author: JUSTICE INGLIS

text:
    B.R. LINDHOLM, a/k/a B. Richard Lindholm, Plaintiff-Appellee, v. PATRICIA A. HOLTZ, d/b/a Soup to Nuts, Natural Foods, Defendant-Appellant (Good Food Enterprises, Inc., Defendant).
    Second District
    No. 2 — 91—0723
    Opinion filed November 6, 1991.

      Jerome S. Feder, of Chicago, for appellant.
    M. Katherine Moran, of Drendel, Schanlaber, Horwitz & Tatnall, of Aurora, for appellee.
    Kenneth L. Kaergard, of Shearer, Blood, Agrella & Boose, of St. Charles, for Good Food Enterprises, Inc.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Patricia Holtz, d/b/a Soup to Nuts, Natural Foods (Natural Foods), appeals from an order of the circuit court which imposed a preliminary injunction against her under the Uniform Fraudulent Transfer Act (Fraudulent Transfer Act) (Ill. Rev. Stat. 1989, ch. 59, par. 101 et seq.). The appeal is pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). Defendant raises three issues on appeal: (1) whether the transfer of assets from Natural Foods to Soup to Nuts, Inc. (Nuts, Inc.), was fraudulent in light of the claim of plaintiff, B.R. Lindholm; (2) whether plaintiff’s failure to seek avoidance of the transfer of assets from Natural Foods to Nuts, Inc., prevents a claim to set aside a subsequent transfer from Nuts, Inc., to a third party as fraudulent; and (3) whether plaintiff has standing to seek injunctive relief under the Fraudulent Transfer Act. We reverse and remand.

On May 26, 1988, plaintiff agreed to rent to defendant a commercial space for defendant’s business in Geneva, Illinois. Defendant occupied the premises on December 1, 1988. The term of the lease was to begin on that date and end on November 30, 1993, with rent installments due each month. On May 30, 1990, defendant vacated the premises and moved to a new location in Geneva.

On August 24, 1990, plaintiff filed a complaint seeking $113,772 in unpaid rent. In her answer, defendant admitted that she signed the lease and occupied the premises and that she vacated the premises prior to the expiration of the lease. Defendant asserted the affirmative defense of constructive eviction. Plaintiff denied that he violated any provisions of the lease or that he did not maintain the premises.

On April 30, 1991, plaintiff moved to amend the complaint to add Good Food Enterprises, Inc. (Good Food, Inc.), as a necessary defendant. In the amended complaint, plaintiff alleged that on October 22, 1990, defendant incorporated her business as Nuts, Inc., which is the successor to defendant. Plaintiff further alleged that on March 5, 1991, notice of the intended transfer was sent to debtors of Nuts, Inc., which stated that Nuts, Inc., intended to transfer to Good Food, Inc., all of its assets. Plaintiff claimed that the transfer of assets from Nuts, Inc., to Good Food, Inc., violated the Fraudulent Transfer Act. Plaintiff requested the court to void the transfer of assets from Nuts, Inc., to Good Food, Inc., and attach the assets that were transferred.

Plaintiff also moved for a preliminary injunction to prohibit defendant from further disposing of any funds she or Nuts, Inc., received in the transfer of assets to Good Food, Inc., and to place any amounts due and owing to defendant from Good Food, Inc., into an escrow account pending the resolution of this cause. Defendant opposed the preliminary injunction on the ground that the transfer of assets from Nuts, Inc., was not done with the intent to defraud plaintiff and that plaintiff was not a creditor of Nuts, Inc.

The court granted the preliminary injunction and ordered that further payments due from Good Food, Inc., to defendant be es-crowed and that Good Food, Inc., was enjoined from further transferring assets other than in the ordinary course of business. Defendant’s timely appeal followed.

Defendant’s first two contentions can be consolidated to address the true issue on appeal: whether the transfer of assets from Nuts, Inc., to Good Food, Inc., was fraudulent. If the transfer was not fraudulent, the preliminary injunction imposed by the trial court was improper. The trial court granted relief pursuant to section 5(a)(1) of the Fraudulent Transfer Act, which provides that a transfer is fraudulent if the debtor made the transfer “with actual intent to hinder, delay, or defraud [the] creditor.” (Ill. Rev. Stat. 1989, ch. 59, par. 105(a)(1).) Intent may be determined by considering, among other factors, the fact that, before the transfer was made, the debtor had been sued. (Ill. Rev. Stat. 1989, ch. 59, par. 105(b)(4).) Section 108(a) of the Fraudulent Transfer Act provides, in relevant part, certain remedies for creditors:

“(1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim;
(2) an attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by the Code of Civil Procedure;
(3) subject to applicable principles of equity and in accordance with applicable rules of civil procedure,
(A) an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property.” (Ill. Rev. Stat. 1989, ch. 59, par. 108(a).)

Plaintiff sought, among other remedies, a preliminary injunction pursuant to subsection (3)(A). Thus, we turn to a review of the applicable principles of equity.

A preliminary injunction is an extraordinary remedy which should be granted with the utmost care. (Central Imports, Inc. v. Dortmunder Actien-Brauerei AG (1991), 214 Ill. App. 3d 461, 465.) The remedy is designed to preserve the status quo until the cause can be decided on the merits. (Buzz Barton & Associates v. Giannone (1985), 108 Ill. 2d 373, 386, citing Nester Johnson Manufacturing Co. v. Goldblatt (1939), 371 Ill. 570, 574.) A trial court’s decision to issue a preliminary injunction will not be disturbed on appeal absent an abuse of discretion. (Cannon v. Whitman Corp. (1991), 212 Ill. App. 3d 79, 81.) That determination is based on an evaluation of whether the trial court’s decision was against the clear weight of the evidence. Hough v. Weber (1990), 202 Ill. App. 3d 674, 688.

To be entitled to a preliminary injunction, plaintiff needed to establish: (1) a certain right in need of protection; (2) the injunction is necessary to prevent an irreparable injury; (3) there is no adequate remedy at law; (4) plaintiff has a substantial likelihood of success on the merits; and (5) without the preliminary injunction, plaintiff will suffer greater harm than defendant would if the injunction were to issue. Hough, 202 Ill. App. 3d at 684.

Plaintiff alleged that the transfer of assets was fraudulent in fact. In such circumstances, the creditor must prove a specific intent to delay, hinder or defraud. (Gendron v. Chicago & North Western Transportation Co. (1990), 139 Ill. 2d 422, 437.) Although plaintiff argues that he proved one of the “badges of fraud,” that the transfer was made after suit had been filed against defendant (Ill. Rev. Stat. 1989, ch. 59, par. 105(b)(4)), we do not agree that this fact is sufficient here to show actual fraud.

A basic principle of statutory construction is to give effect to the intent of the legislature. (Ruva v. Mente (1991), 143 Ill. 2d 257, 263.) That intent may be derived from considering the language of the entire enactment and its purpose. (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 96.) In the absence of ambiguity, the language of a statute must be given its plain and ordinary meaning. DeClerck v. Simpson (1991), 143 Ill. 2d 489, 492.

According to the plain language of the statute, the factors listed in section 5 of the Fraudulent Transfer Act to determine intent are merely considerations (Ill. Rev. Stat. 1989, ch. 59, par. 105(b)), and the factor here is only 1 of 11 nonexclusive factors listed in the statute. We interpret the statutory language as not creating a presumption of intent to defraud, particularly when the creditor has only proven one of the statutory factors. See Alces & Dorr, A Critical Analysis of the New Uniform Fraudulent Transfer Act, 3 U. Ill. L. Rev. 527, 538 (1985).

Our research has uncovered no Illinois cases concerning this aspect of the Fraudulent Transfer Act. Because the Fraudulent Transfer Act provides that it shall be construed in uniformity with the law of States which have adopted it (Ill. Rev. Stat. 1989, ch. 59, par. 112), we may turn to other jurisdictions for guidance in this area.

Our interpretation of section 5 of the Fraudulent Transfer Act is bolstered by the interpretation of that provision of the Fraudulent Transfer Act adopted by West Virginia. In Rich v. Rich (W. Va. 1991), 405 S.E.2d 858, a case neither party cited, the supreme court of West Virginia considered the statutory factors to determine whether a transfer was fraudulent. The court found that the presence of seven of the factors “strongly suggested]” actual intent to defraud, but that such a determination “must be made by the trial court upon a taking of evidence.” (Rich, 405 S.E.2d at 862, 864.) We interpret Rich to mean that proof of some, or even all, of the factors listed in the Fraudulent Transfer Act does not create a presumption of actual intent to defraud. Rather, those factors are indicators of such intent on which the trial court may rely to make its findings based on evidence presented by the parties.

Plaintiff introduced no evidence to support the conclusion that the transfer was done with the actual intent to defraud. There is no evidence that defendant became insolvent due to the transfer, or that she received inadequate compensation from the proceeds. The mere fact that she sold the business assets in exchange for cash does not mandate the conclusion that she did so fraudulently or that plaintiff will be hindered in his attempt to collect on any judgment he might receive. However, plaintiff refers to the colloquy between plaintiff’s attorney and the trial court at the hearing:

“MS. MORAN [plaintiff’s counsel]: What about the relief requested with regard to Mrs. Holtz disposing of any of the proceeds that she received or that Soup to Nuts received.
THE COURT: That’s gone, so I’m not going to attach that.”

According to plaintiff, this colloquy shows that the court found that defendant disposed of the proceeds that she had already received from the sale of the assets. We disagree. There is no evidence in the record to show what became of the proceeds of the sale or whether defendant still retained them, notwithstanding the comment of the trial court. Without such evidence, the court’s decision cannot be supported. Therefore, the order granting the preliminary injunction was an abuse of discretion.

Because of our conclusion that the court should not have granted the preliminary injunction, we need not address the other issues defendant raises on appeal.

The order of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
      In re MARRIAGE OF THOMAS SALATA, Petitioner-Appellee, and DEBRA M. SALATA, n/k/a Debra Kuhn, Respondent (David W. Alspaugh, Appellant).
    Second District
    No. 2 — 90—1440
    Opinion filed November 7, 1991.
    David W. Alspaugh, of Wheaton, appellant pro se.

    No brief filed for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

This appeal arises from the September 21, 1990, order of the circuit court of Du Page County which dismissed with prejudice David Alspaugh’s petition for attorney fees and costs. Alspaugh represented Debra Salata, n/k/a Debra Kuhn, respondent (wife), in a dissolution of marriage proceeding filed by petitioner, Thomas Salata (husband). Alspaugh’s petition to reconsider was denied on November 27, 1990, and he appealed. He contends that the trial court abused its discretion in dismissing his fee petition with prejudice because of his failure to have available an outside or third-party expert (outside expert) to testify at the time the matter was set for hearing. Alspaugh also argues that the petition was not inexcusably delayed to warrant dismissal.

Although no appellee’s brief has been filed, we are not precluded from addressing the merits on that basis. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Alspaugh initially represented the wife in two petitions for orders of protection filed on May 1, 1989. Thereafter he represented the wife in the dissolution proceedings when the husband filed his petition for dissolution of marriage on May 4, 1989. A prove up hearing was held on December 29, 1989, and Alspaugh filed a petition for fees and costs on January 23, 1990.

A judgment of dissolution of marriage was entered on February 20, 1990. The fee hearing was reset until March 21, 1990, by agreed order. A later agreed order set the hearing for June 14, 1990. The matter was again postponed until September 21, 1990, on the court’s own motion.

At the hearing on Alspaugh’s petition for fees the husband’s attorney informed the trial court that Alspaugh did not intend to call an outside expert to testify in support of his fee petition. Husband’s attorney objected on the basis that an outside expert was required, and he asked for a continuance to allow Alspaugh to obtain an outside expert. Without hearing from Alspaugh, the trial court noted that there had been ample time to prepare for the hearing and refused the requested continuance. Since Alspaugh did not have an outside expert to testify regarding the reasonableness or necessity of his fees, the trial court then dismissed the petition with prejudice.

Alspaugh then argued that an outside expert was not required. He was prepared to go forward on his own testimony to prove the reasonableness of his fees and to examine the parties regarding their financial condition. In view of the husband’s objection, however, Alspaugh then asked for a later date to call an outside expert.

The trial court noted the length and nature of the case and that Alspaugh sought fees over $10,000. It indicated an outside expert was needed to show the reasonableness and necessity of the fees. Since Alspaugh had no outside expert, the petition was summarily dismissed.

The order of dismissal provided that Alspaugh failed to retain and have prepared to testify an (outside) expert in support of his fee petition. It recited that petitioner (incorrectly referred to as respondent) had answered ready for trial and that Alspaugh had ample opportunity to prepare for trial.

Alspaugh’s motion to reconsider was denied following a hearing on November 27,1990. He filed a timely notice of appeal.

Based on the trial court’s order and our reading of the record, the trial court dismissed the petition for fees based on Alspaugh’s failure to have an outside expert to testify regarding the reasonableness of his fees. The trial court would not allow a continuance for Alspaugh to secure an outside expert; however, its decision on that matter ultimately rested on its finding that an outside expert was required. Alspaugh stood ready to proceed on his petition without an outside expert. Therefore, the first issue on appeal is whether outside expert testimony is required to prove a petition for attorney fees.

The burden of proof is on the attorney to establish the value of his/her services in a petition for fees. (In re Estate of Callahan (1991), 144 Ill. 2d 32, 43-44.) The amount of an award of fees depends upon whether the work was reasonably required or necessary for the proper performance of legal services in the particular case. (In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 917.) Factors to be considered in determining the amount of fees are the skill and standing of the attorney, the nature of the case, the novelty and difficulty of the questions in issue, the amount and importance of the subject matter, the degree of responsibility, the usual and customary charges, and the benefits resulting to the client. (In re Marriage of Osborn (1990), 206 Ill. App. 3d 588.) The awarding of fees is within the discretion of the trial court. In re Marriage of Piccione (1987), 158 Ill. App. 3d 955.

The value of legal services may be shown by the opinions of outside experts. (See In re Estate of Healy (1985), 137 Ill. App. 3d 406.) The value of legal services may be shown by the testimony of the petitioning attorney (see, e.g., Callahan, 144 Ill. 2d 32; Johns v. Klecan (1990), 198 Ill. App. 3d 1013; In re Marriage of Armstrong (1982), 107 Ill. App. 3d 217) or by the testimony of the petitioning attorney and outside experts (see, e.g., In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417). The trial court may accept or reject the testimony of the parties’ outside experts, and it is not bound by the petitioning attorney’s opinion of what constituted a reasonable fee. (Healy, 137 Ill. App. 3d at 411.) Generally then, case law establishes that the reasonableness of an attorney’s fees must be shown by expert testimony either by the petitioning attorney, an outside attorney or both.

In applying the factors used to determine an amount of fees, this court has stated that a trial court may rely on its own knowledge and experience in determining the value of legal services. (Angiuli, 134 Ill. App. 3d at 423; accord McHugh v. Olsen (1989), 189 Ill. App. 3d 508; Armstrong, 107 Ill. App. 3d 217.) Cases such as Callahan (144 Ill. 2d 32), Osborn (206 Ill. App. 3d 588), and Armstrong (107 Ill. App. 3d 217) involved fee awards where no outside expert was called based upon our reading of the facts therein. Recently the Appellate Court, First District, held that while it may be proper for an attorney seeking fees to present expert testimony on the issue of what is a reasonable fee, citing Angiuli (134 Ill. App. 3d 417), an attorney was not required to do so as a matter of law. (Johns, 198 Ill. App. 3d at 1024.) In Johns the petitioners had argued that no fees should be awarded because respondents (attorneys) failed to present expert testimony on the reasonableness of the value of their services on an hourly basis; however, the attorneys themselves had testified regarding the value of their services. It is clear from the facts and issues in Johns that the Appellate Court, First District, was referring to outside or third-party expert testimony to prove the reasonableness of attorney fees.

We recognize that the central issues in Johns (198 Ill. App. 3d 1013) concerned reasonable attorney fees under the doctrine of quantum meruit where an attorney is discharged in a contingency fee arrangement. A dissolution of marriage case is not a contingency fee situation. However, we do not read nor find that the point of law stated in Johns regarding outside expert testimony is limited to contingency fee situations or quantum meruit issues involving attorney fees. While an attorney may wish to provide the testimony of an outside expert to support his/her petition for fees in a dissolution of marriage case, no outside expert is required as a matter of law. See Johns, 198 Ill. App. 3d at 1024.

The trial court herein erred by requiring Alspaugh to present an outside expert to testify regarding his fee petition. Since its initial determination of this requirement was improper, we need not address whether the court should have allowed a continuance so Alspaugh could retain an outside expert. Alspaugh is entitled to a hearing on his petition. We make no determination as to the reasonableness or necessity of Alspaugh’s fees by this opinion. The trial court’s order is reversed and the matter remanded for a hearing on Alspaugh’s petition for fees and costs.

The judgment of the circuit court is reversed, and the cause is remanded for a hearing consistent with this order.

Reversed and remanded.

REINHARD, P.J., and BOWMAN, J., concur.


author: JUSTICE KNECHT

text:
    TIMES MIRROR CABLE TELEVISION OF SPRINGFIELD, INC., Plaintiff-Appellee, v. FIRST NATIONAL BANK OF SPRINGFIELD, as Trustee, et al., Defendants-Appellants.
    Fourth District
    No. 4 — 91—0304
    Opinion filed November 14, 1991.
    — Rehearing denied December 16, 1991.

      Paul Brown and Harvey M. Stephens, both of Brown, Hay & Stephens, of Springfield, for appellants.
    Neil E Flynn and James M. Morphew, both of Springfield, for appellee.
    Richard J. Prendergast, Ltd., of Chicago (Richard J. Prendergast and Joseph E. Tighe, of counsel), for amicus curiae.

   JUSTICE KNECHT

delivered the opinion of the court:

The plaintiff, Times Mirror Cable Television of Springfield, Inc., sought to install cable television in the Bissel Village Mobile Home Park (Bissel Village) in Springfield, Illinois. The legal owner of Bissel Village, First National Bank of Springfield, trustee under trust No. 2834, the operator of Bissel Village, Capital Supply Co., Inc., and the equitable owner, Elmer Knecht, refused the plaintiff access to the mobile home park. Plaintiff sued the owners and operator of Bissel Village seeking a permanent injunction, which the Sangamon County circuit court granted. On appeal, defendants contend section 11 — 42—11.1 of the Illinois Municipal Code (cable statute) (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 42—11.1) violates the United States and Illinois Constitutions. They also argue no evidence of public use was presented and the circuit court erred in finding plaintiff’s notice of intent to install cable met statutory requirements. We disagree and affirm.

After receiving requests for cable television from Bissel Village residents, plaintiff notified the defendants of its intent to install cable television facilities at the mobile home park. Defendants responded to plaintiff’s letter and denied plaintiff access to Bissel Village. Defendants cited defective notice and their rights under the due process clause of the United States Constitution as grounds for their refusal to allow plaintiff to install cable services. Defendants made clear any entry on the premises by plaintiff would be treated as trespass.

Plaintiff filed suit seeking a permanent injunction on November 7, 1989. Plaintiff filed an amended complaint on January 2, 1991. The amended complaint alleged plaintiff entered a nonexclusive franchise agreement with the City of Springfield (city) which allowed plaintiff to provide cable television service to the city. The city annexed the property on which Bissel Village is located on April 4, 1972, and the property has remained within city limits. Various Bissel Village residents notified the plaintiff of their desire to receive the cable television services offered by plaintiff. The complaint alleged plaintiff’s notification of intent to install cable television at Bissel Village and defendants’ refusal to permit entry on the premises. Plaintiff alleged the cable statute precludes owners and operators of residential properties from denying access. Plaintiff sought a permanent injunction, having also alleged irreparable injury and inadequate remedies at law.

Defendants answered and alleged six affirmative defenses which the court struck on February 21, 1991. The court granted plaintiff’s motion for summary judgment on the amended complaint on April 1, 1991, having determined the cable statute violates neither the United States nor Illinois Constitution. The court permanently enjoined the defendants from precluding plaintiff from installing cable television facilities at Bissel Village. This appeal followed.

The defendants first argue the cable statute violates the fifth and fourteenth amendments of the United States Constitution (U.S. Const., amends. V, XIV) because it allows physical occupation of property prior to a hearing. Defendants contend a permanent physical occupation of land amounts to a “taking” of the property for which the owner is entitled to just compensation. The United States Supreme Court’s decision in Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164, supports defendants’ position regarding compensation. The plaintiff in Loretto, owner of an apartment building, sued the cable television company alleging installation of cable services in the building constituted a “taking” without just compensation under State law. A New York statute provided a landlord could not interfere with cable installation or demand payment from tenants in exchange for permitting the installation. Landlords were also precluded from demanding payment from the cable television company in excess of the amount allowed by the State Commission on Cable Television. The landlord could require the cable company or the tenant to pay for cable installation. The New

York Court of Appeals upheld the statute and concluded there was no “taking.” The Supreme Court disagreed. “[A] minor but permanent physical occupation of an owner’s property authorized by government constitutes a ‘taking’ of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution.” Loretto, 458 U.S. at 421, 73 L. Ed. 2d at 873, 102 S. Ct. at 3168.

The Illinois statute implicitly recognizes cable installation involves a taking, as it provides a procedure for compensating the property owner. If the property owner seeks compensation in excess of $1, he must serve written notice on the cable television franchisee within 20 days of the date on which he was notified of the franchisee’s intent to install cable. The owner then has 30 days to notify the franchisee of the amount of compensation claimed. If the franchisee does not agree to pay the specified amount within a given period of time, the statute provides for a suit by the owner in which a jury may determine just compensation for the decrease in the property’s fair market value due to installation of cable television facilities. Thus, the cable statute does not unconstitutionally permit a taking without just compensation.

In addition to just compensation, defendants claim the constitution requires a hearing before they are deprived of their property. Defendants cite Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983, as support for their argument. The Fuentes case involved challenges to replevin statutes in Florida and Pennsylvania. The plaintiffs purchased consumer goods pursuant to installment contracts. When they defaulted on payments, the merchants went to local sheriffs, who removed the goods from the consumers. The court invalidated these procedures because they did not provide for predeprivation hearings.

“ ‘[A]n individual [must] be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.’ Boddie v. Connecticut [(1971), 401 U.S. 371,] 378-379[, 28 L. Ed. 2d 113, 119, 91 S. Ct. 780, 786] (emphasis in original).” (Fuentes, 407 U.S. at 82, 32 L. Ed. 2d at 571, 92 S. Ct. at 1995.)

The extraordinary situations in which the court has permitted a taking without a prior hearing include collecting internal revenue, meeting the needs of a national war effort, protecting against bank failure and protecting the public from misbranded drugs and contaminated food. (Fuentes, 407 U.S. at 91-92, 32 L. Ed. 2d at 576-77, 92 S. Ct. at 2000.) Defendants argue there are no extraordinary circumstances present in this case which permit a taking before a hearing.

Defendants concede, however, Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895, modified Fuentes. The Louisiana sequestration statute at issue in Mitchell allowed a merchant to sequester goods pending the outcome of a suit alleging default on an installment sales contract by the buyer. The statute set forth various requirements for the merchant to get a writ of sequestration and provided for judicial authorization of the writ prior to execution. Unlike Florida and Pennsylvania consumers, buyers in Louisiana were not at the unsupervised mercy of creditors.

“The Louisiana law provides for judicial control of the process from beginning to end. This control is one of the measures adopted by the State to minimize the risk that the ex parte procedure will lead to a wrongful taking. It is buttressed by the provision that should the writ be dissolved there are ‘damages for the wrongful issuance of a writ’ and for attorney’s fees ‘whether the writ is dissolved on motion or after trial on the merits.’ [Citation.]” (Mitchell, 416 U.S. at 616-17, 40 L. Ed. 2d at 419, 94 S. Ct. at 1904-05.)

The court upheld the statute, even though it did not provide for a predeprivation hearing.

The United States Constitution does not require a predeprivation hearing in this case because the statute adequately protects the property owner’s due process rights. It clearly provides for just compensation and establishes a procedure whereby the property owner may prove his damages and receive more than the statutory amount of compensation. The statute allows the cable franchisee to proceed with cable installation during resolution of the compensation dispute. This presents no constitutional violation, however, as “all that is required is that a ‘ “reasonable, certain and adequate provision for obtaining compensation” ’ exist at the time of the taking. [Citations.]” (Williamson County Regional Planning Comm’n v. Hamilton Bank (1985), 473 U.S. 172, 194, 87 L. Ed. 2d 126, 144, 105 S. Ct. 3108, 3120.) Due process, in the context of a public taking, requires only just compensation, which can be paid after the taking without violating the due process clause. Muscarello v. Village of Hampshire (N.D. Ill. 1986), 644 F. Supp. 1016, 1019.

Defendants next contend the cable statute violates sections 2 and 15 of article I of the Illinois Constitution. (Ill. Const. 1970, art. I, §§2, 15.) Article I, section 2, of the Illinois Constitution of 1970 states: “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” (Ill. Const. 1970, art. I, §2.) Article I, section 15, states: “Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.” (Ill. Const. 1970, art. I, §15.) Defendants contend the cable statute violates these provisions of the State Constitution because it “does not provide for a preliminary judicial determination of just compensation and deposit of that amount, nor does it provide adequate protection for other property that may be damaged in the taking.” The compensation issue has been addressed.

As for the requirement of a hearing to determine just compensation, defendants compare the cable statute to the “Quick-Take” provision of the eminent domain statute (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 103). The “Quick-Take” provision, applicable only to those entities enumerated in section 7 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 103), allows the governmental entity to file a motion, after the petition for condemnation has been filed, requesting the immediate vesting of the title sought. Not less than five days after the filing of the “Quick-Take” motion, the court shall set a date for a hearing on the motion. At the hearing, the court makes a preliminary determination of just compensation. Ill. Rev. Stat. 1989, ch. 110, par. 7 — 104.

In interpreting these statutes and determining their constitutionality, the Illinois Supreme Court stated:

“[T]he Illinois constitution does not prohibit the taking, possession, and use of private property by the State prior to the fixing and payment of compensation, provided of course, that the authorizing statute adequately safeguards the right of the owner of such property to just compensation therefor.” Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill. 2d 537, 547-48, 150 N.E.2d 124, 130.

Defendants argue the cable statute does not adequately protect the landowner’s rights because it requires no judicial intervention and allows the franchisee to proceed with cable installation even while just compensation is disputed. As discussed earlier, however, the statute adequately protects the owner’s right to just compensation as it allows the owner to sue the franchisee if the parties are unable to agree on what constitutes just compensation.

Defendants apparently chose to use the eminent domain analogy because the cable statute allows the municipality to extend its right of eminent domain to the cable television franchisee.

“The municipality may, upon written request by the franchisee of a community antenna television system, exercise its right of eminent domain solely for the purpose of granting an easement right no greater than 8 feet in width, extending no greater than 8 feet from any lot line for the purpose of extending cable across any parcel of property in the manner provided by the law of eminent domain, provided, however, such franchisee deposits with the municipality sufficient security to pay all costs incurred by the municipality in the exercise of its right of eminent domain.” Ill. Rev. Stat. 1989, ch. 24, par. 11 — 42— 11(c).

Like eminent domain, the issue presented by the cable statute is not whether the landowner objects to the taking; his preferences and opinions are irrelevant. Instead, the issue is compensation. In granting a community antenna television system franchise, the municipality sanctions cable television access for its residents and grants permission for installation. The statute permitting such a franchise renders the landowner’s preferences irrelevant by prohibiting interference with cable installation, even during ongoing compensation disputes.

Because the cable statute recognizes the property owner is entitled to just compensation and establishes a procedure by which the owner can enforce a request for compensation, the statute violates neither section 2 nor section 15 of article I of the Illinois Constitution of 1970.

The third issue is whether the cable statute violates article IV, section 13, of the Illinois Constitution. (Ill. Const. 1970, art. IV, §13.) Article IV, section 13, of the Illinois Constitution of 1970 states:

“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” (Ill. Const. 1970, art. IV, §13.)

Special laws “ ‘impose a particular burden or confer a special right, privilege or immunity upon a portion of the people of the State.’ ” (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 109-10, 281 N.E.2d 317, 321, quoting Mathews v. City of Chicago (1930), 342 Ill. 120, 128, 174 N.E. 35, 39; Latham v. Board of Education (1964), 31 Ill. 2d 178, 183, 201 N.E.2d 111, 114.) A general law “is a law that by its terms applies to all who are in a like position, who are ‘similarly situated.’ ” (County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 345, 564 N.E.2d 1170, 1181.)

“[A] law is an unconstitutional special law if there is no rational explanation for why that law cannot be applied to all persons or entities in the State, or if there is no rational explanation for why the general law which applies to all other persons and entities in the State should not also be applied to the persons or entity which the law at issue singles out.” County of Bureau, 139 Ill. 2d at 346, 564 N.E.2d at 1181-82.

Defendants argue the cable statute is a special law because it delegates the power of eminent domain to private corporations. They contend the "Quick-Take” portion of the eminent domain statute (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 103) is a general law and should apply to cable television franchisees seeking to take property for cable installation. Defendants argue as follows:

“Section 11 — 42—11.1(c) is a special law in that all property owners subject to a permanent physical occupation by a third party receive a right to just compensation pursuant to the laws of eminent domain except for those property owners required to give up a portion of their property rights bundle to Community Antenna Television Stations. The Cable Access Statute requires the property owners to fulfill substantial burdens before it provides an opportunity to receive just compensation.
Meanwhile, other property owners whose property is taken under the Eminent Domain Act are not required to fulfill those burdens but instead the burden is placed on those taking the property. The application of Section 11 — 42—11.1(c) to Defendant and all property owners situated similarly as Defendant is improper and the general law of eminent domain clearly could be applied as to Defendant and all individuals similarly situated.
* * *
*** No rational explanation exists why the Illinois Cable Access Statute cannot rely on the eminent domain proceedings when allowing a corporation a permanent physical occupation of another’s property. The statute itself provides such procedure in 11 — 42—11 but ignores such procedure by enacting a special law in 11 — 42—11.1(c). Such failure to apply a general law without a rational explanation for the need for a special law therefore dictates the special law unconstitutional.”

The cable statute is not a special law. The statute treats all municipalities, cable television franchisees and property owners in the same manner; no person or entity is singled out. (County of Bureau, 139 Ill. 2d at 346, 564 N.E.2d at 1181-82.) Nor is the cable statute special legislation because it allows a municipality to grant its right of eminent domain to a cable television franchisee for purposes of ob-taming an easement. The cable statute does not violate article IV, section 13, of the Illinois Constitution of 1970.

Defendants also contend article I, section 15, of the Illinois Constitution of 1970 requires all private property taken for a public use be taken through eminent domain proceedings. Article I, section 15, states: “Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.” (Ill. Const. 1970, art. I, §15.) The defendants cite People ex rel. Gutkneeht v. City of Chicago (1953), 414 Ill. 600, 111 N.E.2d 626. The case involved a challenge to amendments to the Blighted Areas Redevelopment Act of 1947 (Ill. Rev. Stat. 1947, ch. 671/2, pars. 63 through 91). The statute authorized municipalities, in conjunction with the State Housing Board, to identify slum and blighted areas, acquire the properties, and sell them to developers, in an effort to ease the post-war housing shortage. One of the challenges to the statute claimed it deprived owners of property without due process of law. Specifically, plaintiff objected to a provision allowing comparison of the “fair value” of the land to the tax delinquencies accumulated without notice or hearing. The court responded:

“[A]s the act makes clear, ‘fair value’ is relevant only in appraising the extent of tax and special assessment delinquencies, in the course of determining the causes of the unmarketability of an area under consideration. The decision of a condemning body to acquire property by eminent domain is not a taking of the property, and no question of due process is presented. The taking can, of course, only be accomplished by the filing of a petition and the ascertainment and payment of compensation for the property.” (People ex rel. Gutkneeht, 414 Ill. at 616, 111 N.E.2d at 636.)

This case does not support defendants’ argument.

Contrary to defendants’ assertions, the Hlinois Constitution does not require all private property taken for public use be taken through eminent domain proceedings.

Defendants’ fourth issue is based on their misinterpretation of article I, section 15, of the Illinois Constitution of 1970. As discussed earlier, this section does not require all private property taken for public use to be taken through eminent domain proceedings. Defendants, however, persist in this argument and contend the circuit court erred in granting summary judgment for plaintiff because plaintiff failed to show the private property was to be taken for public use.

“Some courts have been reluctant to interfere with a legislative determination of a public purpose absent a ‘clear abuse’ of the legislative power. (Department of Public Works & Buildings v. McNeal (1965), 33 Ill. 2d 248, 252, 211 N.E.2d 266.) Other courts have held that the determination of whether a given use is a public use so that the right of eminent domain may be exercised is a judicial function. (People ex rel. Touhy v. City of Chicago (1946), 394 Ill. 477, 68 N.E.2d 761.) Still other courts have held that what is for the public good and what are public purposes are decided in the first instance by the legislature, which is vested with broad discretion in its determination, but the final determination of whether the use or purpose is within the limits of legislative discretion is a judicial function. Poole v. City of Kankakee (1950), 406 Ill. 521, 94 N.E.2d 416.” Lake Louise Improvement Association v. Multimedia Cablevision of Oak Lawn, Inc. (1987), 157 Ill. App. 3d 713, 715-16, 510 N.E.2d 982, 984.

The Illinois Supreme Court has developed five criteria for determining whether the purpose of the taking is public:

“(1) that it affect a community as distinguished from an individual; (2) that the law control the use to be made of the property; (3) that the title so taken be not invested in a person or corporation as a private property to be used and controlled as private property; and (4) that the public reap the benefit of public possession and use, and that no one exercise control except the municipality.” (Poole v. City of Kankakee (1950), 406 Ill. 521, 527, 94 N.E.2d 416, 419.)

The final criterion states: “Public use requires that all persons must have an equal right to the use and that it must be in common, upon the same terms, however few the number who avail themselves of it.” Department of Public Works & Buildings v. Farina (1963), 29 Ill. 2d 474, 478, 194 N.E.2d 209, 212.

The United States Supreme Court did not decide, in Loretto, whether cable television serves a public purpose.

“The Court of Appeals determined that [the New York statute] serves the legitimate public purpose of ‘rapid development of and maximum penetration by a means of communication which has important educational and community aspects,’ 53 N.Y.2d, at 143-144, 423 N.E.2d, at 329, and thus is within the State’s police power. We have no reason to question that determination.” Loretto, 458 U.S. at 425, 73 L. Ed. 2d at 875-76, 102 S. Ct. at 3170.

In 1973, the Illinois Supreme Court held community antenna television systems were not public utilities within the meaning of “An Act concerning public utilities” (Ill. Rev. Stat. 1971, ch. lll2/3, par. 1 et seq.) and, thus, were not subject to the jurisdiction of the Illinois Commerce Commission (ICC). (Illinois-Indiana Cable Television Association v. Illinois Commerce Comm’n (1973), 55 Ill. 2d 205, 302 N.E.2d 334.) The ICC had determined cable television was a public utility. Among its findings of fact was the conclusion that “ ‘The business of providing cable television and other forms of broadband cable communications is an engagement “for public use” in “the transmission of telegraph or telephone messages within this State” ***.’ ” (Illinois-Indiana Cable Television Association, 55 Ill. 2d at 208, 302 N.E.2d at 335.) The Illinois Supreme Court let stand the ICC’s findings of fact related to “the nature and elements of cable television and its industry” (Illinois-Indiana Cable Television Association, 55 Ill. 2d at 209, 302 N.E.2d at 336), but held the words “telegraph or telephone messages” had to be given their plain and ordinary meanings and, thus, cable television was not a public utility.

Several years later the court decided Gammers v. Marion Cablevision (1976), 64 Ill. 2d 97, 354 N.E.2d 353. The plaintiffs, landowners, sued the cable television company seeking a mandatory injunction and damages. They claimed the company installed an underground television cable and an aboveground television cable box on their property without their consent. The circuit court found the company had encroached on plaintiffs’ property and issued the injunction. The appellate court agreed there was a trespass but reversed the injunction, concluding it was improper. The supreme court agreed the evidence showed the cable was on a portion of plaintiffs’ land subject to a highway easement and agreed they were entitled to compensation. The court affirmed the appellate court’s reversal of the injunction. In dicta, the court stated:

“[Ujnderground installations which are for the benefit of the public at large and which do not impair the use of the highway have been regarded as falling within the highway easement. (Barrows v. City of Sycamore (1894), 150 Ill. 588, 593.) The defendant is not a public utility (Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill. 2d 205), however, and its cable television operations benefit the defendant and its customers, rather than the general public. The reasoning of the Barrows case is thus not directly applicable.” Cammers, 64 Ill. 2d at 103, 354 N.E.2d at 356.

More recently, Lake Louise Improvement Association involved a challenge to the constitutionality of the cable statute. Plaintiffs sued for declaratory judgment. The circuit court granted a preliminary injunction restraining the cable television company from attempting to install cable. The court also found the cable statute (section 11 — 42— 11.1) unconstitutional because it took private property for a private use and failed to provide adequate safeguards for the taking of private property prior to compensation.

The appellate court concluded the evidence presented as to cable television’s provision of educational, civic and political programming “disclosed that the purpose of the proposed taking was a public *** one.” (Lake Louise Improvement Association, 157 Ill. App. 3d at 716, 510 N.E.2d at 985.) The court refused to decide the case on constitutional grounds because there was no evidence as to the amount of damages, if any, to plaintiffs’ property. There was no evidence as to what plaintiffs considered just compensation. “If the ultimate facts show that the installation did not damage the property or the installation, in fact, enhanced the value of the property, there would be no need to determine the constitutional question.” Lake Louise Improvement Association, 157 Ill. App. 3d at 716-17, 510 N.E.2d at 985.

Plaintiff in this case also contends the cable statute serves a public purpose because cable television provides educational, governmental, and community programming. Additionally, because a municipality can tax a cable television company, it is in the municipality’s best interest to allow the cable company to serve as many people in the community as possible. The Illinois Cable Television Association filed an amicus curiae brief supporting plaintiff’s position.

The circuit court did not err in granting summary judgment for plaintiff. The cable statute precludes property owners from interfering with cable installation when it has been requested by tenants. Only compensation is the issue; the statute does not require proof of public use or purpose.

Defendants’ final argument contends the notice plaintiff sent, of its intent to install cable at Bissel Village, was legally insufficient because there was no indemnity agreement between the parties. The cable statute provides, in part: “the cable television franchisee constructing or installing such cable television facilities shall agree to indemnify the owner of such real estate for any damages caused by the installation, operation or removal of such cable television facilities and service.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 42—11.1(b).) The notice served by plaintiff on the defendants stated:

“Section 11 — 42—11.1 requires the cable television franchisee constructing or installing cable television facilities to agree to indemnify the owner of any such residential building or real estate for any damage caused by the installation, operation or removal of such cable television facilities and service. Times Mirror Cable Television of Springfield, Inc. hereby agrees to indemnify the owner as required by Section 11 — 42—11.1.”

The circuit court found “there is no genuine issue of material fact that Plaintiff has given valid notice under the Cable Access Statute of its intent to provide cable television services at Bissel Village Mobile Home Park.”

Defendants argue the phrase “shall agree” requires the parties reach an indemnity agreement as a condition precedent to the installation of cable services. Otherwise, they argue, the statute would have used the phrase “shall indemnify.”

Plaintiff contends defendants’ interpretation of the statute ignores its plain meaning and purpose. Plaintiff asserts the purpose of the cable statute is to allow tenants and occupants access to cable television without delay. Requiring the parties enter an indemnification agreement prior to installation would delay access, a result the legislature did not intend.

The statute required the plaintiff agree to indemnify the defendants for damage caused by installation, operation or removal of cable services. The plaintiff agreed to do so in its letter of intent and thus fulfilled this statutory requirement. The statute does not require the parties enter an indemnity agreement. The circuit court did not err in finding plaintiff provided valid notice.

The order of the Sangamon County circuit court is affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT FORD, JR., Defendant-Appellant.
    Fourth District
    No. 4 — 90—0474
    Opinion filed November 7, 1991.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant was convicted of intentional homicide of an unborn child (the fetal homicide statute) (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1.2) following a bench trial in Champaign County, Illinois. Defendant was found to have stomped or kicked the stomach of his 17-year-old stepdaughter who was 51/2 months pregnant, thereby causing the death of her unborn child. Defendant was sentenced to 20 years’ imprisonment and he now appeals, contending (1) the fetal homicide statute violates the equal protection and due process clauses of the United States Constitution, and (2) the evidence was insufficient to prove him guilty beyond a reasonable doubt of intentional homicide of an unborn child. We affirm.

I. Occurrence Witnesses

Defendant lived with his wife, Mary Marion, and her two daughters, Karonda Marion and Gwendalyn Fabre Jenkins. Karonda testified that on September 17, 1989, she got out of bed around 11 or 12 p.m. At that time, she, her mother, defendant, and a neighbor were present in the home. The neighbor, Lynn Simpson, took her mother to the grocery store. Karonda testified defendant was in a good mood and had not been drinking alcohol. Mary and Simpson returned home and then defendant and Simpson left to go to purchase alcohol. Karonda testified defendant returned home with hard liquor and beer. Defendant drank the alcohol and subsequently his mood changed.

An argument ensued between defendant and Karonda regarding defendant’s treatment of Mary. Karonda began to cry and told her mother she felt sorry for her because of the way defendant treated her. Karonda and defendant began to have words but Mary told Karonda to shut up. Defendant said that he would “kick that bastard out of her (Karonda’s) stomach” and he then asked Simpson to take him away before he killed somebody. Thereafter, Simpson and defendant left.

At approximately 6 p.m., Karonda was in the bathroom getting ready to go out when defendant returned home. Defendant slammed the door as he entered the house and then proceeded into the master bedroom. Karonda testified the next thing she heard was her mother yell “Ow!” Karonda testified she entered the bedroom to defend her mother but denied having any weapon in her hand when she entered the bedroom.

Monica Bradley, Robert Steven Mason, and Michael Harrington were in the master bedroom with Mary and defendant. Karonda testified defendant threatened to slit her throat and kick the baby out of her stomach. Karonda testified the first thing defendant did was kick her and then she felt him grab her and cut her wrist. Karonda fell to the ground as a result of defendant’s kicking her in the stomach. The rest of the people in the room were gathered around Karonda trying to get defendant away from her. Karonda testified she saw a steak knife on the floor, picked it up and stabbed defendant in his chest. After she stabbed him, defendant left the house. Karonda testified defendant kicked her three times in the stomach, and when she fell to the floor, he began stomping on her stomach.

Defendant attempted to reenter the house but Mary refused to let him in. He then went to the back door and burst in swinging a bumper jack. Karonda got a carving knife from the drawer in the kitchen and she testified she intended to kill defendant if she was able to do so. Mary took the knife from Karonda, and then defendant left the house when the police arrived. Karonda first began to feel pain in her stomach at this time. The next thing she remembered was being placed in an ambulance and taken to Mercy Hospital in Champaign. Karonda had a cut on her wrist that had been bandaged by the paramedics.

Karonda testified that while she was in the emergency room at Mercy Hospital the nurses found a fetal heartbeat using an ultrasound machine. Karonda was familiar with this process since her obstetrician had done an ultrasound earlier in her pregnancy. Karonda was also familiar with the sound of the fetal heartbeat as she had heard it before on previous medical visits. She testified the heartbeat was weaker than she had heard it before. She felt the baby kick once while in the emergency room.

Approximately a half hour after being taken into the emergency room, a sonogram was performed on Karonda. After the process was completed, the doctor came into the room and told Karonda there was no fetal heartbeat and that her baby was dead. Karonda was admitted to the hospital, and on September 19 at 5:31 p.m. she gave birth to a dead fetus.

Karonda testified as to an incident which occurred between herself and defendant on August 17, 1989. Karonda testified defendant had been drinking alcohol that day and started an argument with Karonda’s uncle, Arthur Lynn Fuller. Karonda told defendant to leave Fuller alone and defendant threatened to “knock that baby bastard and bust my (Karonda’s) head in.” At the time of this threat, defendant was swinging a pool cue and tapping his hand with it. Karonda told defendant he was not going to kick her and then got a knife out of the kitchen drawer. Defendant ran outside and Karonda followed him. A fight started and defendant twisted the knife out of Karonda’s arm after she had cut him. Defendant then proceeded to “body slam” Karonda to the ground twice. Karonda’s sister, Gwendalyn, then stopped defendant from any further physical contact with Karonda. Karonda denied having any problems with her pregnancy as a result of this incident. She further denied having abdominal pain or vaginal bleeding or discharge. Karonda did not visit her doctor between August 17, 1989, and September 17, 1989. She testified she felt the baby move on various days between August 17 and September 17, 1989, although she testified the baby did not move every day.

On cross-examination, Karonda admitted she quit taking the prenatal vitamins prescribed by her doctor because they made her sick to her stomach; however, she denied she also quit taking her iron pills. As to the August 17, 1989, incident, Karonda testified that after defendant took the first knife away and “body slammed” her to the ground, she ran into the house and got another knife. Karonda reaffirmed she felt the baby kick in the emergency room.

Mary testified she was in the bedroom with Monica Bradley, Robert Steven Mason, and Michael Harrington when defendant returned home on September 17, 1989. Mary and defendant began arguing about the number of people present in the bedroom. Defendant then went crazy and started throwing Mary’s medicine, which was on the dresser, into the garbage. Defendant scooped up all of the medicine on two separate occasions and attempted to throw it away. Mary retrieved it from the trash on both occasions. The third time he attempted to grab the medicine, Mary grabbed his shirt. Defendant was holding a cigarette at the time and he reached out and burned Mary in the chest. Mary cried out in pain and began hitting defendant. Karonda came into the bedroom and told defendant to leave Mary alone. Mary testified Karonda had nothing in her hands when she entered the bedroom.

Mary testified she told Karonda not to come into the room but Karonda came in anyway. Mary and defendant were fighting each other when Karonda entered the room. Mary testified defendant kicked Karonda, causing her to fall into the wall, and then he kicked her again after she had fallen to the floor. Mary then noticed a knife on the floor but denied ever seeing defendant with it. Mary did hear defendant threaten to cut Karonda’s throat. Mary testified she saw Karonda pick the steak knife up from the floor and stab defendant. After Karonda stabbed defendant, he stopped kicking her. Mary testified the knife Karonda used to stab defendant was one of her steak knives that had been left in her bedroom from her dinner the night before. Mary testified she had taken all of the items, including the knife and a dinner plate, off of the dresser in order to clean the dresser top. Mary testified she placed everything back on the dresser except the plate because she planned to take it into the kitchen.

Mary testified defendant left the house and she attempted to keep him from reentering the house by standing in the doorway. Defendant then went to the side door and entered the house swinging a bumper jack. When the police arrived at the house, defendant went outside. Mary went searching for Karonda and found her lying on the steps by the front door. Mary testified Karonda was unconscious at first but then came to complaining of stomach pains.

Mary testified that on August 17, 1989, she saw defendant in the neighbor’s yard yelling that he wanted all of the people in his house to leave. She did not personally witness a fight between defendant and Karonda on that date. Finally, Mary testified she felt Karonda’s baby move between August 17 and September 17, 1989.

Gwendalyn Fabre Jenkins, Karonda’s older sister, testified that on August 17, 1989, Karonda and defendant had a fight over the presence of Fuller in defendant’s house. Gwendalyn testified defendant called Karonda’s child a bastard and also made physical threats to Karonda. Gwendalyn testified defendant went outside and Karonda followed him. She did not recall whether Karonda had a knife in her hand. Gwendalyn saw defendant pick Karonda up and “body slam” her to the ground twice. Gwendalyn then interceded and hit defendant three times to get him off of Karonda. Gwendalyn testified Karonda had no problems with her pregnancy after this incident and Gwendalyn believed everything was normal with Karonda’s pregnancy.

On September 17, 1989, Gwendalyn heard loud talking coming from Mary’s bedroom, and when she entered the bedroom she saw Karonda and defendant fighting. She tried to get Karonda out of the bedroom but Karonda asked Gwendalyn to stay out of it. The next thing Gwendalyn remembered was defendant kicking Karonda and yelling that he was going to kick the baby out of her. Defendant kicked Karonda with such force she flew into the wall and then fell to the floor. Gwendalyn testified she saw defendant stomp on Karonda’s abdomen with his combat boots. Gwendalyn saw a knife on the floor but did not know how it got into the room. She saw Karonda throw her arms in the air and saw defendant move the knife in a cutting motion towards Karonda. Gwendalyn then ran to the neighbor’s house and telephoned the police. When she came back to the house, defendant was locked out of the house. Gwendalyn took Karonda outside and helped her lie down on the ground. Karonda told Gwendalyn she was having abdominal pains. Gwendalyn testified Karonda had a cut on the outside of her left wrist.

Lynn Simpson testified that on September 17, 1989, he, defendant, and Mary got into an argument regarding the history of defendant’s house. Karonda joined in the argument and defendant told her to be quiet. Defendant then left the room to change clothes. Simpson testified that Karonda reached under the couch, pulled out a knife and showed it to him. She allegedly told him she was going to get defendant with the knife. Simpson testified the knife looked like a steak knife and that he told defendant what Karonda had said. Finally, Simpson testified that, on other occasions, Karonda had attacked defendant with sharp objects. Simpson testified he had never seen defendant start a fight with anyone.

Robert Steven Mason testified that on September 17, 1989, he was in Mary Marion’s bedroom with Monica Bradley, Mary, and some others when defendant entered the room. A fight broke out between defendant and Mary, with defendant knocking things off Mary’s dresser. Mason testified that Karonda then entered the room with a knife in her hand. Mason testified Karonda told defendant she was tired of the way he treated her mother and then took a swipe at him with the knife. Mason stated that on her follow-through with the knife, she almost stabbed him instead. Mason testified defendant had not kicked Karonda before she attempted to stab him with the knife. Finally, Mason testified he never saw defendant kick Karonda, nor did he see her fall to the floor.

On cross-examination, Mason admitted defendant burned Mary with a cigarette but did not recall whether she cried out. He also admitted that on September 17, 1989, he was taking several medications that had side effects which caused him to have trouble remembering and concentrating on things.

Monica Bradley testified that on August 17, 1989, after defendant ran outside, Karonda followed him with a knife. Bradley stated defendant did not invite Karonda to come outside. While they were outside, Bradley saw defendant throw Karonda to the ground and then get on top of her to attempt to get the knife away from her. Defendant got the knife away from her and threw it away. Karonda then went inside, changed clothes and came back out with another knife. Again, defendant threw Karonda to the ground and managed to take the knife from her.

Bradley described the events of September 17 as did the other witnesses, except she stated Karonda was not carrying anything when she first entered the master bedroom. Bradley did not see a knife on or near the dresser. She testified that as she was attempting to break up the fight between defendant and Karonda, defendant fell back onto the bed. Karonda managed to break free from whoever was holding her and stab defendant. Bradley did not know where the knife came from. She testified defendant began kicking and swinging after Karonda stabbed him as he was trying to get out of the room. She never specifically saw defendant kick Karonda but testified there was a lot of commotion in the bedroom.

Defendant admitted he was intoxicated on the afternoon of September 17, 1989. He testified that when Simpson dropped him off that evening, he was not in a good mood because he wanted to go to sleep. Defendant testified he began arguing with Mary and pushing stuff from her dresser onto the floor. Defendant was smoking a cigarette and testified he “must have burned her by accident.” Defendant believed Karonda had a knife in her hand when she entered the bedroom. Defendant and Karonda began to argue, either Monica Bradley or Mary pushed defendant onto the bed and then Karonda stabbed him. Defendant denied making any physical contact with Karonda prior to her stabbing him. Defendant testified he threw up his hands and kicked out as he tried to get off the bed and that if he kicked Karonda, it was only because she was going to stab him again.

II. Medical Experts

A. The State’s Experts

Dr. Enid Gilbert, a professor of pediatrics and pathology at the University of Wisconsin, was the first medical expert to testify for the State. Based on an examination of the case file, Dr. Gilbert gave an opinion that the cause of death of the fetus was:

“due to the impact to the abdomen an abruption of the placenta occurred causing massive hemorrhage both behind the placenta, separating the uterus or womb from the placenta, and hemorrhage actually into the placenta. This was a massive hemorrhage which would have precluded normal blood flow to the fetus and would result in the death of the baby.”

Dr. Gilbert testified that People’s exhibit No. 12, a color photograph, depicted the maternal surface of the placenta which is normally attached to the womb or uterus and evidenced a massive hemorrhage to the placenta. Dr. Gilbert testified the blood clot on the placenta was formed within 48 hours of the delivery of the placenta. People’s exhibit No. 13, another color photograph, depicted the fetal skull after the scalp was removed. Dr. Gilbert testified that after fetal death, the brain liquifies, causing the skull bones to overlap. However, she testified that in this case, the skull overlap was minimal and thus death was not present for more than 48 hours. People’s exhibit Nos. 14 and 15, which depicted the fetus’ full body, evidenced skin slippage, a condition that causes the skin to peel within 24 hours of death. She testified the discoloration in the trunk of the fetus could have resulted from the impact of the blow to Karonda’s abdomen. Dr. Gilbert did not place any special significance on the fact that there was no fetal blood found in the mother’s circulation. There was a maternal hemorrhage, which caused the circulation of blood to the fetus to be blocked, which in turn could have resulted in the fetus’ anemic appearance.

On cross-examination, Dr. Gilbert admitted that in her original letter to the investigator on the case, she placed the fetal death 72 hours before delivery. However, she explained that, after reviewing all of the records again, she amended that conclusion to place the time of death of the fetus at 48 hours before delivery. She testified she was aware that the autopsy report showed no evidence of bleeding of the fetus and placenta. In her opinion, the pathologist who performed the autopsy made a mistake and overlooked the hemorrhage to the placenta. She acknowledged the fact that the ultrasound done in the emergency room did not reveal an abruption of the placenta, but explained that since it was done within one hour of the incident, evidence of the abruption might not have been present yet. Dr. Gilbert testified she was aware the autopsy found the cause of death undetermined but she would have reached a different conclusion. Finally, Dr. Gilbert testified that the fact the pathologist who performed the autopsy was able to recognize various tissues and organs {i.e., heart, lungs, kidneys, spleen, and scalp tissues) was “incontrovertible evidence” of death within 48 hours of delivery since, had death occurred at any earlier time, these tissues and organs would have been more decayed and disintegrated.

Dr. Barrett W. Dick testified that on September 20, 1989, he performed an autopsy on the fetus and placenta delivered by Karonda Marion. Dr. Dick testified the findings from the autopsy were that the fetus was decomposed or macerated, pale, and that there were no anatomic lesions of the fetus, fetal surface, or blood vessels of the placenta. Dr. Dick identified People’s exhibit Nos. 14 and 15 as depicting skin slippage around the head of the fetus. He testified that because of the anemic appearance of the fetus, he suspected the fetus had lost its blood. He therefore searched for sources for the blood loss, i.e., from the blood vessels of the umbilical cord or bleeding into the maternal circulation. He concluded “no source of bleeding was noted on examination of the fetus and the placenta and no evidence of fetal maternal hemorrhage.” Dr. Dick testified that this conclusion as to “no source of bleeding on the placenta” was not in reference to the photograph of the placenta.

On cross-examination, Dr. Dick testified he could not be sure whether the placenta showed evidence of an abruption or just maternal bleeding as that conclusion was out of his area of expertise. He stood by his conclusion that the cause of death of the fetus was undetermined with the suggested cause of death as blood loss to the fetus due to the marked paleness of the tissues.

Dr. Dolores Fernandez, a diagnostic radiologist, testified she went to Mercy Hospital on September 17, 1989, at approximately 7:50 to 8 p.m. at the request of the emergency room nurse to determine whether there had been any damage to the placenta of Karonda. The emergency room nurse told Dr. Fernandez the baby was fine since she had heard its heartbeat. Dr. Fernandez and her assistant performed an ultrasound on Karonda for approximately 15 minutes. They concluded there was no fetal heartbeat. She could not, within a reasonable degree of medical certainty, determine the time of death of the fetus due to conflicting findings from the ultrasound. For example, the skull overlapping and evidence of an abnormal amount of fluid in the fetus’ tissue indicated the fetus had been dead for at least 48 hours. On the other hand, there was a normal amount of amniotic fluid within the uterus, fluid in the fetal bladder and fluid in Karonda’s stomach which would not have been present if the fetus had been dead for a long time. The closest approximation Dr. Fernandez could make was that the fetus had not been dead for more than 48 hours.

On cross-examination, Dr. Fernandez admitted the sonogram did not reveal an abruption in the placenta. She qualified that admission by stating that a small tear in the placenta could have been missed and that if there was a suspicion that a tear existed, the normal procedure would be to do another ultrasound hours or even a day later. This would enable the doctor to determine whether in fact a tear existed because the continual bleeding would result in the collection of blood adjacent to the placenta which would be readily apparent on the sonogram. Dr. Fernandez testified she could have missed a small tear that could have later produced a large hemorrhage, but could not have missed a large hemorrhage. Finally, she testified there was no definitive evidence of an abruption of the placenta.

Susan Fifield and Jodi Smalley both testified they were registered nurses employed by Mercy Hospital on September 17, 1989. They each described the procedure performed on Karonda in the emergency room that day wherein, through the use of a Doppler device (a device similar to a transistor radio used to listen to a fetal heartbeat), they heard the heartbeat of Karonda’s fetus. Each had no doubt in her mind that there was a fetal heartbeat between 7 and 7:30 p.m. on September 17, 1989. Irene Ayre testified she was a registered nurse for Mercy Hospital. She delivered Karonda’s fetus on September 19, 1989, at approximately 5:31 p.m. On her chart, she noted the condition of the fetus as macerated with skin peeling.

B. Defendant’s Experts

Dr. Anton J. Dubrick testified that on September 17, 1989, he was employed as an emergency room physician by Mercy Hospital. Dr. Du-brick testified when Karonda arrived at Mercy she had no signs of trauma and was experiencing very minimal pain. She was neither nauseous nor vomiting and had no vaginal bleeding. He did a brief screening exam of Karonda, went to see other patients and then came back to Karonda and did a more thorough exam. Dr. Dubrick had been told by Nurse Smalley that fetal heart tones were present. Dr. Dubrick stated it was not uncommon for the nurse to take a fetal heartbeat, and for the physician not to listen unless there was a situation of doubt. But, it is common for the nurse to ask the physician to confirm the presence or lack thereof of the fetal heartbeat, and he was surprised to learn Nurse Smalley had another nurse confirm the heartbeat rather than himself.

Dr. Dubrick palpated Karonda’s abdomen and found it to be normal and soft. He found Karonda to be emotionally upset but not in pain. He contacted the gynecologist on call, reported that Karonda seemed all right and recommended admitting her overnight for observation. The gynecologist, Dr. Trupin, disagreed with this recommendation and ordered a sonogram. Dr. Dubrick ordered the sonogram and was subsequently told there was no fetal heartbeat. He was very much surprised to hear the fetus was dead because he had been told a fetal heartbeat had been heard earlier and Karonda seemed to be okay. Dr. Dubrick looked at the screen which projected the images of the sonogram but admitted he could not determine anything from the screen because it was out of his field of expertise. Dr. Dubrick testified it is possible to make mistakes when attempting to verify or deny the presence of a fetal heartbeat. Dr. Dubrick believed it was possible that a mistake was made in this case in obtaining a fetal heart tone. This was based on his belief the sonogram showed classic signs of the fetus being dead for some time (i.e., skull overlapping and an edema of the abdominal wall and torso) and the fact that two days later Karonda delivered a macerated, degenerated infant.

On cross-examination, Dr. Dubrick admitted he did not have the ability to determine the significance of several factors present in the fetus, namely the time skin slippage first appears on a dead fetus, the significance of a normal amount of amniotic fluid in the womb, and the significance of a full bladder in the fetus and fluid in the fetus’ stomach.

Dr. Camilla Parham testified she had been a licensed medical doctor for four years and was employed as a family practice physician at the Francis Nelson Community Health Center. Dr. Parham testified Karonda was a prenatal patient of hers and she saw Karonda on two occasions, August 4, 1989, and August 11, 1989. On August 11, 1989, Dr. Parham measured Karonda’s umbilicus which determined the fetus to be 20 weeks old. Dr. Parham testified she prescribed prenatal vitamins for Karonda. Finally, Dr. Parham testified Karonda’s initial blood count showed her to be anemic, which is often found in adolescent prenatal patients.

The final doctor to testify in this matter was Dr. William Matviuw, a physician engaged in private practice in the field of obstetrics and gynecology. Dr. Matviuw had an opportunity to review the complete medical record in this case. Based on this review, he concluded there was no evidence of a crushing injury to Karonda’s uterus. Dr. Matviuw further concluded five things from the sonogram performed by Dr. Fernandez on Karonda in the emergency room on September 17. First, he found the sonogram indicated the fetus was dead. Second, he noted the collapse of the skull, which never occurs less than two weeks after death. Third, he concluded there was swelling on the head and abdominal skin which was caused by fluid coming through the skin after death. This usually occurs no less than one or two weeks after death. Dr. Matviuw estimated the fetus was approximately 20.3 weeks old. Last, Dr. Matviuw found no evidence of an abruption of the placenta. If there was a sudden abruption, Dr. Matviuw testified the ultrasound would “clearly show” the separation and the forming of a blood clot. Dr. Matviuw placed no significance on the fact that there was fluid in the fetus’ bladder. He testified he researched that fact himself and spoke to three ultrasonographers who believed there was no significance to that fact. Dr. Matviuw testified the brownish liquid expelled prior to delivery indicated the fetus had been decomposing in its own fluid for two to three weeks. Dr. Matviuw testified if there was an abruption of the placenta, huge amounts of blood clots would be expelled with the delivery of the placenta, evidencing maternal hemorrhaging. He noted the lack of such hemorrhaging when Karonda delivered the fetus and placenta.

Dr. Matviuw examined the placenta photograph and testified he was absolutely sure there was no abruption on the placenta. Rather, he attributed the dark color of the blood as evidencing a placenta that had been dead or dying for a while. He testified it was impossible to make any conclusions about the overlap of the skull depicted in People’s exhibit No. 13 because of the way the skull was being held.

Dr. Matviuw testified if a woman who was five months pregnant sustained a blow to her abdomen which caused an abruption of the placenta, the woman would feel pain in her uterus and there would be blood clots at the time of delivery. He testified there can be mistakes made in the use of a Doppler device when determining whether a fetal heart tone exists. Last, Dr. Matviuw stated he was absolutely sure the fetus had died several weeks before Karonda was admitted to the hospital. He was equally sure that the trauma which occurred to Karonda on September 17, 1989, could be excluded as a cause of death of the fetus.

On cross-examination, Dr. Matviuw testified that during his residency in 1967 or 1968, he had six months of training in pathology. He admitted it had been a few years since the last time he determined the time of death of a fetus. Dr. Matviuw had only conducted a few autopsies, approximately 20 or 25 years ago. Only once or twice a year does he have occasion to review any pathology reports on dead fetuses.

Defendant was found guilty of causing the death of the unborn child of Karonda Marion and was subsequently sentenced to a term of 20 years’ imprisonment. Defendant now brings this appeal raising both constitutional and evidentiary issues.

III. Analysis

In People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203, defendant was convicted of the murder of an unborn fetus. Defendant beat his girlfriend with a broomstick, thereby causing her death and the death of her 81/2-month-old fetus. There was no separate feticide statute and defendant was convicted of the murder of the fetus under the murder statute. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a).) The supreme court reversed as to the murder of the fetus. (Greer, 79 Ill. 2d at 124, 402 N.E.2d at 213.) The court looked to the common law since the legislative comments indicated the murder statute codified the common law. Under the common law, the killing of a fetus was not murder unless the fetus was born alive and subsequently died as a result of the injuries previously sustained. (Greer, 79 Ill. 2d at 111, 402 N.E.2d at 207.) The court noted several jurisdictions which still subscribed to this “born alive” rule. Still other jurisdictions had enacted specific feticide statutes. However, the court noted no jurisdiction, in the absence of such a feticide statute, had held that the killing of a fetus is murder unless the fetus is born alive and then dies. (Greer, 79 Ill. 2d at 111, 402 N.E.2d at 207.) Therefore, the court concluded, since the legislature had not acted to specifically include the unborn within the potential victims of homicide nor acted to create a separate feticide statute, it could not create such an offense. The court held the taking of the life of a fetus was not murder unless the fetus was born alive and subsequently expired from the injuries inflicted. Greer, 79 Ill. 2d at 116, 402 N.E.2d at 209.

In response to the Greer decision, the legislature enacted a feticide statute in 1981, Public Act 82 — 303, effective August 21, 1981 (1981 Ill. Laws 1676). (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1.1.) First, the statute required that the actor knew or should have reasonably known that the mother was pregnant. Second, the statute required that the actor either attempted or committed the felony against the mother or acted in a way which evidenced an intent to cause death or great bodily harm to the mother. Thus, the rationale behind the statute was to “offer some assurances to pregnant mothers, that they can expect to carry that child full term without fear of aggravated assault *** resulting in the loss of that child.” (82d Ill. Gen. Assem., Senate Proceedings, May 19, 1981, at 198 (statements of Senator Thomas) (debates on Senate Bill 192).) Most importantly, the statute required that the fetus “to have been capable, at the time of its death, of sustained life outside of the mother’s womb with or without life support equipment” and such capacity had to be proved beyond a reasonable doubt. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1.1(b).) The statute did not criminalize such acts unless the actor knew, or reasonably should have known under all of the circumstances, that the mother was pregnant; nor those intended to hurt the fetus as opposed to the mother. Moreover, the statute had a viability requirement and did not criminalize acts against nonviable fetuses.

Thereafter, in 1986, the legislature repealed the 1981 feticide statute (Pub. Act 84-1414, §2, eff. Sept. 19, 1986 (1986 Ill. Laws 3511, 3514)) and enacted various other provisions criminalizing acts against unborn children. (Pub. Act 84 — 1414, §1, eff. Sept. 19, 1986 (1986 Ill. Laws 3511, 3514).) Five separate offenses were created, including (1) intentional homicide of an unborn child (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.2); (2) voluntary manslaughter of an unborn child (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.1); (3) involuntary manslaughter and reckless homicide of an unborn child (Ill. Rev. Stat. 1987, ch. 38, par. 9— 3.2); (4) battery of an unborn child (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3.1); and (5) aggravated battery of an unborn child (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.4). Sections 9 — 1.2(a)(2) and (a)(3) of the fetal homicide statute, of which defendant was convicted, provide:

“A person commits the offense of intentional homicide of an unborn child if, in performing acts which cause the death of an unborn child, he without lawful justification:
(1) ***; or
(2) he knew that his acts created a strong probability of death or great bodily harm to the pregnant woman or her unborn child; and
(3) he knew that the woman was pregnant.” (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1.2(a)(2), (a)(3).)

Section 9 — 1.2(b)(1) of this statute defines an “unborn child” as “any individual of the human species from fertilization until birth.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.2(b)(1).) Thus, the legislature has eliminated any viability requirement as well as the “born alive” rule. The statute also crimnializes acts directed against the unborn child.

Defendant first contends the fetal homicide statute violates the equal protection clause of the United States Constitution because it fails to distinguish between viable and nonviable fetuses.

Defendant argues that under Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, a woman can destroy her nonviable fetus without incurring criminal penalties and has an absolute right to an abortion within the first trimester. Defendant argues by contrast that, if he destroys a nonviable fetus, he faces severe criminal penalties. Thus, he appears to claim he and a pregnant woman are similarly situated persons being treated dissimilarly, thus amounting to a violation of the equal protection clause of the United States Constitution.

An identical argument was made by the defendant in State v. Merrill (Minn. 1990), 450 N.W.2d 318. There, defendant shot and killed a woman and her 27- or 28-day-old embryo. The statute in question followed the Minnesota State murder statute except that the words “unborn child” were substituted for the terms “human being” and “person.” “Unborn child” was defined as “the unborn offspring of a human being conceived, but not yet born.” (Merrill, 450 N.W.2d at 320-21.) Defendant was convicted of murder of the embryo and subsequently appealed, contending the statute violated the equal protection clause because it failed to distinguish between viable and nonviable fetuses. In rejecting this argument, the Minnesota Supreme Court noted that a pregnant woman who chooses to have an abortion and the defendant who assaults a pregnant woman causing the death of her fetus are not similarly situated. A woman’s choice to terminate her pregnancy is based on her constitutionally protected right to privacy, which encompasses her decision whether to continue or terminate her pregnancy. The court stated, “Roe v. Wade protects the woman’s right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.” (Merrill, 450 N.W.2d at 322.) The court went on to note that the court in Roe had found the State “ ‘has still another important and legitimate interest in protecting the potentiality of human life.’ ” (Emphasis in original.) (Merrill, 450 N.W.2d at 322, quoting Roe, 410 U.S. at 162, 35 L. Ed. 2d at 182, 93 S. Ct. at 731.) The court found the fetal homicide statute sought to protect the potentiality of human life but did so without impinging on the woman’s constitutional right to privacy. The court, therefore, concluded:

“The state’s interest in protecting the ‘potentiality of human life’ includes protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protects, too, the woman’s interest in her unborn child and her right to decide whether it shall be carried in útero. The interest of a criminal assailant in terminating a woman’s pregnancy does not outweigh the woman’s right to continue the pregnancy. In this context, the viability of the fetus is ‘simply immaterial’ to an equal protection challenge to the feticide statute.” Merrill, 450 N.W.2d at 322.

Clearly, a pregnant woman who chooses to terminate her pregnancy and the defendant who assaults a pregnant woman, causing the death of her fetus, are not similarly situated. A woman consents to the abortion and has the absolute right, at least during the first trimester of the pregnancy, to choose to terminate the pregnancy. A woman has a privacy interest in terminating her pregnancy; however, defendant has no such interest. The statute simply protects the mother and the unborn child from the intentional wrongdoing of a third party. The legislature has chosen to punish this third-party conduct by imposing criminal liability.

A two-step analysis is utilized to determine whether a legislative classification deprives individuals of equal protection. The court must first determine the proper level of scrutiny to be applied to the challenged classification. When the statute under consideration affects a fundamental right, or discriminates against a suspect class, courts will apply a strict scrutiny test and only uphold it if it serves a compelling State interest. If neither a fundamental right nor a suspect class is affected by this statute, a rational basis test is used. Under this analysis, a statutory classification must bear a rational relationship to a valid legislative purpose. The classification created by the statute will only be declared violative of the equal protection clause if based on reasons totally unrelated to the pursuit of a legitimate State goal. (People v. Esposito (1988), 121 Ill. 2d 491, 499-500, 521 N.E.2d 873, 876-77.) The equal protection clauses of the United States and Illinois Constitutions do not prohibit the General Assembly from enacting legislation which affects different classes of persons differently. Esposito, 121 Ill. 2d at 500-01, 521 N.E.2d at 877.

Under an equal protection analysis, the fetal homicide statute neither affects a fundamental right nor does it discriminate against a suspect class. Therefore, since no protectable interest of defendant is affected by the statute, there need only be a rational basis for the statute to be constitutional. The statute must bear a rational relation to a valid legislative purpose to be constitutional. The United States Supreme Court has stated a State does have an “important and legitimate interest in protecting the potentiality of human life.” (Roe, 410 U.S. at 162, 35 L. Ed. 2d at 182, 93 S. Ct. at 731.) Thus, there is a valid legislative purpose in protecting the potentiality of human life. The classifications created by the statute (i.e., acts of pregnant women or in certain medical practices, as distinct from acts of third parties which fall within the statutory proscriptions) must, and do, bear a rational relationship to this valid legislative purpose. The imposition of criminal penalties on those who commit acts against unborn children protects the potentiality of life. By imposing severe penalties for this crime, others will be deterred from committing similar crimes, which in turn protects potential human life. The legislature could have rationally concluded that by imposing criminal penalties on defendants for this type of conduct, the valid State interest in protecting the potentiality of human life would be furthered by the statute. Therefore, the fetal homicide statute does not violate the equal protection clause of the United States Constitution.

Defendant next argues the fetal homicide statute is unconstitutionally vague because the phrase “caused the death” is “fraught with uncertainty and ambiguity and in many instances would be incapable of objective measurement in dealing with nonviable embryos at an early stage.” Defendant contends that the absence of statutory definitions of when “life” begins and “death” occurs will result in the trier of fact applying its subjective religious, philosophical, and political views to define those terms, thereby leading to arbitrary and discriminatory enforcement of the statute.

The State asserts that this court need not address the question of whether the statute is unconstitutionally vague for failing to define life and death because defendant lacks standing to raise that issue. The State maintains defendant lacks standing because the medical evidence established the fetus was anywhere from 20.3 to 24 weeks gestational age and had been alive in Karonda’s uterus. Thus, this case clearly involved a live fetus that subsequently expired. The State further contends that if this court chooses to proceed to the merits of defendant’s claim, the statute is not unconstitutionally vague because it can be applied in a valid manner.

A party who would attack a statute as unconstitutional must bring himself within the class as to whom the law is unconstitutional. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) There, defendant challenged the feticide statute of 1981 as unconstitutionally vague because it failed to adequately define at what stage culpability was triggered. Because that statute required the fetus be capable of sustaining life outside the womb before a defendant could be convicted of murder, the defendant argued the shifting medical opinion as to that point would deny a person of ordinary intelligence fair notice that the conduct was forbidden. The supreme court held the defendant lacked standing because the medical evidence established the pregnant woman was four days past her due date and in the early stages of labor. Because the fetus was obviously capable of sustaining life outside of the womb, defendant was not in a class of offenders who could challenge the lack of statutory definitions. Shum, 117 Ill. 2d at 358, 512 N.E.2d at 1199.

Similarly, here, although there was conflicting evidence as to the time and cause of death of the fetus, the trial court found the fetus was alive in the uterus at one point prior to defendant’s attack. Two nurses testified they heard fetal heart tones in the emergency room. Karonda testified she felt the baby kick in the emergency room prior to the sonogram. She also testified, as did her mother and her sister, that the fetus moved between August 17 and September 17, 1989. Since there was evidence that the fetus was alive and then expired after defendant’s attack, defendant has no standing to challenge the definitions of life and death in the statute.

Where a due process vagueness challenge is raised and the first amendment is not involved, two requirements must be fulfilled. First, the statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful. Second, the statute must provide standards, so as to avoid arbitrary and discriminatory enforcement in application by police officers, judges and juries. (People v. O’Donnell (1987), 116 Ill. 2d 517, 508 N.E.2d 1066.) Criminal statutes are inherently limited to words as their medium. For this reason, the impossible burden of mathematical certainty is neither expected nor imposed by either the Federal or State Constitution. When deciding a vagueness question, a court will assign the words of the statute their ordinary and popularly understood meaning unless there exists a legislative intent to the contrary. People v. Lowe (1990), 202 Ill. App. 3d 648, 560 N.E.2d 438.

In Merrill, the defendant argued that since the statute required the death of the embryo, a determination must have been made that the embryo was alive previously. This in turn raised the question of when “life” begins as well as when “death” occurs. The Minnesota Supreme Court found the statute did not raise the issue of when life as a human person begins. The statute only required the State to prove that the embryo or fetus was once living and then no longer had life. It was not necessary to prove that the living organism in the mother’s womb, whether an embryo or a fetus, was a person or human being. The court noted that people have vastly different views on whether an embryo or a fetus is a human being or a person and at what stage the embryo or fetus attains “personhood.” The court further noted that these questions were entirely irrelevant to the criminal liability under the statute. The statute only required proof that the genetically human embryo be a living organism and that it was growing into a human being. Death then occurs when the embryo no longer has the properties of life. Merrill, 450 N.W.2d at 324.

The same rationale leads us to conclude the fetal homicide statute here is constitutional. Our statute defines “unborn child” as “any individual of the human species from fertilization until birth.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.2(b)(1).) It is unnecessary to prove the unborn child is a person or human being. The statute only requires proof that, whatever the entity within the mother’s womb is called, it had life and, because of the acts of the defendant, it no longer does. The name given to that entity is irrelevant to the liability under the statute. The trier of fact will only be asked to determine whether the particular entity, whether an embryo, fetus, person, or human being, once had life and, because of the acts of the defendant, no longer does.

The challenger of a statute must demonstrate that the law is impermissibly vague in all its applications (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 497, 71 L. Ed. 2d 362, 371, 102 S. Ct. 1186, 1193) and that the statute could never be applied in a valid manner (United States v. Salerno (1987), 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100). If a law is susceptible of a reasonable interpretation which supports the constitutionality, the court must accord the law that meaning. (United States v. National Dairy Products Corp. (1963), 372 U.S. 29, 32, 9 L. Ed. 2d 561, 565, 83 S. Ct. 594, 598.) The trier of fact need not decide whether the entity within the mother’s womb is a person or human being, but only that it once had life which was snuffed out by the acts of the defendant. This is a reasonable interpretation of the law. Thus, the statute wall not be applied in an arbitrary or discriminatory manner and therefore does not violate the due process clause of the United States Constitution.

Defendant’s final argument is that he was not proved guilty beyond a reasonable doubt of intentional homicide of an unborn child because there was insufficient proof that (1) he had the criminal intent to cause the death of the fetus, and (2) the fetus was alive on September 17,1989.

The proper standard when reviewing a sufficiency of the evidence question is whether, after viewing the evidence in a 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, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) The evidence in this case was sufficient to prove beyond a reasonable doubt that defendant knew Karonda was pregnant, had the requisite criminal intent to cause the death of her unborn child, and that the fetus was alive prior to his actions on September 17 and thereafter expired.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

Affirmed.

GREEN and KNECHT, JJ., concur.