insurance policy, the guardian argues that she was entitled to the Home policy proceeds. In support of her argument, she notes that the second beneficiary card referred only to the Aetna policy.

The widow responds that the Home policy was not a life insurance policy because it concerned only accidental death, dismemberment, or total disability. Consequently, she asserts that the trial court properly found that the divorce decree did not apply to it.

As a general rule, an insured may change the beneficiary of his life insurance policy if that right is reserved to him. (Brunnenmeyer v. Massachusetts Mutual Life Insurance Co. (1978), 66 Ill. App. 3d 315, 384 N.E.2d 446.) However, where a divorce decree requires an insured to maintain life insurance for the benefit of a particular beneficiary, that beneficiary has an enforceable equitable right to the proceeds of the insurance policy against any other named beneficiary except one with a superior equitable right. (In re Schwass (1984), 126 Ill. App. 3d 512, 467 N.E.2d 957.) In interpreting the provisions of a divorce decree, the court must give effect to the intent of the court that entered the decree, as well as the intentions of the parties. (In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 438 N.E.2d 957.) The best indication of the parties’ intentions is the plain language of the instrument. See Arkin, 108 Ill. App. 3d at 108, 438 N.E.2d at 961-62.

The divorce decree referred only to the decedent’s life insurance policy with his employer. Since the Home policy paid benefits only in the event of accidental death, dismemberment, or total disability, we agree with the trial court’s conclusion that it was not covered by the divorce decree. Moreover, although the second beneficiary card referred only to the Aetna plan, the decedent had been informed that the beneficiary card applied to both policies. The employee handbook also referred to that fact. Accordingly, we find that the trial court properly awarded the proceeds of the Home policy to the widow.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER and WOMBACHER, JJ., concur.


text:
      THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD KUNCE, Defendant-Appellee.
    Third District
    No. 3—89—0167
    Opinion filed January 30, 1990.

      Raymond Kimbell III, State’s Attorney, of Galesburg (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Richard Kunce, was charged with failing to notify the coroner of a death subject to investigation. (Ill. Rev. Stat. 1987, ch. 31, par. 10.6.) The trial court subsequently granted his motion to dismiss the charge, finding that it was barred by the applicable statute of limitations. The State appeals.

The record shows that on May 12, 1979, Carole Stevens’ husband died. Carole thereafter kept her husband’s body in a bedroom, apparently believing that despite numerous signs of death he was merely in a coma. In May of 1980, the defendant first visited Carole’s house and at that time saw her husband’s body. Between then and September of 1986, he visited on a number of occasions, often seeing the body. In September of 1986, the defendant moved into Carole’s house as a guest. The evidence was uncontradicted, however, that at no time did he exercise any control or custody over the body. In fact, he never even made any suggestions relating to it. On January 29, 1988, the police removed the body from the house.

The trial court found that the 18-month statute of limitations had expired prior to the filing of the charge against the defendant. The State argues on appeal that the failure to report a death is a continuing offense for which the statute of limitations did not begin running until the State discovered the body.

We note that the issue before this court is the correctness of the trial court's ruling, not of its reasoning. (People v. Tobe (1971), 49 Ill. 2d 538, 276 N.E.2d 294.) With that in mind, we find that we need not reach the question of whether the statute of limitations ran, because it is clear that the defendant was not within the class of persons subject to prosecution for failing to notify the coroner of a death subject to investigation.

The statute under which the defendant was charged provides:

“Every law enforcement official, funeral director, ambulance attendant, hospital director or administrator or person having custody of the body of a deceased person, where the death is one subject to investigation under Section 10 of this Act, and any physician in attendance upon such a decedent at the time of his death, shall notify the coroner promptly. Any such person failing to so notify the coroner promptly shall be guilty of a Class A misdemeanor, unless such person has reasonable cause to believe that the coroner had already been so notified.” Ill. Rev. Stat. 1987, ch. 31, par. 10.6.

The unrebutted evidence showed that the defendant was not a law enforcement official, funeral director, ambulance attendant, hospital director or administrator, or physician attending the deceased. Further, all of the evidence showed that he did not have custody of the body. Under these circumstances, we find that the defendant was not legally obligated to report the death and therefore the trial court correctly dismissed the charge against him.

The judgment of the circuit court of Knox County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.