author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HORTON, Defendant-Appellant.
    Third District
    No. 3—91—0311
    Opinion filed August 19, 1992.
    Dan W. Evers, of State Appellate Defender’s Office, of Mount Vernon, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendant, James Horton, was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—l(a)(2)) and sentenced to 28 years in prison.

On appeal, defendant contends: (1) the Illinois first degree murder statute is unconstitutional; (2) his conviction for first degree murder should be reduced to second degree murder; and (3) the prison sentence was excessive. We disagree and affirm the conviction and sentence.

During the early morning hours of January 6, 1990, the defendant and Dorothy Dothard, his live-in girlfriend, were hosting a small party in the defendant’s apartment. The guests included the victim, Kenneth Jones, and three other adults. They were all drinking, listening to music, and dancing. Dothard’s two children were asleep in the upstairs bedrooms. The trial court, sitting without a jury, heard varying accounts of the events which led up to Jones’ murder.

Larry Sullivan testified that he joined the party about 1 a.m. Everyone, including himself, was “boozed up a little bit.” Some time after Sullivan arrived, the defendant accused him of coming to the party as a pretext to see Dothard. The two men argued, and the defendant demanded that Sullivan leave the apartment. Sullivan stated that the defendant pushed Sullivan’s head back with his hand. Sullivan reacted by punching the defendant in the face four or five times. Robert Burnside and Kenneth Jones broke up the fight by pulling Sullivan away from the defendant. Sullivan, Burnside, Jones, and Ernestine Watkins then left the apartment.

When they were just outside the apartment complex, Sullivan heard Dothard yell from the front door, “Come back, come back. He is trying to kill me.” The group then returned to the defendant’s apartment.

As Sullivan reentered the apartment, he saw the defendant squatting or sitting in the kitchen with his back to the front door. Sullivan told the defendant that he shouldn’t beat on Dothard just because of the argument he had with Sullivan. As Sullivan approached, the defendant turned and then cut Sullivan on the arm and leg with a knife. Sullivan later received 15 stitches in his arm.

After Sullivan was cut, he and Burnside ran out the front door of the apartment. As Sullivan was running away from the building, he saw the defendant chasing Dothard down the sidewalk. Dothard fell, and the defendant got on top of her. She said, “Don’t kill me.”

Ernestine Watkins testified that during the first altercation, Sullivan called the defendant a “woman beater” and said “I’m a man. Now, I want you to fight a man.” The defendant begged Sullivan to leave him alone and to leave the apartment. Sullivan then hit the defendant repeatedly with his fists, and broke a quart beer bottle over the defendant’s head. Watkins stated that Sullivan was bigger and clearly had the advantage in the fight. Sullivan is 6 feet 2xk inches tall, and weighed 220 to 230 pounds at the time of the incident. Watkins corroborated Sullivan’s testimony that Jones and Burnside pulled Sullivan from defendant. Watkins told Sullivan to leave, and everyone but the defendant and Dothard left the apartment.

As the group was walking in the street, Watkins heard Dothard yell that the defendant was beating her, and for all of them to come back and help her. Watkins then returned to the apartment. She testified that despite Dothard’s plea that the defendant was beating her, she saw the defendant was away from Dothard and in the kitchen. Watkins saw the defendant was bleeding and that he was bent over from the first fight with Sullivan. As Sullivan approached, the defendant rose with a knife in his hand and started cutting Sullivan. Watkins said that everyone but the defendant, Dothard, and Jones ran from the building.

Watkins later returned to the apartment to look for Jones. She found him walking down the stairs from the second-floor bedrooms, holding his chest. Jones said, “He had a knife. He cut me.” Later, Jones was found dead in the apartment at the bottom of the stairs.

While Watkins was trying to get help for Jones, she saw the defendant chase Dothard across the field, saying, “You’re going to get some of it, too.”

Watkins quoted Burnside as asking the defendant, while he was still in the apartment, “[W]hy did you want to hurt him? He was trying to help you. Why don’t you get Larry [Sullivan]?” Later, after the defendant was found outside the apartment, Watkins also asked the defendant why he killed Jones. He replied, “[C]an’t you see what he did to me? Why are you asking me? Can’t you see?”

A statement given to police by eight-year-old Nicole Dothard was admitted into evidence by stipulation. Nicole said that she was with her brother in his bedroom when she saw the defendant stab Jones.

Officer Jeffery Kice of the Peoria police department found Jones at the foot of the stairway leading to the second floor of the apartment with a knife wound in his chest. The defendant was found lying at the end of the apartment building.

Officer Craig Ganda recovered a knife from the kitchen sink, and collected blood samples and stains. Kevin Zeeb of the State Police forensic science laboratory testified that blood which was found on the knife, at the top of the stairs, and on a bed cover was consistent with Kenneth Jones’ blood. Zeeb’s analysis excluded the defendant and Sullivan as being the sources of the blood that was tested.

Dr. Phillip Immesoete performed an autopsy on Jones. He noted three stab wounds: one in the left chest, another in the upper left leg, and a third in the left lateral thigh. Dr. Immesoete testified that the wounds to Jones’ leg were consistent with Jones being stabbed from behind.

Dr. Mortimer Beck performed a psychiatric examination of the defendant. Dr. Beck found that the defendant was mildly to moderately mentally retarded. He estimated that the defendant’s IQ was 50. Dr. Beck stated, in his opinion, that the ability of a person with below average intelligence to evaluate a stressful situation would be “quite poor.” When given a hypothetical question involving the facts of the instant case, Dr. Beck stated that such an individual would be less likely than a person of average intelligence to determine who his attacker was.

The trial court found the defendant guilty of first degree murder. The judge rejected the defendant’s contention that he acted in self-defense. The judge found the defendant had no reason to believe that Sullivan was a threat to him after the defendant cut him and Sullivan ran from the apartment. Further, the judge found that the victim, Kenneth Jones, had no weapon, and had not been observed as presenting any threat to the defendant. We agree with the trial judge’s findings. The trial judge then sentenced the defendant to 28 years in prison.

On appeal, the defendant first contends that the Illinois first degree murder statute (Ill. Rev. Stat. 1989, ch. 38, par. 9—1 et seq.) is unconstitutional. Defendant claims that the statute violated his right to due process by requiring him to prove, by a preponderance of the evidence, the existence of mitigating factors in order to be convicted of second degree murder rather than first degree murder. The defendant argues that he should not be required to prove an affirmative defense or mitigating factor that is inconsistent with, or would negate, an element of the offense charged. We disagree.

The defendant recognizes that the other four districts of our appellate court have considered and consistently rejected these constitutional challenges to this statute. We choose to follow these well-reasoned decisions. (See, e.g., People v. Newbern (4th Dist. 1991), 219 Ill. App. 3d 333, 579 N.E.2d 583, appeal denied (1992), 143 Ill. 2d 645, 587 N.E.2d 1022; People v. Cook (5th Dist. 1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242, appeal denied (1991), 142 Ill. 2d 657, 584 N.E.2d 133; People v. Willis (1st Dist. 1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215, appeal denied (1991), 142 Ill. 2d 664, 584 N.E.2d 139; People v. Hrobowski (2d Dist. 1991), 216 Ill. App. 3d 711, 575 N.E.2d 1306, appeal denied (1991), 142 Ill. 2d 659, 584 N.E.2d 134.) Accordingly, we conclude that the first degree murder statute under which the defendant was convicted is constitutional.

Defendant next contends that his conviction of first degree murder should be reduced to second degree murder. Defendant argues that he proved by a preponderance of the evidence that the mitigating factors of provocation and an unreasonable belief were present when he killed Jones. The defendant argues the evidence showed that when he tried to kill Sullivan by cutting him, he was “acting under a sudden and intense passion resulting from serious provocation” and that he “negligently or accidentally” killed Jones. (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(l).) Alternatively, the defendant argues that he unreasonably believed that he had the right to use force in self-defense. Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(2).

The relevant question on review, when faced with a challenge to the sufficiency of the evidence, is whether, after reviewing 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. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

Serious provocation is statutorily defined as “conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(b).) “The sufficiency of the provocation to cause sudden and intense passion is a matter to be determined by the trier of fact.” (People v. Pruitt (1987), 154 Ill. App. 3d 22, 32, 506 N.E.2d 696, 702.) The defendant argues that the “severe beating” administered by Sullivan created in him an “intense passion.”

However, we find from the evidence that the defendant’s passion, which was generated by the acts of Sullivan, was ultimately directed toward Jones, who was an absolutely innocent bystander. We also note that Sullivan had already fled the premises after the second altercation with the defendant. With Sullivan no longer presenting a threat to the defendant, we conclude that a rational trier of fact could find beyond a reasonable doubt that the defendant was no longer acting trader a sudden and intense passion when he turned his attack upon Jones.

The defendant also argues that his limited mental capacity restricted his ability, as determined by Dr. Beck, to accurately “sort out” his attacker. The defendant, however, was not in imminent danger of death or great bodily harm when he attacked Jones because Sullivan had already left the premises. In addition, we have the statement of Nicole Dothard that the defendant stabbed Jones in the upstairs bedroom. Also, we have the evidence of the knife wounds on the back of Jones’ legs. This cumulative evidence strongly suggests that the defendant chased Jones up the stairs and stabbed him in the bedroom. The evidence clearly shows that the defendant was the aggressor.

Therefore, we conclude that the trial court could reasonably find that defendant was no longer acting in self-defense, and that he did not believe, even unreasonably, that he was attacking Sullivan rather than Jones. Further, we find that no evidence was presented that Jones was ever a threat to the defendant or that Jones was armed in any way.

Finally, the defendant contends that the trial court’s sentence in excess of the minimum term of 20 years was an abuse of discretion. Defendant notes the absence of factors in aggravation, and further argues that the trial court failed to consider several significant factors in mitigation. We disagree.

A sentence determination lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883-84.

The trial judge noted at the sentencing hearing that he had considered the presentence investigation report, the evidence offered in aggravation and mitigation, as well as the sentencing recommendations made by defense counsel and the State. We note that the 28-year prison sentence imposed by the trial court falls within the lower sentencing range of 20 to 60 years for a conviction of first degree murder. Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—l(a)(l).

Therefore, we conclude, based upon our review of the record, which includes the arguments of defendant’s counsel and the statements of the trial judge expressed at the sentencing hearing, that the trial court did not abuse its discretion in imposing the defendant’s 28-year prison sentence.

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

Affirmed.

HAASE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STACY A. CHAPIN, Defendant-Appellant.
    Third District
    No. 3—91—0861
    Opinion filed August 13, 1992.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Mark Bernabei, State’s Attorney, of Princeton (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, Stacy A. Chapin, of theft by deception (Ill. Rev. Stat. 1991, ch. 38, par. 16—l(a)(2)(A)). The trial court subsequently sentenced him to a seven-year extended term of imprisonment. The defendant appeals.

The record shows that 83-year-old Margaret Stuepfert was the victim of a home repair scam. At trial, Stuepfert testified that on the morning of June 17, 1991, she was backing out of her driveway when two men drove up in a pickup truck. From photographs introduced into evidence, Stuepfert identified the defendant as the passenger and Charles Herrin as the driver. Herrin exited and asked her about doing a blacktop job. Stuepfert told him that she did not want to spend any money. After he “pressured” her a little more, she told him they could do a small area in front of her garage where water would stand after a rain. She then left to do errands. When she returned about an hour later, she saw several men with equipment working on her driveway.

Stuepfert told them not to do any more work as they had done more than she wanted. Herrin told her that they had to use the entire load of blacktop. Stuepfert again felt pressured and went inside. When they finished, the defendant and Herrin spoke to her. Herrin told her she owed them $7,000. After she told him he was crazy, Her-rin lowered the price to $6,000. He then filled out an agreement which Stuepfert signed. The defendant also inserted his name as payee on the check Stuepfert signed. After they left, Stuepfert received a call from a teller at her bank. She gave permission for the check to be cashed.

Four days later, on June 21, 1991, the defendant and Herrin returned to Stuepfert’s home. They asked her whether she had called the police. Stuepfert replied that she had not. Herrin told Stuepfert that her bill was in error and she should have been charged $4,600. He asked her to write a check for that amount and said that he would send her a certified check for the $6,000 she had paid. He filled out a second contract which Stuepfert signed. She then wrote a check for $4,600, again with the defendant as payee. She also authorized the bank teller to cash the check.

When Stuepfert did not receive the refund check, she sent a letter to an address the defendant had given her. One of the men called in response to her letter of complaint. He told her that they were busy but would be back in the area to apply sealant to her driveway. During the telephone call he again asked Stuepfert whether she had called the police. Stuepfert told him she had not. They never returned, and Stuepfert never recovered her money.

Police officer Michael Miroux, the officer who investigated this case, testified that Stuepfert identified a photograph of the defendant as the passenger in the pickup truck and a photograph of Charles Herrin as the driver and the one who did the talking. Miroux also stated that Herrin was presently under arrest in DeSoto, Mississippi, and fighting extradition to Illinois.

Miroux further testified that he interviewed the defendant on July 12, 1991, at the Rock County jail in Janesville, Wisconsin. After waiving his rights, the defendant told Miroux that he owned an asphalt company which employed three or four people. He admitted that he and a man named Joe Sills had gone to Stuepfert’s home. Additionally, the defendant acknowledged that Joe Sills was also known as Charles Herrin. The remainder of the story the defendant told Miroux largely corroborated Stuepfert’s testimony.

The defendant testified on his own behalf. He denied telling Mi-roux that Joe Sills and Charles Herrin were the same person. He also denied telling Miroux that he owned an asphalt company. He testified instead that he was employed by an asphalt company from Indiana. According to the defendant, on June 17, 1991, he and Joe Sills, a salesman, went to Stuepfert’s home. Charles Herrin, who had been with them earlier, was not there because he had gone to Chicago for materials.

The defendant further stated that he was not present when Sills spoke with Stuepfert. Sills told the defendant that Stuepfert had hired them to fix her driveway. The defendant’s job was to take care of the men on the crew. After the job was finished, Sills told Stuep-fert she owed $7,200. When she complained that the price was high, Sills mentioned a senior citizen’s discount and quoted her a price of $6,000. Stuepfert filled out a check for that amount. Sills told Stuep-fert that they would be back to put sealer on the driveway. At Sills’ direction, the defendant later inserted his name as payee and cashed the check.

According to the defendant, when he presented the check at the bank, the teller called Stuepfert. The defendant spoke with Stuepfert and told her they would be back to seal the driveway after they finished the rest of their work. The defendant also claimed that he gave all of the money to Sills.

The defendant said that he was present four days later when Sills obtained the check for $4,600. Sills subsequently gave the defendant the check, which he again cashed. Sills directed the defendant to write his name, address, and telephone number on the contract in case Stuepfert needed to contact them. The defendant also again gave Sills all the money.

The defendant further testified that he received Stuepfert’s letter of complaint on July 1, 1991. He called and told her that they would return in a few weeks after finishing other jobs. However, he could not testify to any of the other jobs by name or address. When asked what jobs he had to tend to after June 21st before they could finish Stuepfert’s driveway, the defendant cited jobs in Holland, Michigan, on June 28, and in Kalamazoo, Michigan, on July 1. He then stated that he spoke on the telephone with Stuepfert on July 1, and the Kalamazoo job was just “towards” July 1.

When asked what other jobs he had to do subsequent to June 21, 1991, the defendant responded that he went to Niles with a salesman to collect payment for some asphalt. When the prosecutor asked the defendant what happened there, defense counsel objected on the basis that the questioning was outside the scope of direct examination. The prosecutor countered that everything the defendant did after June 21 was relevant because the defendant had testified that because of other business he could not complete Stuepfert’s job. The trial court overruled the objection. The defendant then stated that he had been arrested for extortion in Niles based on an allegation that he had threatened to rip up Zora Kuhl’s driveway. The defendant also admitted to being arrested when he tried to cash a check for $1,600. The charge was later reduced to a misdemeanor, and on July 2, 1991, the defendant pled guilty to the offense of being an unlicensed contractor and paid a $100 fine.

Finally, the defendant claimed that the last time he saw Sills was on June 21, 1991. Sills left the motel where they were staying as the defendant slept.

David McDonald, the manager of an asphalt paving company, testified to the poor quality of the work done on Stuepfert’s driveway. He estimated that it would cost about $700 to remove the asphalt, and about $2,000 to do the job right. McDonald further stated that it was not possible to do the job properly in two or three hours with two or three workers. He also testified that $10,600 was a vast overcharge for the work performed for Stuepfert.

Ultimately, the jury acquitted the defendant of theft by deception of $6,000, and found him guilty of theft by deception of $4,600. Following the sentencing hearing, the trial court sentenced him to a seven-year extended term of imprisonment.

On appeal, the defendant first argues that the trial court erred in allowing evidence of his arrest for the felony offense of extortion.

Evidence showing that the defendant committed another crime is inadmissible when its purpose is to show the defendant’s propensity to commit crime. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) However, any error in the admission of other crimes evidence may be harmless if overwhelming evidence of the defendant’s guilt is introduced. People v. Gutierrez (1987), 156 Ill. App. 3d 555, 509 N.E.2d 787.

Here, we agree with the defendant’s assertion that, even if the evidence were relevant to establish where the defendant was after June 21, 1991, and whether he was working, there was no need to bring out the specific details of the arrest. However, we find that admission of the complained-of evidence was harmless because of the overwhelming evidence of the defendant’s guilt.

Stuepfert testified that the men did more work than she had agreed to. The defendant admitted that he was present during all of the “negotiations” with Stuepfert. He filled his name in as payee on Stuepfert’s checks, and thereafter immediately cashed them. The amount Stuepfert paid far exceeded the value of the work. Stuepfert also testified that the two men asked her on two occasions whether she had called the police. Furthermore, the defendant was impeached by Miroux’s testimony that the defendant had admitted that Joe Sills and Charles Herrin were the same man. The remainder of the story the defendant told Miroux largely corroborated Stuepfert’s testimony. Given the overwhelming evidence of the defendant’s guilt in the instant case, we find that admission of the complained-of evidence did not constitute reversible error.

The defendant next argues that the trial court improperly sentenced him to a seven-year extended term for his Class 3 felony theft conviction. In support of his argument, the defendant notes that he was convicted of theft by deception of $4,600 from Margaret Stuepfert (Ill. Rev. Stat. 1991, ch. 38, par. 16—l(a)(2)(A)). In pertinent part, the sentencing provision for theft provides:

“(4) *** theft of property exceeding $300 and not exceeding $10,000 in value, is a Class 3 felony.
* * *
(7) Theft by deception, as described by paragraph (2) of subsection (a) of this Section, in which the offender obtained money or property valued at $5,000 or more from a victim 60 years of age or older is a Class 2 felony.” Ill. Rev. Stat. 1991, ch. 38, pars. 16—l(b)(4), (b)(7).

A Class 3 felony carries a sentencing range of two to five years. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—l(a)(6).) However, since the victim in this case was over 60, the trial court determined that the defendant was eligible for an extended term of 5 to 10 years, and sentenced him to a seven-year extended term. Ill. Rev. Stat. 1991, ch. 38, pars. 1005—5—3.2(b)(4)(ii), 1005-8-2(a)(5).

Here, the defendant points to the anomalous result that would have occurred if he had instead obtained control by deception of $5,000 or more from the same victim. In that case, he would have only been subject to a term of imprisonment of three to seven years if he had been charged under section 16—l(b)(7). (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—l(a)(5).) He would not have been eligible for an extended term because the statute uses the victim’s age to elevate thefts of money or property of $5,000 to $10,000 to Class 2 felonies. Since the victim’s age has been used once to enhance the penalty, it could not be used a second time to impose an extended-term sentence.

The defendant concludes that since an extended term based upon the victim’s age cannot be imposed for the Class 2 felony, an extended term based upon the victim’s age cannot be imposed for the Class 3 felony of which the defendant was convicted. Otherwise, the result would be that theft by deception of $301 from a victim 60 or older could be subject to a maximum term of imprisonment of 10 years if charged as a Class 3 felony, whereas theft by deception of $10,000 from the same victim would be subject to a maximum prison term of seven years if charged as a Class 2 felony. We agree with the defendant’s reasoning.

Initially, we note that the State argues that the defendant has waived this issue. We find that he has not waived it because a defendant may challenge a void sentencing order at any time. People v. Jones (1988), 176 Ill. App. 3d 460, 531 N.E.2d 88.

We further note that the age of the victim cannot be considered as a factor to impose an extended term sentence where the penalty for the underlying offense has already been enhanced based upon the age of the victim. (People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429.) The policy underlying Illinois’ constitutional assurances of proportionate penalties and due process (Ill. Const. 1970, art. I, §§2, 11) would be violated if the penalty prescribed for an offense were not as great or greater than the penalty prescribed for a less serious offense. People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.

In the instant case, since the age factor is already used to enhance thefts between $5,000 and $10,000 from Class 3 to Class 2 felonies, that same age factor cannot be used to impose an extended term for either the Class 2 or the Class 3 offense. To hold otherwise could result in greater penalties being imposed for less serious offenses. Since we find that the defendant received an unauthorized extended-term sentence of seven years, under our appellate powers we reduce his sentence to a nonextended term of five years. 134 Ill. 2d R. 615(b)(4).

The defendant also contends that the trial court erred in ordering him to pay $10,600 in restitution. He notes that $6,000 of the total represented the amount alleged to have been taken in the offense of which he was acquitted. He argues that since he was not convicted of the offense, he should not have been ordered to pay restitution on the charge.

The State counters that the amount of restitution was proper since a trial court may consider all the losses sustained by the victim which were proximately caused by the defendant’s conduct. However, the State’s argument ignores the possibility that the defendant’s acquittal of the charge involving the $6,000 could mean that the jury determined that Stuepfert willingly paid that amount for work the defendant performed.

A trial court is not empowered to order restitution of sums extraneous to the charges before it. (People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267.) The instant defendant was convicted only of theft by deception of $4,600 from Stuepfert. We therefore hold that he may only be ordered to make restitution in that amount.

Lastly, the defendant contends that the order of restitution should be vacated because the trial court ordered the payment to be made beyond the five-year statutory period and failed to determine whether payment should be made in a lump sum or in installments. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6(f).) We note that after imposing the seven-year prison term, the trial court ordered the defendant to pay the full amount of restitution within the term of his mandatory supervised release. The court added the caveat that the amount would be reduced by the amount a co-conspirator, if convicted, would be required to pay.

The relevant portion of the restitution statute reads as follows:

“(f) Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall 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).

Initially, we note that while the court did not define a payment schedule as called for in the above-cited statute, the order called for payment to be made within a definite time following the defendant’s release from prison. Given the fact that it would be impossible to determine what the defendant would be earning, or how often he would be paid at that future time, the court’s order was reasonable. See People v. Whitfield (1986), 146 Ill. App. 3d 322, 496 N.E.2d 743.

Furthermore, we do not read the above-cited statute as requiring restitution to be made within five years of the date of the restitution order. Instead, we interpret it to mean that payment must be made within a five-year period. See People v. Lambert (1990), 195 Ill. App. 3d 314, 552 N.E.2d 300.

Thus, pursuant to our appellate powers, we shall modify the trial court’s restitution order. (134 Ill. 2d R. 615(b)(4).) We order the defendant to make restitution in the reduced amount of $4,600 within five years of the date he is released from prison. That amount shall be reduced by any amount a convicted co-conspirator is ordered to pay.

For all the foregoing reasons, the judgment of the circuit court of Bureau County is affirmed as modified.

Affirmed as modified.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE NICKELS

text:
    BEVERLY McCRAY, Plaintiff-Appellant, v. MERIT INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—91—1239
    Opinion filed August 13, 1992.
    Robert M. Buege, of May & Buege, Ltd., of Waukegan, for appellant.
    Thomas P. Stepanich, Ltd., of Conzelman, Snarski & Stepanich, of Waukegan, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Beverly McCray, sued for a declaration of her right to arbitration under an automobile insurance policy issued by defendant, Merit Insurance Company. On cross-motions for summary judgment, the trial court dismissed the complaint on the ground that plaintiff had filed her suit beyond the policy’s two-year limitation period. Plaintiff appealed.

Plaintiff argues that, as a matter of law, she is entitled to arbitration because (1) her suit was timely under the terms of the policy; (2) defendant is estopped to invoke the policy’s two-year limitation; and (3) under section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755.1) the limitation period was tolled by plaintiff’s timely filing of her proof of loss.

Defendant has moved to strike certain attachments to plaintiff’s brief. Defendant argues that such documents are not part of the record on appeal and should not be considered by this court. We grant defendant’s motion and therefore disregard any evidence or exhibits not properly included in the record on appeal.

On September 5, 1990, plaintiff filed a complaint alleging that at all relevant times plaintiff was an insured under a policy that defendant issued to plaintiff’s mother. On February 20, 1988, plaintiff was injured when her car collided in Waukegan with a car owned by Jesus Espinosa. The driver of Espinosa’s car fled the scene and was never apprehended or identified.

On June 27, 1988, plaintiff filed her proof of loss under the uninsured motorist coverage of the policy, to which defendant assigned a claim number. On July 1, 1988, defendant informed plaintiff that the policy required plaintiff to sue, in a timely manner, any and all parties allegedly legally responsible for damages. Therefore, on August 25, 1989, plaintiff brought a suit for negligence against Espinosa and “all other unknown parties.” According to an unsworn trial brief in the case at bar, plaintiff was unable after due effort to obtain service on Espinosa. She therefore voluntarily dismissed the negligence suit with the right to refile the action prior to January 17, 1992. Nothing before the trial court or in the record before us indicated whether the negligence suit had been refiled.

By letter of July 26, 1990, plaintiff demanded that defendant either settle under the terms of the uninsured motorist coverage or submit to arbitration. On August 14, 1990, defendant responded denying coverage and refusing to enter into arbitration. Defendant relied on policy language that “no suit, action or arbitration proceedings for the recovery of any claim under this coverage shall be sustainable unless commenced within (2) years after the occurrence of the loss.”

Defendant refused to reconsider its refusal to settle or submit to arbitration, and plaintiff filed this suit. She requested that the court (1) hold that defendant’s actions estopped it to invoke the limitations period or to refuse either settlement or arbitration; (2) find that plaintiff was entitled to uninsured motorist coverage under the policy; or (3) order defendant to engage in arbitration under the uninsured motorist coverage provision of the policy.

Defendant filed its answer, again denying that it was obligated to settle or submit to arbitration. Plaintiff then moved for summary judgment alleging that she timely complied with all of defendant’s demands for the protection of its subrogation rights. Plaintiff argued that the policy’s two-year limitations period did not commence with the accident itself, but only after her right to recover in her negligence suit had been determined. Therefore, plaintiff argued, she was entitled to an order compelling arbitration.

Defendant also moved for summary judgment, arguing that the limitations period expired two years from the accident, or February 20, 1990. Therefore, plaintiff’s untimely request for arbitration or settlement barred her suit.

The trial court denied plaintiff’s motion for summary judgment, granted defendant’s motion for summary judgment, and dismissed the complaint. Plaintiff appealed.

Summary judgment is a drastic remedy that a court may grant only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) A trial court has no discretion in ruling on a motion for summary judgment and should grant this relief only when the right of the moving party is clear and free from doubt. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271-72.

We hold first that the trial court erred in holding that plaintiff’s suit was barred by the two-year limitations period in the policy. Apparently the court construed this provision to require plaintiff to bring suit within two years of the accident. This construction is erroneous as a matter of law.

The rules of contract construction apply to insurance policies, and courts interpret these policies as a matter of law. (Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 453.) An unambiguous clause in an insurance policy is to be given its plain and ordinary meaning (Shelton v. Country Mutual Insurance Co. (1987), 161 Ill. App. 3d 652, 655), and the limitations period at issue here is valid (Heneghan, 195 Ill. App. 3d at 453). However, the limitations period does not require plaintiff to sue on the policy within two years of the accident, but rather within two years of the “occurrence of the loss.” This distinction is decisive.

An insured cannot be said to have suffered a “loss” until it is determined that the defendant in the personal injury action cannot compensate the insured for the damages incurred. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1022; Trust Co. v. Iroquois Auto Insurance Underwriters, Inc. (1936), 285 Ill. App. 317, 324.) Thus, language in a policy of insurance describing the limitations period in terms of the occurrence of a “loss” does not start to run until the tort liability of the alleged uninsured motorist has been established by judgment or settlement. Butler, 199 Ill. App. 3d at 1022-23; Heneghan, 195 Ill. App. 3d at 452; Shelton, 161 Ill. App. 3d at 656; Iroquois, 285 Ill. App. at 324.

Therefore, as a matter of law, plaintiff filed the present suit less than two years from the “occurrence of the loss.” The eventual course of plaintiff’s suit against Espinosa is not an issue of material fact; whatever may happen there, this suit was filed within the limitations period. Had defendant wished to prevent plaintiff from bringing suit more than two years from the accident, it simply could have written such language into the policy. Instead it agreed to limit plaintiff’s time to sue to two years from the time that the extent of the liability of the alleged negligent driver had been resolved. Therefore, the trial court erred in holding that the two-year limitations period barred the suit.

Plaintiff’s request was timely as a matter of law. We therefore need not discuss plaintiff’s other arguments attacking the trial court’s grant of summary judgment for defendant. The question remains, however, whether the court should have granted plaintiff’s motion for summary judgment. We agree that the trial court should have held, as a matter of law, that plaintiff is entitled to arbitration of her claim and granted such motion.

In State Farm Fire & Casualty Co. v. Yapejian (1991), 217 Ill. App. 3d 516, appeal allowed (1991), 142 Ill. 2d 665, a case that neither party cites, we held that section 143a(l) of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a(l)) unambiguously requires arbitration of any dispute regarding uninsured motorist coverage or hit-and-run motorist coverage, including any dispute over whether such coverage is applicable in the first instance. (Yapejian, 217 Ill. App. 3d at 520-21.) We declined to follow cases such as Elliott v. Inter-Insurance Exchange of the Chicago Motor Club (1988), 169 Ill. App. 3d 702, insofar as they hold that arbitration may not proceed until a court has determined the liability of the uninsured or hit-and-run motorist. (Yapejian, 217 Ill. App. 3d at 519-21.) Insofar as our earlier cases cite the Elliott rationale (see Heneghan, 195 Ill. App. 3d at 453), we hold that they are superseded by Yapejian.

We hold that, as a matter of law, plaintiff is entitled to arbitration of her claim against defendant. We express no opinion on the merits of that underlying claim. However, plaintiff timely invoked the arbitration clause and therefore is entitled to arbitration of her disputed claim. The trial court should have entered summary judgment in favor of plaintiff. Pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we reverse summary judgment for defendant and enter summary judgment for plaintiff.

The judgment of the circuit court of Lake County is reversed and the cause remanded with directions to enter judgment for plaintiff declaring plaintiff is entitled to arbitration of her claim against defendant.

Reversed and remanded.

BOWMAN and DOYLE, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE BELL, Defendant-Appellant.
    Second District
    No. 2—90—0187
    Opinion filed April 6, 1992.
    Rehearing denied May 27, 1992.

      G. Joseph Weller and David Devinger, both of State Appellate Defender’s Office, of Elgin, Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, and James P. Palermini, of Huck, Bouma, Martin & Charlton, of Glen Ellyn (Daniel F. DeLay, of counsel), for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

A jury found the defendant, Jessie Bell, guilty of felony murder, and he was sentenced to 20 years’ imprisonment. The defendant raises two issues on appeal. First, the defendant argues the trial court erred in failing to quash his arrest and suppress his confession. Second, the defendant argues his conviction of felony murder cannot be sustained because the State failed to prove him guilty beyond a reasonable doubt of the predicate offense of robbery. We affirm.

The defendant was charged by indictment with two counts of murder. Count I charged the defendant with the offense of first degree murder in violation of section 9—l(a)(2) of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, par. 9—l(a)(2).) Count II charged the defendant with the offense of first degree murder while attempting to commit a forcible felony, robbery, in violation of section 9— l(a)(3) of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, par. 9—l(a)(3).) Prior to trial, the defendant moved to have his arrest quashed and certain statements he made suppressed. The trial court held a suppression hearing which revealed the following.

Officer Lou Tessman testified that he was involved in the investigation of the shooting death of victim Greg Vlahos, which occurred on July 6, 1989. Officer Tessman had been advised that Mr. Andre Ku-kendahl was in the vicinity of the incident when it occurred. Upon speaking to Mr. Kukendahl, Officer Tessman was informed that Mr. Kukendahl knew of two individuals in the area when the incident occurred, one of them being the defendant. In response to this information, Officer Tessman and Detective Taylor went to the defendant’s home and asked that he come to the police station for questioning on July 7, 1989. Officer Tessman stated the defendant was not handcuffed, neither officer’s gun was drawn, and the defendant was not under arrest at that time. After bringing the defendant to the Wauke-gan police station, they engaged in a conversation concerning the incident. The defendant denied involvement in the shooting death of the victim. Both Officer Tessman and Detective Taylor took notes during the interview. After the interview, the notes were transcribed into a typed statement. The statement, in narrative form, was not signed by the defendant.

Officer Tessman did not see the defendant again until July 13, 1989, at approximately 4:30 p.m. Officer Tessman and Detective Meadie went to the defendant’s residence and again asked him to come to the police station for questioning. The officers did not have an arrest warrant. Officer Tessman testified that no handcuffs were used, the officers never drew their guns, and no force was used to subdue the defendant. The defendant was not told he was under arrest. Nor was he told whether he was free to leave. The defendant accompanied the officers to the Waukegan police department.

The officers took the defendant to the detective bureau, which is located in the basement of the police station. To gain entrance to the detective bureau, Officer Tessman had to unlock a locked door which closed behind the defendant and became locked again. The defendant was then placed in an interview room measuring approximately 10 feet by 10 feet with a desk and two comfortable chairs. The only window in the room was approximately QVz feet from the floor, and the window led into a window well. Officer Tessman testified that Detective Meadie read the defendant his Miranda warnings from a pre-printed form that is used by the police department. After the defendant agreed to speak to the officers, he signed the corresponding form, and the interview began.

The questioning lasted approximately three hours. Officer Tess-man left the room approximately four to five times. He always closed the door behind him, but he testified that it was not locked. The defendant was offered coffee, food and an opportunity to use the bathroom. According to Officer Tessman, the defendant never asked if he could leave. Detective Pratt also joined the questioning, but he was never alone with the defendant. The defendant was not formally arrested until after his statement was obtained.

Detective Meadie also testified at the suppression hearing. He testified that, on July 13, 1989, he received a telephone call from Sergeant Crum informing him that Andre Kukendahl had implicated Jessie Bell and Robert Wright in the shooting. Kukendahl had stated that he had observed both the defendant and Robert Wright at the scene, he heard a gunshot and saw both individuals run from the area.

At that point, Detective Meadie accompanied Officer Tessman to the defendant’s residence. They were driving an unmarked squad car. They waited outside for the defendant while he went back into the house to get something. The defendant accompanied the two officers to the police station. Meadie read the defendant his rights. He indicated with a check mark that the defendant acknowledged that he understood each right as it was read to him. He then gave the defendant the form and asked him to read it. The defendant read it, agreed to talk to the officers and signed the rights waiver form. Meadie was not in the interview room during the entire interview with the defendant. He was going back and forth between the defendant’s interview room and Robert Wright’s interview room. Meadie testified that he never heard the defendant ask for an attorney or ask to make a phone call. Meadie also testified that the only reason the defendant was picked up and brought to the station for questioning was on the basis of the statement made by Andre Kukendahl.

Detective Michael Taylor also testified at the hearing. He testified that, on July 13, 1989, at approximately 3 p.m., he had occasion to interview Andre Kukendahl. Mr. Kukendahl had been interviewed two previous times. The first time he identified himself falsely as “Jeff Parker.” He told the police he had not seen the shooting. During his second interview, he told the police about the two individuals running from the scene and apologized for previously giving a false name and false statements to the police. During his third interview, Mr. Kuken-dahl was escorted to John Reed & Associates to take a polygraph examination. Mr. Kukendahl was asked whether he shot the victim and whether he knew who shot the victim. The examination indicated that not all of Mr. Kukendahl’s statements were truthful. When Mr. Ku-kendahl was confronted with the fact some of his answers appeared untruthful, he gave a statement to the police.

Mr. Kukendahl told Detective Taylor that on July 6, 1989, he was driving down the street when he had car trouble. He pulled his car over into the parking lot of Merlock’s Service Station. He got out of the car to see what was wrong with it. As he was doing so, he heard a loud popping sound. At first he thought the sound was the backfire from a car. He stated that he heard voices saying “Give me your wallet.” He heard a different voice say “I’m not going to give you my wallet.” Then another voice said “What are you giving us a hard time for? We just want your wallet.” He then walked to the curb and observed two black male subjects and a third white male subject with a duffel bag. He observed the subjects talking back and forth. He stated that he then saw the defendant grab the white male subject from behind and hold him. The white subject struggled, and then Kukendahl saw Robert Wright pull a handgun from his waistband and fire it. He saw the victim’s head jerk back and then the victim fell to the ground. He then saw Robert Wright run from the scene down the alley behind the service station where his car had broken down. He did not see which way the defendant ran.

Mr. Kukendahl further stated to Detective Taylor that, after he saw Mr. Wright, he walked to his girlfriend’s house and asked her for a gas can. The two of them began walking back toward the car. Before they reached his car, they saw Robert Wright and the defendant walking back toward the service station down the same alley. They stopped and had a brief conversation. They then saw police lights in the vicinity of the incident and walked over to see what was going on. They observed the victim lying on the ground in a pool of blood. The police told them to leave the area.

Officer Howard Pratt testified that he became involved in the interview of the defendant at approximately 8 p.m. on July 13, 1989. He and Officer Tessman were interviewing the defendant regarding the victim’s murder. Officer Pratt testified that at no time did he threaten the defendant or promise the defendant anything in exchange for his statement. He testified that he and Officer Tessman questioned the defendant regarding the statement of Andre Kuken-dahl. At that time the defendant confessed. Officer Pratt typed up the statement, and the defendant read it and signed it.

On this information, the court found that the State had met its burden of establishing a prima facie case as to the voluntariness of the statements. The defense then called the defendant to the stand.

The defendant testified that he was 17 years old. He stated that, on July 13, 1989, at approximately 4 p.m., he was at home, in his room, combing his hair when he heard a knock at the door. He went to the front door and saw two men standing there who identified themselves as police officers. He recognized one of them from the July 7 interview. They asked him if he would go to the police station so they could ask him a couple of questions. He stated that, at that time, he did not feel he had any choice as to whether he could refuse to go. He went back to his room to get some money and heard one of the officers say “Go look on the side of the house, see if he ran out the back door.” When he came back to the front door, one of the officers was standing back looking toward the back of the house. As the officers escorted the defendant to their car, he testified that one of them walked in front of him and the other walked behind him.

He further testified that, once he was at the police station and in the interview room, he tried to open the door to the interview room, but it was locked. He stated that, when Officer Tessman and Detective Meadie came in, Meadie read him his rights, and he signed the form. He stated that he understood “some of it.” No one told him he was free to leave, and, when he requested to go to the washroom, one of the officers accompanied him and waited outside the door leading into the restroom. He also testified that, when he was interviewed on a previous occasion, he was not read his rights.

After hearing the evidence, the court denied the defendant’s motion to quash the defendant’s arrest and suppress his statements, finding the statements were voluntary and admissible.

At trial, Officer Slusser testified that he was the first officer on the scene after the shooting. He arrived at 11:10 p.m. A crowd of 20 to 25 people were standing around the body. After the medics removed the victim’s body, Officer Slusser located a spent cartridge on the sidewalk where the victim’s body had been. The parties stipulated to the fact that this was a nine millimeter caliber Luger-type cartridge. He then went to the hospital where the victim’s body was taken. There, the paramedics gave him the victim’s driver’s license, which was found in the victim’s wallet located in the victim’s pocket.

A witness who arrived at the scene moments after the shooting testified that, after the crowd began to gather around the victim, he noticed the defendant standing on his left and Robert Wright standing-on his right. Robert Wright asked him what had happened.

Detective Meadie and Officers Tessman and Pratt also testified at trial. Their testimony did not vary from their testimony at the suppression hearing except that no mention was made of the statements made by eyewitness Andre Kukendahl. Officer Tessman read the defendant’s confession into evidence. It read in pertinent part as follows:

"Me and my cousin, Robert Wright were walking *** down an alley. We then saw this white dude walking north down the sidewalk *** so we came up out of the alley *** and up behind this guy. I could see he was kinda [sic] short and that he was carrying a blue shoulder bag. I grabbed him from behind around his waist and Robert cut around the front of this guy. As I was holding him we were yelling ‘Give us your wallet!’ The guy resisted and was able to break free from me and then I saw Robert pull up his shirt and pull out a gun. I then saw the guy grab Robert’s hand and the gun went off and I also saw the guy fall to the ground. Me and Robert then ran between two buildings ***.”

After the jury trial, the defendant was acquitted on count I of the indictment, but found guilty on count II. The trial court denied the defendant’s motion for a new trial, and defendant timely appeals.

First, we will determine whether the trial court erred in denying the defendant’s motion to quash his arrest and suppress statements. The defendant contends that his confession was the fruit of an illegal arrest and, therefore, should have been suppressed by the trial court. The defendant argues that he was seized within the meaning of the fourth amendment when he accompanied Detective Meadie and Officer Tessman to the Waukegan police station for questioning regarding his involvement in the murder of Greg Vlahos.

A trial court’s ruling on a motion to quash arrest and suppress evidence will not be reversed unless it is manifestly erroneous. (People v. Collins (1989), 182 Ill. App. 3d 362, 364; People v. Stoica (1987), 163 Ill. App. 3d 660, 668.) An arrest is a seizure, and a seizure occurs within the meaning of the fourth amendment only when a reasonable person, innocent of any crime and in view of all the circumstances surrounding the incident, would believe that he was under arrest or not free to leave. (People v. Longoria (1983), 117 Ill. App. 3d 241, 248-49, citing United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877.) In the absence of a threatening presence of officers, a display of a weapon, a physical touching, or a use of language or a tone of voice which indicates compliance with the officer’s request might be compelled, a seizure has not taken place. People v. Collins, 182 Ill. App. 3d at 365; People v. Sanders (1981), 103 Ill. App. 3d 700, 709.

The mere fact that the questioning took place in a police station is not, in and of itself, sufficient to convert the questioning into an arrest. (People v. Matthews (1990), 205 Ill. App. 3d 371, 402.) In determining whether an arrest has been made, courts focus on the intent of the police officers and the understanding of the individual being questioned at the time that individual was detained. (People v. Wipfler (1977), 68 Ill. 2d 158.) In assessing an officer’s intent, the court will consider whether there was any formal declaration of arrest and whether other routine procedures associated with arrest were present, such as searching, booking, handcuffing, fingerprinting and photographing. (People v. Johnson (1989), 187 Ill. App. 3d 756, 769.) However, when examining the understanding of the individual being questioned, the court does not look to what that particular individual understood. Rather, as we have stated, the test is what a reasonable person, innocent of any crime, would have thought under similar circumstances. People v. Longoria (1983), 117 Ill. App. 3d 241, 248-49, citing United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509,100 S. Ct. 1870, 1877.

In the case at bar, the defendant voluntarily accompanied the police to the police station. The officers allowed the defendant to go back into his house to retrieve something before he accompanied them to the police station. Once at the police station, the defendant was placed in an interview room. The defendant claims the door to the interview room was locked. The police officers testified that the door remained unlocked the entire time the defendant was in the room. It is for the trier of fact to determine the credibility of the witnesses and resolve conflicts in their testimony. (People v. Matthews, 205 Ill. App. 3d at 404.) Here, the trial court found the police officers more credible.

In addition, the defendant was not handcuffed at any time. There was no display of weapons or contact of any kind. The record does not indicate that the language used by the officers or their tone was suggestive of an arrest. The defendant was not told at any time that he was not free to leave. In fact, he had been interviewed on a prior occasion and was allowed to leave after questioning.

Once in the interview room, the defendant was read his Miranda warnings. The interview lasted approximately three hours. The defendant was given food and drink and was allowed to use the restroom. No traditional indicia of arrest were present. The defendant was not searched, fingerprinted or photographed. Although an officer accompanied the defendant to the restroom, he waited for the defendant outside the door. We do not find this unusual since the defendant was in the basement of the police department, a place that is generally off limits to the public at large.

The defendant alleges that he was threatened while he was being questioned. The officers stated that they did not threaten the defendant. Again, the trier of fact is to determine the credibility of the witnesses, and, in this case, the trial court found the testimony of the police officers more credible. Therefore, we conclude the determination by the trial court that the defendant was not under arrest until after he made the statement confessing to murder was not manifestly erroneous.

Defendant also argues on appeal that his conviction of felony murder cannot be sustained because he was not proved guilty of the predicate offense — armed robbery — beyond a reasonable doubt. The defendant argues the evidence was insufficient to support the underlying felony of attempted armed robbery because the State failed to prove the corpus delicti of that offense.

It is necessary to prove the corpus delicti of an offense in order to prove a defendant guilty of that offense beyond a reasonable doubt. (People v. Neal (1985), 111 Ill. 2d 180, 194.) Failure to prove the underlying offense beyond a reasonable doubt results in the reversal of a conviction of felony murder. People v. Hepler (1985), 132 Ill. App. 3d 705, 713.

Our supreme court has held that proof of the corpus delicti or body of the offense requires both proof of injury or loss as well as proof of criminal agency. (People v. Dalton (1982), 91 Ill. 2d 22, 29; People v. Lambert (1984), 104 Ill. 2d 375, 378.) However, the court has also held that the corpus delicti cannot be proved by the defendant’s confession alone. (People v. Willingham (1982), 89 Ill. 2d 352, 360; People v. Lambert, 104 Ill. 2d at 378.) There must either be some independent evidence or corroborating evidence outside the confession which tends to establish that a crime occurred. (People v. Willingham, 89 Ill. 2d at 360.) If there is such evidence and that evidence tends to prove the offense occurred, then that evidence, if it corroborates the facts contained in the defendant’s confession, may be considered along with the confession to establish the corpus delicti. (People v. Willingham, 89 Ill. 2d at 361.) The requirement of proof apart from a defendant’s own statements reflects a long-standing mistrust of extrajudicial confessions. People v. Furby (1990), 138 Ill. 2d 434, 447.

The corroboration requirement stems from an attempt to assure the truthfulness of the confession and recognizes that the reliability of a confession “ ‘may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past.’ ” People v. Willingham, 89 Ill. 2d at 359, quoting Smith v. United States (1954), 348 U.S. 147, 153, 99 L. Ed. 192, 199, 75 S. Ct. 194, 197.

The determination whether there is sufficient independent proof of the corpus delicti will be judged by the particular circumstances of the case. (People v. Furby, 138 Ill. 2d at 450.) The rule of corpus delicti only requires that the evidence apart from the defendant’s confession tends to show that a crime was committed; the independent evidence need not establish the crime beyond a reasonable doubt. People v. Furby, 138 Ill. 2d at 450.

In addition to the defendant’s confession, the court heard the testimony of Dennis Ulmer and Coy Dabbs. Dennis Ulmer testified that he was driving down the street upon which Greg Vlahos was shot at approximately 10:58 p.m. He stated that he heard a shot and he saw a man fall to the ground. The man was carrying a blue bag. He stated that he did not see anyone near the body.

Coy Dabbs testified that he was one of the first people on the scene after the shooting. The police instructed him to wait near the body. He stated that a crowd began to form and several members of the crowd approached him. Mr. Dabbs identified Jessie Bell and Robert Wright as two of the individuals in the crowd who approached him. He testified that Robert Wright was standing to his left and that he asked Mr. Dabbs what had happened. He testified that the defendant was standing to his right but did not speak. This testimony is consistent with the portion of the defendant’s confession stating that he returned to the scene of the shooting where he again met up with Robert Wright.

In his confession, the defendant stated that the victim had been carrying a blue bag. A blue bag was found next to his body. In addition, the State produced photographs of the area where the crime occurred and where the defendant described his escape route. The photographs corroborated the defendant’s statements.

We conclude the evidence, independent of the defendant’s confession, sufficiently corroborated the confession as to the attempted armed robbery. Although the evidence apart from the confession does not establish an armed robbery, evidence that a man was shot to death on a city street at 11 p.m. and that the shooter or shooters fled tends to establish an attempted armed robbery. (See People v. Montes (1989), 192 Ill. App. 3d 874, 881.) As the court stated in Montes, “There are other possibilities, of course. There could have been a dispute between two persons, for example. But the rule does not require that the independent evidence establish the crime beyond a reasonable doubt.” Montes, 192 Ill. App. 3d at 881.

We emphasize — the rule was designed to insure the reliability of the defendant’s confession, not to establish the crime beyond a reasonable doubt. Accordingly, the independent evidence or corroborating evidence need only tend to establish that a crime occurred. (People v. Howard (1991), 147 Ill. 2d 103, 128; Willingham, 89 Ill. 2d at 360.) That requirement has been met in this case.

The evidence introduced at trial sufficiently corroborated the facts contained in the defendant’s confession, and that evidence considered together with the confession established the corpus delicti of the offense of attempted armed robbery.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

McLaren and NICKELS, JJ., concur.


author: JUSTICE McLAREN

text:
      In re MARRIAGE OF ELAINE K. METZ, n/k/a Elaine K. Storto, Petitioner-Appellant, and MICHAEL A. METZ, Respondent-Appellee.
    Second District
    No. 2—91—1265
    Opinion filed August 13, 1992.

      Walter J. Donat, of Donat & Donat, P.C., of Batavia, for appellant.
    William T. King, Jr., and Kurt A. Niermann, both of Presbrey & Amoni, P.C., of Aurora, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Elaine Storto (the mother), appeals from the judgment of the circuit court which granted the petition of respondent, Michael Metz (the father), to change custody of their minor child to him. The court also ruled on the mother’s petition to revive the judgment against the father for child support arrearages. On appeal, the mother raises several issues: whether the trial court erred (1) when it changed custody to the father; (2) in computing the amount of child support the mother owed to the father; (3) in failing to sentence the father to jail for contempt of court; and (4) in suspending payments on an arrearage until the minor child reaches emancipation.

This cause arose, in part, as a result of the father’s successful efforts at avoiding his child support obligation over a 10-year period. The father sought custody of the daughter and support payments from the mother so that he would not have to make more support payments. The father had been found in contempt of court on three previous occasions as a result of his failure to pay child support.

First, we will summarize the facts relevant to the custody issue. The parties were married in 1974, and Melissa, their only child, was bom on April 18, 1975. In September 1980, the mother filed a petition for dissolution of the marriage. On November 20, 1980, the trial court entered the judgment of dissolution, which awarded sole custody of the daughter to the mother. In June 1990, the mother and the daughter got into a heated argument which resulted in the mother bringing the daughter one day early for visitation with the father. The argument concerned the daughter’s smoking, skipping school and wearing too much makeup. In the heat of anger, the mother, in effect, threw the daughter out of her house and told the daughter that the father could take care of her.

Near the end of that summer, the daughter requested to stay with the father. Believing that the daughter would be attending Aurora West high school, the mother agreed to allow the daughter to stay with the father. The mother hoped that by going to a different high school the daughter would forget her boyfriend at the school in Plano. However, the mother learned the daughter was still attending the school in Plano. When the mother informed the father of her intention to take the daughter back home with her, the father got an ex parte temporary restraining order to prevent the mother from taking the daughter. The father also filed a petition for a change of custody.

The court heard testimony at two hearings, one on August 22, 1991, the second on October 1, 1991. After considering the extensive evidence of the parties’ relationship with the daughter, the court decided that it would be in the daughter’s best interest for her to remain with the father. The court’s decision was premised on its concern that, if the daughter was ordered to live with the mother, the daughter would rebel and might drop out of school or get pregnant to spite the mother.

The mother contends that the trial court erred in changing custody of the daughter to the father. While there is some merit to the mother’s contention that the father might not exercise sufficient supervision and control over the daughter, we cannot discount the court’s reason for the change of custody.

A court may modify a custody judgment only if it finds by clear and convincing evidence that circumstances have changed and that modification is necessary for the best interests of the child. (Ill. Rev. Stat. 1991, ch. 40, par. 610(b).) There is a legislative presumption in favor of the present custodian which is designed to promote stability and continuity in the child’s custodial relationships. (In re Marriage of Valter (1989), 191 Ill. App. 3d 584, 590.) If the court finds that the presumption is overcome, the trial court’s determination is afforded great deference, since it had the opportunity to observe the witnesses’ demeanor and to assess their credibility. In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498-99.

The presumption in favor of the present custodian was overcome here because the daughter had been living with the father for a year. The changed circumstances were that the mother threw the daughter out of the house, and the daughter was angry with the mother. The daughter expressed a preference to live with the father. The court found that it would be in the daughter’s best interests if custody were awarded to the father. In light of the age of the daughter, who is now 17 (see Valter, 191 Ill. App. 3d at 590), and the deterioration of the relationship between mother and daughter, we conclude that the trial court’s decision to modify custody was not an abuse of discretion.

Before considering the remaining issues, we will summarize the facts regarding the child support arrearages. In 1980, when the trial court dissolved the marriage, it ordered the father to pay $40 per week for child support and to be responsible for all medical and dental care for the daughter. By May 1981, the father was $440 in arrears on his child support obligation. In October 1981, the mother filed a petition for a rule to show cause against the father because, among other things, the father was $745 in arrears for child support. The rule was continued in part because the father became unemployed. The court ordered the father to pay $25 per week for child support.

As of December 22, 1981, the father was $965 in arrears. The court entered judgment for the mother in that amount. The rule was dismissed on June 22,1982.

In an agreed order, entered October 21, 1983, the parties agreed that the father’s child support arrearage was $2,525, including the judgment amount. The order further provided that the amount of child support was increased to $75 per week.

The mother filed another rule to show cause on September 14, 1984, based on the father’s failure to pay child support. The parties agreed that the arrearage, as of November 1, 1984, was $5,150. The father paid $1,500 in open court, leaving a balance due of $3,650. The court ordered the father to pay $100 per week: $75 for child support and $25 to remedy the arrearage.

In September 1985, the court reduced the father’s support obligation to $45 per week until the father recovered from a disability. On October 29, 1985, the mother filed another petition for a rule to show cause. On the same date, the father filed a petition to modify the judgment of dissolution to suspend his support obligations while the father exercised a six-week visitation period with the daughter. On October 29, 1985, the court found the father in contempt and ordered him incarcerated for 10 days or until he purged himself of contempt by paying at least $1,735. The father failed to pay the requisite amount.

In June 1987, the mother filed another petition for a rule to show cause. The court issued the rule, in which it stated that the arrearage amount from October 1986 to June 19, 1987, was $2,925. On July 7, 1987, the court issued another rule to show cause, in which it stated that as of July 7 the arrearage was $4,000. On January 28, 1988, the court entered an agreed order which provided that child support was set at $40 per week, and the father was ordered to pay $20 per week for the arrearages.

On May 2, 1988, the court entered an order finding that “[a]s of 5/2/88, in addition to Judgments previously entered for child support arrearages, there appears to be due $4,525,” and the father failed to pay anything for child support. The father was ordered to appear in court on May 17 for a hearing to show why he should not be held in contempt.

The father failed to appear, so the trial court entered a rule to show cause and found that the arrearage, as of May 16, 1988, was $4,605. The court set bond at $1,000 for the contempt charge. Evidently, the father left the State and did not return until early in 1990.

On August 9, 1990, the court remanded the father to the custody of the Kane County sheriff and continued the bond. The father posted bond and was released.

On December 20, 1990, the court again issued a rule to show cause. The order stated that as of December 19 the arrearage amount was $8,535. The matter was continued for a hearing in April 1991.

On March 26, 1991, the father filed a petition for change of custody and a petition for a temporary restraining order. In the latter petition, the father alleged that the daughter had been residing with the father since June 1990 and that the mother threatened to remove the daughter from the father’s possession if he took any action to obtain custody. The court issued the temporary restraining order.

On April 25, 1991, the court found the father in contempt of court, but stayed the sentence until the hearing on the modification of custody petition. The father subsequently filed a petition for a temporary abatement of his support obligation and requested that the mother be ordered to pay child support to him.

On May 22, the court revived the judgment of December 29, 1981, in the amount of $826 plus interest of $671.10. On that same date, the court set the arrearage amount at $10,750, but ordered that neither party would be obligated to pay support until further order.

Following a hearing on August 22, 1991, and another on October 1, the court found that the father owed an arrearage of $13,225, but that as long as the daughter resided with him, he would be credited $80 per week. The court further ordered that, when the daughter becomes emancipated, the court would entertain a petition for a judgment for monthly installments of the remainder of the arrearage owed to the mother. The mother’s attorney objected to the amount of child support apportioned to her, stating:

“Shouldn’t the credit be in the amount of 20 percent of Mrs. Metz’s net take-home, which I believe the evidence shows is $267?
THE COURT: It will be on the basis of $80 a week. I think that is fair.”

At that point, the hearing terminated.

The mother first contends that the trial court erred in computing the amount of child support she must pay to the father. Section 505 of the Illinois Marriage and Dissolution of Marriage Act sets forth the minimum payment guidelines for child support. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(l).) Under section 505, the court should order support in the amount of 20% of the supporting party’s income for one child unless the court finds a reason to deviate from the guidelines and it makes express findings for doing so. (Ill. Rev. Stat. 1991, ch. 40, pars. 505(a)(l), (a)(2).) The mother argues that the trial court should have ordered her to pay $53.40 per week, which amounts to 20% of her net income. Instead, the court ordered her to pay $80 per week, or 30% of her net income, because the court believed “that is fair.”

The father responds that the mother has waived this argument by failing to raise it in the trial court. We disagree. As the above-quoted portion of the record demonstrates, the mother’s counsel raised the question of the proper amount of the support, and the court stated that the amount it ordered was “fair.” Thus, the mother has not waived the issue. The father makes no other argument in opposition to the mother’s contention that the amount of child support should be reversed.

The determination of the proper amount of child support is within the trial court’s discretion, which we will not disturb unless there was an abuse of that discretion. (In re Marriage of Olson (1992), 223 Ill. App. 3d 636, 651.) In general, the trial court should abide by the guidelines of section 505, and it need not consider the factors listed in section 505(a)(2) unless it deviates from the guidelines. (In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093.) The trial court must make specific findings if its award deviates from the guidelines. Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2); Olson, 223 Ill. App. 3d at 651.

The court did not make specific findings; therefore, if the award is more than 20% of the mother’s net income, the record fails to support the court’s exercise of discretion. The uncontroverted evidence establishes that the mother’s net weekly income was $267. Since 20% of that amount is $53.40, and the trial court’s only reason for setting the award at $80 per week was that the court felt that amount was “fair,” we conclude that the court abused its discretion.

Next, the mother contends that the trial court erred in failing to sentence the father to jail as a sanction for his contempt of court. The father responds that this court does not have jurisdiction to consider the issue because a contempt finding is not final and appealable until the court imposes a sanction. See In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, 682.

Although the father is correct that one cannot appeal a finding of contempt until a sanction is imposed (Ryan, 188 Ill. App. 3d at 682), it would appear a sanction was imposed, though not the one the mother wanted. The mother is requesting this court to order the trial court to impose an additional sanction of incarceration for a contempt of court.

Although civil contempt is designed to coerce the contemnor to comply with a court order for the benefit of the opposing litigant, “civil contempt is a punishment for an affront to the authority of the court,” and, as such, the other party has no right to any fine imposed. (In re Marriage of Wilde (1986), 141 Ill. App. 3d 464, 473.) Thus, it appears that the opposing litigant does not have standing to challenge the failure to impose incarceration as a sanction for civil contempt.

Even if the mother had standing to contest the failure to incarcerate the father, she has failed to establish an abuse of discretion. The power to punish for civil contempt rests within the trial court’s sound discretion (Cesena v. DuPage County (1990), 201 Ill. App. 3d 96, 114, rev’d on other grounds (1991), 145 Ill. 2d 32) and includes the power to impose no sanction. (In re Marriage of Betts (1988), 172 Ill. App. 3d 742, 746; see also In re Marriage of Winton (1991), 216 Ill. App. 3d 1084, 1088-89.) In the present cause, the trial court apparently decided not to impose incarceration as a sanction to coerce payment. The court fashioned a scheme whereby the arrearage would be decreased by offsetting the amount of child support the mother owed to the father. Thus, the trial court did not neglect to enter a sanction, and its decision not to incarcerate the father has not been shown to be an abuse of discretion. See Betts, 172 Ill. App. 3d at 746.

Finally, the mother contends that the trial court erred in staying enforcement of the judgment until the mother’s support obligation terminates. The mother correctly notes that child support judgments are to be enforced as any other judgment. (Ill. Rev. Stat. 1991, ch. 40, par. 505(d).) The father responds that the court did not stay enforcement because she is entitled to a setoff of her support obligation.

The father’s argument is without merit. Sections 12—176 and 12—177 of the Code of Civil Procedure provide that when judgments between the parties are to be set off, and one of the judgments is larger than the other, “the balance due on the larger judgment may be collected and paid in the same manner as if there had been no set-off” (Ill. Rev. Stat. 1991, ch. 110, par. 12—177). Thus, the mother is still entitled to enforce the balance of the judgment.

In Milligan v. Cange (1990), 200 Ill. App. 3d 284, the court considered a similar issue. The trial court in Milligan stayed enforcement of a child support judgment until the father became employed. The appellate court in Milligan recognized that Supreme Court Rule 305 (134 Ill. 2d R. 305) authorizes a trial court to stay enforcement of a judgment pending an appeal, but that rule did not apply, and there was “no statutory or common law authority for the trial court’s stay of execution of its order.” (Milligan, 200 Ill. App. 3d at 295.) The court reasoned that “[t]he unfettered right to stay execution for monetary judgments invites problems,” and it concluded that the judgment creditor should be entitled to attempt to enforce the judgment. (200 Ill. App. 3d at 295.) Further, the court held that the trial court had no authority to stay the enforcement of the judgment sua sponte. (200 Ill. App. 3d at 295.) We agree with the basic rationale of Milligan, and we find it persuasive on these facts.

The only circumstances in which a court may stay a judgment are prior to a final disposition on general equitable grounds and pursuant to Rule 305, neither of which applies here. (See Cahokia Sportservice, Inc. v. Illinois Liquor Control Comm’n (1975), 32 Ill. App. 3d 801; People ex rel. Hartigan v. Illinois Commerce Comm’n (1992), 148 Ill. 2d 348, 402-03.) If the court were concerned that the mother was unwilling or unable to make her support payments, the court could have considered the creation of a trust. (See In re Marriage of Vucic (1991), 216 Ill. App. 3d 692.) However, we are not aware of any authority allowing the court to stay the enforcement of the judgment herein. Since the trial court lacked the authority to stay enforcement of the judgment, the mother is entitled to seek enforcement of the judgment. We therefore vacate the order staying enforcement of the judgment.

The order modifying custody is affirmed. The order awarding child support to the father is modified to $53.40 per week as a setoff, and the order staying enforcement of the mother’s judgment for the child support arrearage is vacated.

Affirmed in part; modified in part; and vacated in part.

INGLIS, P.J., and DUNN, J., concur.