FIFTH DIVISION

No. 1-99-1609

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff-Appellee,

	v.

DAVID SERGEANT,

		Defendant-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Edward Fiala,

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Defendant, David Sergeant, was charged by indictment with multiple counts of murder, home invasion and armed robbery. 

Following a jury trial, where defendant and Dedric Hentz (co-

defendant) were simultaneously tried by separate juries, defendant

was found guilty of murder, home invasion and armed robbery.

Defendant was sentenced to a term of 60 years' imprisonment for

murder, 30 years for home invasion to run concurrently and 30 years

for armed robbery to run consecutively.  Defendant now timely

appeals.

	On appeal, defendant argues that; (1) the trial court admitted

inadmissible hearsay; (2) he was denied effective assistance of

counsel; and (3) his sentence for armed robbery should be modified

to run concurrently because the armed robbery did not result in

severe bodily injury, or, alternatively, because it violates

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

	For the following reasons, we affirm defendant's conviction and affirm his sentence for first degree murder, modify his

sentence for armed robbery to run concurrently, and remand to the

trial court to enter a consecutive sentence on the home invasion

conviction.

I. BACKGROUND

	At the defendant's trial, Assistant State's Attorney Mike

Rogers testified that in October of 1995, he became involved in the

investigation of the homicide of Scott Tisdale.  Rogers stated that

upon belief that defendant was involved in this case, he went to

the Indiana Department of Corrections' Regional Diagnostic Center

in Plainfield, Indiana, on October 30, 1996, to interview the

defendant.  Rogers testified that he apprized defendant of his

Miranda rights.  Rogers testified that defendant agreed to talk to

him and he wrote out defendant's statement.  The statement included

the following information:

	Defendant explained that one of his co-defendants

introduced him to Loracio Jennings.  Defendant stated

that Jennings was the head of a home invasion crew that

he intended to join.  Defendant was informed that

everything that he and the crew took out of a "lick" or

"job" was to be brought to Jennings.  Defendant stated

that on October 6, 1995 the crew met at Jennings

apartment and planned two "licks" for that evening.  The

first "lick" was supposed to be at 73rd and South Shore Drive, the second was planned for 93rd and Jeffrey. 

Defendant stated that he was told that at the second

"lick" he or another man would knock on the door and

pretend they were buying dope, and then just go in with

a Tech 9 weapon, while two of the co-defendants would tie

the people up.  Defendant stated that after arriving at

the first "lick", the crew was unable to get into the

apartment and it was called off.  The crew then went to

93rd and Jeffrey.  When defendant and the two men went to

the door, the victim opened the door and defendant backed

him into the house with a Tech 9.  The victim was told to

get down on the ground and Joiner tied him up.  At this

point defendant stated that an old man came up the stairs

and Joiner tied him up as well.  Defendant stated that he

guarded the two men while the others searched the house. 

Defendant stated that Hentz then took the Tech 9 while

defendant went to search the house.  During his search

defendant found a loaded pump shotgun under a bed. 

Defendant stated that he ran downstairs and out to the

back yard yelling "I found a gun, I found a gun".  At

this point defendant said he saw the victim and Hentz

"tussling" over the Tech 9 so he hit the victim with the

butt part of the shotgun.  Defendant said as they

struggled for the weapons, Hentz grabbed the shotgun and

he grabbed the Tech 9.  Defendant stated that Hentz then poked the victim with the shotgun and the gun went off

twice.  The victim grabbed his side.  Defendant stated

that he and Hentz ran to the car and proceeded back to

Jennings apartment.  Defendant got 10-15 bags of crack

for the job.

Rogers further testified that the defendant reviewed the statement,

made corrections, initialed these corrections and signed the

statement.  At the end of the statement defendant acknowledged that

initially he had said he didn't know anything about "jobs" and

"licks," but he figured that Jennings was going to "hang him out"

and he did not want to "go down" alone. 

	Lori Bethany testified that during October 1995 she was the

girlfriend of Michael Perkins.  She stated that on October 6, 1995,

she and Perkins went to Loracio Jennings' apartment at around 6

p.m.  Bethany testified that the defendant, codefendant Derridrick

Hentz, Michael Joiner, Loracio Jennings and Jerry were all present

at the apartment that night.  Bethany testified that Perkins

instructed her to go into the kitchen with Jerry while Perkins,

defendant, Hentz, Joiner and Jennings all went into Jennings'

bedroom, where they remained for 15 minutes. 

	Bethany testified that when they left the apartment, she,

Perkins and Jennings got into a Blazer while defendant, Hentz and

Joiner got into a white Buick.  The cars drove to around 77th or

78th and South Shore Drive.  She was instructed to wait in the car

while the men all got out of the cars and went into the building.  After 10 minutes, the men got back into the cars and proceeded to

93rd and Jeffrey.  Bethany testified during direct and cross-

examination that she never inquired as to where they were going or

why.  When they arrived, the Buick pulled up next to the Blazer and

Jennings handed money to someone in that car.  Bethany stated that

the three men in the Buick exited the car and went toward 9320 S.

Jeffrey.  She did not actually see the men enter the house because

the Blazer she was in went around the block.  Bethany testified

that the Blazer parked one block away, where they could see the

white Buick.  Shortly after, Bethany heard two gunshots coming from

the area of 93rd and Jeffrey.  Bethany saw defendant, Hentz, and

Joiner come running from an alley to the Buick.  At that point the

Blazer she was riding in began to drive away.  Both cars returned

to Jennings' apartment. 

	At Jennings' apartment, Bethany was again instructed to go

into the kitchen while defendant, Jennings, Perkins, Joiner and

Hentz went into the bedroom and shut the door.  After the men

exited the bedroom, approximately 10 minutes later, they began to

smoke cocaine.  When Bethany inquired as to where the drugs had

come from, Hentz replied "from the move."  Defendant was not

present for this statement.  Bethany testified that she understood

this to mean "the move that just transpired."  Bethany stated that

she and Perkins then left Jennings' apartment and stayed at a motel

for the evening.  On direct examination Bethany testified that

after having a conversation with Perkins at the motel she believed a robbery had occurred at 9320 S. Jeffrey.  

	Bethany testified that the first time she spoke with the

police was on the evening of October 10, 1995, when Detectives

William Foster and Ed O'Boyle arrived at her house.  Bethany stated

Perkins had just pulled up to her house when the detectives

arrived.  Bethany testified that she went to Area 2 with the

officers to tell them what she knew.  The detectives also took

Perkins to Area 2.  Bethany also stated that she accompanied the

officers to point out the location of Jennings' apartment at 68th

and Clyde.  On the way back from the apartment, Bethany saw Hentz

walking westbound on 67th Street and she pointed him out to the

officers.

	Bethany was taken back to Area 2, where she provided a written

statement at approximately 5 p.m. on October 11, 1995.  Bethany

remained at Area 2 until the morning of October 12, 1995, when she

testified before the grand jury.  On cross-examination, Bethany

admitted that during the month of October 1995 she was a frequent

drug user and Perkins was her drug supplier. 

	Adrienne Segovia, a forensic pathologist, testified that on

October 7, 1995, she performed an autopsy on Scott Tisdale. 

Segovia concluded after her examination that Tisdale died as a

result of a close-range shotgun wound to the abdomen.  

	 Detective William Foster testified that on October 6, 1995,

at approximately 8 p.m., he received a call on his radio that a man

was shot at 9320 South Jeffrey and proceeded to the scene.  While  canvassing the neighborhood, Foster received the names Loracio Polk

and Perkins from Larry Williams.  Foster later learned that the two

men were Loracio Jennings and Michael Perkins.  Foster testified

that he was  unable to locate these men on the night of the

incident.  

	Foster testified that on October 9, 1995, he learned that

Perkins had a girlfriend, Lori Bethany, who lived at 11717 Longwood

Drive.  Late the next evening, Foster located Perkins and Bethany

at Bethany's residence and brought them both to Area 2.  Later,

Bethany accompanied Foster to point out Jennings' apartment. 

Foster testified that although they were unable to locate Jennings

that night, Bethany pointed out Hentz on a sidewalk on 67th Street. 

At that point Hentz was taken into custody and Bethany was taken

back to Area 2.

      Finally, the State called James Tisdale.  Tisdale testified

that on October 6, 1995, he lived at his home at 9320 S. Jeffrey

with his son, Scott Tisdale.  Tisdale stated that on that evening

at around 8 p.m. he was downstairs watching television in the lower

"rec room" when he heard a commotion at the top of the stairs.  He

heard a voice say that it was the police and to come upstairs. 

When Tisdale was at the stairs, he saw an arm holding a machine

pistol.  He walked up the stairs and was tied up and forced to lie

on the floor.  Tisdale stated that he saw his son also lying on the

floor.  Tisdale admitted that it was dark and he could not see the

face of the man with the machine pistol.  Tisdale did state that he saw a man standing over his son holding a bat and wearing a long

dark coat.  Tisdale identified the defendant in court as the man

with the bat.

	Tisdale testified that after a few moments defendant went out

of his sight, he heard people upstairs, then someone took his son

out of the room.  Tisdale stated that someone came up behind him

and took his gold chain from around his neck.  He then heard

someone yelling that they found a shotgun.  He then heard the back

door, which leads out to the garage, open.  A few minutes later

Tisdale heard gun-shots coming from the direction of the garage. 

He also heard his son grunt.  After hearing people run out of the

house, Tisdale untied himself and ran out the back door where he

saw his son lying face down on the sidewalk.

	Tisdale testified that on October 25, 1996, he was shown a

series of photographs and he recognized one of the photographs as

being that of the man who stood over his son with the bat.  Tisdale

identified defendant in court as the man in the photograph. 

Tisdale testified that on April 23, 1997, he went to Area 2 and

viewed a lineup where he recognized the man who stood over his son

with the bat.  Tisdale identified defendant in court as the man he

picked out of the lineup.  

	Anthony Miles testified for the defense that he had known 

defendant for over 12 years.  Miles stated that defendant would

visit and often stay at his home for a few days at a time to assist

him because he was disabled.  Miles stated that on October 6, 1995, defendant came to stay with him at 66th and Ingleside.  Miles

stated that it was the middle of the night when defendant arrived

but he did not know the exact time.  Miles stated that defendant

stayed a few days.  

	Defendant then took the stand.  Defendant testified that on

October 6, 1995, he went to Anthony Miles' house at around 6:30

p.m. and stayed there all weekend.  Defendant admitted that he was

convicted of felonies in 1992 and 1996.  Defendant further

testified that on October 30, 1996, he was incarcerated at the

Regional Diagnostic Center and that Assistant State's Attorney

Rogers and two detectives came to see him there.  Defendant

testified that the officers inquired about a shooting and he told

them he did not know anything about it.  He stated that while the

officers continued to question him, Rogers was writing something. 

Defendant testified that he continued to tell the police that he

didn't know anything.  Defendant stated that Rogers told him that

if he helped finger Jennings for conspiracy nothing would happen to

him.  On cross-examination defendant admitted to knowing Jennings,

Hentz, Perkins and Joiner.  Defendant denied ever hearing the term

"lick" or "job."  He admitted that he signed the statement but

denied having read it.  

	After closing arguments, the jury found defendant guilty of

the first degree murder of Scott Tisdale, home invasion with Scott

Tisdale as the victim, home invasion with James Tisdale as the

victim, and the armed robbery of James Tisdale.  The court sentenced  defendant to 60 years in prison for murder, 30 years 

for armed robbery to run consecutively and 30 years on the home

invasion counts to run concurrently, which the court "merged."

II. ANALYSIS

A.  HEARSAY

	Defendant first argues that he was denied a fair trial where

the court improperly allowed the hearsay testimony of Bethany. 

Specifically, defendant points to the following exchanges:

	"Q: Now after you saw those individuals smoke their packets,

did you ask any of them any questions about where they got the

narcotics?

	A: Yes I did.

	Q: Who did you ask?

	A: I remember asking Dedric.

	Q: And did Dedric provide a response?

	A: He said they got it from a move.

	Q: When he said move, what did you understand that to mean?

	A: The move that just transpired."

And, later during the examination:

	"Q: Did you have conversation [with Perkins], don't tell

me what he said: Did you have a conversation?

	A: I'm sorry. I had a conversation.

	Q: After having the conversation, what did you beleivebelieve

transpired at that house?

	A: I believed that a robbvery ahad transpired at theat house."

Defendant maintains that the elicited testimony was hearsay because

it was offered to prove the State's theory that defendant was

involved in the home invasion.  

	Defendant failed to properly preserve this issue for appeal. 

We hold that the defendant has waived this issue as the defendant

failed to object to the comments at trial and the issue was not

included in his posttrial motion.  People v. Parker, 311 Ill. App. 3d 80, 91, 724 N.E.2d 203 (1999), citing People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124 (1988).  The waiver rule serves an important purpose because a timely objection will allow the circuit

court to correct any errors and "a party who fails to object cannot

obtain the advantage of receiving a reversal by failing to act."

People v. Reid, 136 Ill. 2d 27, 38, 554 N.E.2d 174 (1990).

	Even if we considered defendant's argument that the statements were improperly admitted  hearsay, any error in this regard was

harmless.  "This court has previously stated that the admission of hearsay is not reversible error if there is no reasonable

probability that the jury would have acquitted the defendant if the

hearsay testimony had been excluded, such as where properly

admitted evidence proves the same matter or there is overwhelming

evidence of the defendant's guilt."  People v. Rodriguez, 291 Ill. App. 3d 55, 61, 684 N.E.2d 128 (1997).    

	The evidence in this case is overwhelming.  Defendant

confessed to his involvement in the armed robbery and home invasion in a written statement.  Lori Bethany testified to being with the

defendant at the address where the murder and armed robbery

occurred that evening.  James Tisdale identified the defendant as

one of the invaders from a photograph, in a lineup and in court. 

Defendant's apparent alibi witness testified that defendant came to

his house on October 6, 1995, but he could not remember at what

time.  When defendant took the stand he testified that while he

signed and initialed every page of the statement he did not read

any of it.  Additionally, the evidence that defendant complains of

was introduced to the jury through properly admitted evidence. 

Here, James Tisdale testified that an armed robbery occurred and

defendant confessed that there was an armed robbery. Therefore,

even if the statements were improperly admitted, their effect on

the jury was minimal in light of the overwhelming evidence

supporting defendant's conviction. 

B.  INEFFECTIVE ASSISTANCE OF COUNSEL

	Defendant claims that he was denied effective assistance of

counsel where counsel questioned the defendant about a felony

conviction after the trial court had barred its admission. 

Specifically, defendant maintains that after successfully moving to

bar the admission of defendant's felony conviction in 1992, counsel

opened the door for the State to introduce a certified copy of this

conviction.  Defendant alleges the following exchange between

defense counsel and himself allowed the jury to doubt his credibility:

	"Q. Now, sir, as you sit here today have you ever been

convicted of a crime?                                   

A. Yes, I have.                                         

Q. And in 1992 were you convicted of a felony?          

A. Yes, I was.                                          

Q. 1994 were you convicted of a felony?                 

A. No.                                                  

Q. Strike that. 1994 were you convicted of a felony?    

A. That is the same one from 1992.  That's the same case. 

Q. 1996 conviction for a felony?                        

A. Yes.                                                 

Q. Two convictions for felonies?                        

A. Yes."

	In reviewing a claim for ineffective assistance of counsel, we

must inquire whether defense counsel's performance was deficient

and whether any deficiencies prejudiced defendant.  Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 693, 104 S. Ct. 2052, 2064 (1984).  Defense counsel's assistance was ineffective if

the representation fell below an objective standard of

reasonableness and if there is a reasonable probability that the

outcome of the trial would have differed but for defense counsel's

errors.  People v. McKenzie, 263 Ill. App. 3d 2d 716, 721, 635 N.E.2d 903 (1994).

	During the hearing on the motion in limine to bar the defendant's prior convictions, the court stated:

	"What I am going to do, State, is I will let in the 1994

Possession of a Controlled Substance with intent to

deliver.  I will let in the 1996 simple robbery.  I will

preclude the 1992 straight possession.

	Now what I will do as well is I will let the State

indicate that [in] 1992 you have been convicted of a

felony without regard to the sentence nor the events."

Defendant maintains that this ruling limited the admission of the 1992 conviction to allow only the fact that it was a conviction and

therefore it was objectively unreasonable for defense counsel to

elicit testimony from the defendant regarding the 1992 conviction. 

We disagree.

	It was a sound trial strategy for defense counsel to choose to

front the convictions.  "[F]aced with the prospect that defendant

would be impeached with the prior conviction if he testified, it

was reasonable strategy to inform the jury 'up front' in

anticipation of defendant's testimony.  This is a common enough

strategy, and one which would justify the introduction of the prior

conviction." People v. Anderson, 272 Ill. App. 3d 566, 570, 653 N.E.2d 395 (1995).  Counsel merely posited to the defendant, "[I]n

1992 were you convicted of a felony?"  It was defendant himself,

not defense counsel, who chose at this point, rather than admitting

that he had three separate felony convictions, to claim that he

only had two convictions.  As the trial court stated when defense

counsel objected to the State's introduction of certified copies of

defendant's separate 1992 and 1994 convictions in rebuttal:

	"The defendant took the stand and said 199--mentioned

two, and 1994, one in the same counselor.  You have no

control over what your client said, what he said from the

stand, but it is fair rebuttal because the inference is

that--the inference is that these are one in the same.

[sic].  He did that."

From the trial court's ruling, it appears that it was allowing the

State to put all three of defendant's convictions before the jury. 

Even if defendant took the ruling to mean that the court was only

allowing rebuttal evidence as to two convictions, defendant could not use this ruling as a basis to falsely testify that he only had

two convictions.  Therefore, defense counsel's question regarding

defendant's 1992 conviction was not objectively unreasonable.  

C.   CONSECUTIVE SENTENCE

	Defendant argues that the court's ruling that his 30-year

consecutive sentence for armed robbery should be modified to run

concurrently.  In support of his argument, defendant relies upon an

interpretation of section 5-8-4(a) of the Unified Code of

Corrections (the Code) (730 ILCS 5/5-8-4(a) (West 1996)) and the

holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435. 

	We first address defendant's argument that his consecutive

sentence violated the tenets of Apprendi.  Our supreme court addressed whether Apprendi is applicable to Section 5-8-4(a) in People v. Carney, 196 Ill. 2d 518 (2001).  There, the defendant was charged with intentional murder and felony murder based on a charge

of armed robbery.  The jury returned a verdict of guilty of armed

robbery and a general verdict of guilty of first degree murder. 

The trial court sentenced the defendant to 29 years on murder and

10 years on armed robbery, with the sentences to run consecutively. 

This court reversed the consecutive nature of the sentence as being

violative of the holding in Apprendi.  People v. Carney, 317 Ill. App. 3d 806, 740 N.E.2d 435 (2000).  Our supreme court reversed this aspect of our holding.  "[W]e hold that consecutive sentences imposed under section 5-8-4(a) of the Code do not violate the due

process rights of defendants and that the Supreme Court's Apprendi decision  does not apply to such sentences."  Carney, 196 Ill. 2d at 536.  This is because "[c]onsecutive sentences do not expose a

defendant to punishment exceeding the statutory maximum for each

conviction."  Carney, 196 Ill. 2d at 536.  We hold that as both of defendant's individual sentences were within the statutory range

established by the legislature, the sentences do not violate

Apprendi.  People v. Wagener, 196 Ill. 2d 269, 283-84 (2001).

	We turn next to defendant's argument that his consecutive

sentences violate section 5-8-4(a) of the Unified Code of

Corrections (730 ILCS 5/5-8-4(a)(West 1994). The applicable

sentencing scheme in effect at the time the offenses were

committed, provided in pertinent part: 

	"The court shall not impose consecutive sentences for

offenses which were committed as part of a single course

of conduct during which there was no substantial change

in the nature of the criminal objective, unless, one of

the offenses for which defendant was convicted was a

Class X or Class 1 felony and the defendant inflicted

severe bodily injury, or where the defendant was

convicted of a violation of Section 12-13 [criminal

sexual assault] or 12-14 [aggravated criminal sexual

assault] of the Criminal Code of 1961, in which event the

court shall enter sentences to run consecutively. 

Sentences shall run concurrently unless otherwise

specified by the court." 730 ILCS 5/5-8-4(a) (West 1994). 

This section was recently interpreted by our supreme court in

People v. Whitney, 188 Ill. 2d 91, 720 N.E.2d 225 (1999).  In Whitney, the defendant was convicted of first degree murder of one victim and aggravated discharge of a firearm against a second victim, who suffered no injury.  The trial court sentenced the

defendant to consecutive terms of imprisonment and the appellate

court reversed, holding: "[f]irst degree murder, while obviously

satisfying the 'severe bodily injury' requirement of section 5-8-4,

is not a Class X or Class 1 felony under the Code."  People v. Whitney, 297 Ill. App. 3d 965, 968, 720 N.E.2d 225 (1998).

The supreme court affirmed the appellate court, holding: 

	"[W]e construe the first exception under section 5-8-4(a)

	 as requiring consecutive sentencing where the defendant 

	has been convicted of either a Class X or Class 1 felony 

	and where he had inflicted severe bodily injury during 

	the commission of that felony.***

		***

		***First degree murder is not a Class X or 

	Class 1 felony; rather, it is its own class of felony.  

	730 ILCS 5/5-5-1(b) (West 1994).  Aggravated discharge 

	of a firearm is a Class 1 felony.  720 ILCS 5/24-1.2(a)

	(2),(b)(West 1994). Defendant's conduct however, in 

	committing the offense of aggravated discharge of a 

	firearm did not result in severe bodily injury to the 

	victim of that felony, Theodore Macklin.  We therefore 

	hold that the requirements for the first exception under 

	section 5-8-4(a) have not been satisfied." (Emphasis 

	added).  Whitney, 188 Ill. 2d at 98-100. 

	Here, defendant was convicted of the first degree murder of Scott Tisdale, two counts of home invasion, one with Scott Tisdale

as the victim and one with James Tisdale as the victim, and one

count of armed robbery with James Tisdale as the victim.  The trial

court sentenced defendant to 60 years for first degree murder, a

consecutive 30-year sentence for the armed robbery of James

Tisdale, and a concurrent 30-year sentence for home invasion. 

	Defendant maintains that the incidents that occurred on

October 6 were committed as part of a single course of conduct

during which there was no substantial change in the nature of the

criminal act.  Specifically, defendant alleges that because the

offenses were part of a single course of conduct, under section 5-

8-4(a), the imposition of a consecutive sentence was improper

because the armed robbery did not result in severe bodily injury to

James Tisdale.  Applying the holding of Whitney, as James Tisdale did not suffer severe bodily injury, defendant's conviction for the

armed robbery of James cannot trigger a consecutive sentence

pursuant to section 5-8-4(a).

	The State argues that defendant's consecutive sentences may be

upheld based on section 5-8-4(b) of the Code.  At the time that the

offenses were committed, that section read: 

		"The court shall not impose a consecutive sentence

except as provided for in subsection (a) unless, having

regard to the nature and circumstances of the offense and

the history and character of the defendant, it is of the

opinion that such a term is required to protect the

public from further criminal conduct by the defendant,

the basis for which the court shall set forth in the

record." 730 ILCS 5/5-8-4(b) (West 1994). 

However, before a court may consider consecutive sentences under section 5-8-4(b), the court must first determine whether section 5-

8-4(a) applies.  By its language, section 5-8-4(a) applies to all

offenses that arise out of a single course of conduct.  This was

recognized by the court in Whitney when it held: 

	"There is no dispute that defendant committed these

crimes as part of a single course of conduct during which

there was no substantial change in the nature of the

criminal objective.  Consequently, defendant is subject

to consecutive sentences only if either of the exceptions set forth in section 5-8-4(a) are applicable."  (Emphasis

added).  People v. Whitney, 188 Ill. 2d at 99.

	It is important to note that, as a general rule, when multiple

offenses are committed in a single course of conduct, consecutive

sentences are prohibited.  The exceptions to this general rule were

discussed by our supreme court in People v. Curry, 178 Ill. 2d 509, 687 N.E.2d 877 (1997):

		"This court has determined that section 5-8-4(a)

creates two exceptions to the general rule that

consecutive sentences may not be imposed for multiple

offenses which occur as part of a single course of

conduct during which there was no substantial change in

the nature of the criminal objective.  The first

exception occurs when one of the multiple offenses is a

Class X or Class 1 felony and severe bodily injury is

inflicted; the second exception occurs when one of the

multiple offenses is a violation of section 12-13

(criminal sexual assault) or 12-14 (aggravated criminal

sexual assault) of the Criminal Code of 1961.  When a defendant's convictions bring him within either of these

two exceptions, the mandatory consecutive sentencing

provision of section 5-8-4(a) is triggered and

consecutive sentences must be imposed."  People v. Curry, 178 Ill. 2d at 519-20. 

The court also explained on which charges the trial courts were to

impose consecutive sentences under section 5-8-4(a) and how these

sentences were to be served:

		"The triggering offenses listed in section 5-8-4(a)

are crimes of a singular nature, involving 'particularly

serious invasions of the person.' [Citations.] By

enacting the mandatory consecutive sentencing provision

of section 5-8-4(a), the legislature sought to punish the

commission of triggering offenses more harshly than the

commission of other crimes. [Citation.] This legislative

intent would be defeated if the triggering and

nontriggering offenses were treated in a like manner. 

Accordingly, we hold that consecutive sentences are

mandatory only for those offenses which trigger the

application of section 5-8-4(a). [Citations.]

	***

	***Consequently, section 5-8-4(a) must be construed so

that any consecutive sentences imposed for triggering

offenses be served prior to, and independent of, any

sentences imposed for nontriggering offenses.  Sentences

for multiple nontriggering offenses may be served

concurrently to one another after any consecutive

sentences for triggering offenses have been discharged.

[Citations.]" People v. Curry, 178 Ill. 2d at 538-39. 

If multiple convictions arise out of a single course of conduct, and one or more of those convictions is for a triggering offense,

section 5-8-4(a) requires that any sentence for the triggering offense or offenses be served consecutively to any sentence imposed

for nontriggering offenses.  People v. Curry, 178 Ill. 2d at 538- 39.  However, if multiple convictions arise out of a single course of conduct, and none of those convictions is for a triggering

offense, section 5-8-4(a) prohibits consecutive sentences.  People v. Whitney, 188 Ill. 2d at 99; People v. Daniel, 311 Ill. App. 3d 276, 287, 723 N.E.2d 1279 (2000); People v. Kagan, 283 Ill. App. 3d 212, 220, 669 N.E.2d 1239 (1996).  

	Further, if consecutive sentences are prohibited by section 5- 8-4(a), then they cannot be imposed under section 5-8-4(b).  People v. Kagan, 283 Ill. App. 3d at 223; People v. Fritz, 225 Ill. App. 3d 624, 628, 588 N.E.2d 307 (1992).  This is because subsection (b)

does not provide an additional basis to impose consecutive

sentences when the multiple convictions arise out of a single

course of conduct; rather, it requires the sentencing court to make

a specific finding if it wishes to impose consecutive sentences in

a case where the court has the discretion to do so.  People v. Kagan, 283 Ill. App. 3d at 223.  Sentencing courts have no discretion under section 5-8-4(a).  They are required to impose consecutive sentences on all triggering offenses arising out of a

single course of conduct, and they are prohibited from imposing

consecutive sentences on nontriggering offenses arising out of a

single course of conduct.

	Prior to July 22, 1997, section 5-8-4(b) gave the trial court

the discretion to impose consecutive sentences on any crime not committed in a single course of conduct if the court made a finding

that such sentences were necessary to protect the public.  People v. Cooper, 239 Ill. App. 3d 336, 359, 606 N.E.2d 705 (1992).  

	This version of section 5-8-4(b) was in effect at the time the

instant offenses were committed; therefore, the trial court had

discretion to impose consecutive sentences on the defendant if the

offenses were committed in separate courses of conduct and the

trial court made a specific finding that such sentences were

necessary to protect the public.  As section 5-8-4(b) only applies

to offenses that were committed in separate courses of conduct, we

must first determine if the instant offenses were committed in a

single course or separate courses of conduct.

	In People v. Bell, 196 Ill. 2d 343, 348, 751 N.E.2d 1143, 1146 (2001), our supreme court held: 

	"[G]enerally, under section 5-8-4(a) consecutive

sentences will not be imposed whenere a defendant commits

offenses that were part of a 'single course of conduct

during which there was no substantial change in the

nature of the criminal objective.'  This test is

frequently referred to as the 'independent motivation

test.'  See e.g. People v. Kagan, 283 Ill. App. 3d at22112, 220 (1996); People v. Fritz, 225 Ill. App. 3d  624, 629 (1992); People v. Harris, 220 Ill. App. 3d 31, 32 (1991); People v. Ingram, 84 Ill. App. 3d 495, 498 (1980); People v. Siglar, 18 Ill. App. 3d 381, 383 (1974).

	In adopting the "independent motivation test" to determine whether offenses were part of a single course of conduct during

which there was no substantial change in the nature of the criminal

objective, the court in Bell did not really explain how courts are to apply the independent motivation test.

	This issue was also recently discussed and interpreted in

People v. Daniel, 311 Ill. App. 3d at 286-87.  There, the court held:

	"[W]e believe that the language 'during which there was

no substantial change in the nature of the criminal

objective' is meant to limit instead of define the

language 'single course of conduct.'  Thus, we hold that

section 5-8-4(a) applies only to those offenses committed

during a single course of conduct that is guided by an

'"overarching criminal objective.'" See People v. Kagan, 283 Ill. App. 3d 212, 220 (1996), quoting People v. Fritz, 225 Ill. App. 3d 624, 629 (1992).  In other words, if the acts constituting the course of conduct were

independently  motivated, section 5-8-4(a) is

inapplicable.  

		Thus, we must determine whether the trial court

properly concluded that defendant's actions in this case

constituted a single course of conduct.  In doing so we

must examine whether the motivation to commit the

aggravated criminal sexual assault was independent of the

motivation to commit the aggravated robbery, or whether

both were guided by an 'overarching criminal objective.'

		The term 'conduct' is defined in the Criminal Code

as 'an act or a series of acts, and the accompanying

mental state.'  720 ILCS 5/2-4 (West 1994).  A 'course of

conduct' is not necessarily confined to a single incident

but may encompass a range of activity. [People v.] Bole, 155 Ill. 2d [188], 193 [(1993)].  The term 'objective'

means 'something toward which effort is directed.' 

Webster's Third New International Dictionary 1556 (1993). 

Thus, an 'overarching objective' is a broad goal toward

which individual acts are directed."  People v. Daniel, 311 Ill. App. 3d at 286-87.

	The determination of whether a defendant's actions constituted

a single course of conduct is a question of fact for the trial

court to determine.  People v. Edwards, 259 Ill. App. 3d 151, 156, 630 N.E.2d 1266 (1994).  Therefore, we defer to the trial court's

conclusion unless that conclusion is against the manifest weight of

the evidence.  People v. Daniel, 311 Ill. App. 3d at 287. 

	In this case, the trial court did not make a finding as to

whether the offenses committed on October 6, 1995, of which

defendant was convicted, arose out of a single course of conduct. 

Consequently, we must remand this case to the trial court.  In doing so, we direct the trial court to first determine whether the

armed robbery of James Tisdale, the home invasion of both James and

Scott Tisdale, and the murder of Scott Tisdale were committed in a

single course of conduct during which there was no substantial

change in the nature of the criminal objective.

	The court must then determine whether the defendant inflicted

severe bodily injury during the commission of any of the Class X

felonies that were committed in a single course of conduct.  We

note that it is uncontested that James Tisdale was not injured

during the armed robbery or home invasion.  Consequently, if the

court determines that these offenses occurred in a single course of

conduct, the trial court may not impose consecutive sentences on

defendant for either of these offenses under either section 5-8-

4(a) (see People v. Whitney, 188 Ill. 2d at 100) or under section 5-8-4(b) (see People v. Kagan, 283 Ill. App. 3d at 220).

	If on remand the trial court determines that the home invasion

and murder of Scott Tisdale occurred in a single course of conduct,

the court must then determine whether defendant inflicted severe

bodily injury upon Scott Tisdale during the commission of the home

invasion.  If the court finds both of these factors to be present,

the court must impose a sentence on the Class X offense of home

invasion, consecutive to the sentence for first degree murder.

	In People v. Arna, 168 Ill. 2d 107, 112, 658 N.E.2d 445 (1995), our supreme court held that when the provisions of section

5-8-4(a) have been met, imposition of consecutive sentences is mandatory.  The court held that the imposition of a concurrent

sentence in violation of section 5-8-4(a) is void and subject to a

reviewing court's remand for imposition of the required consecutive

sentence.  Arna, 168 Ill. 2d at 113.

	We must next determine whether the first degree murder of

Scott Tisdale satisfies the severe bodily injury requirement.  In People v. Hill, 294 Ill. App. 3d 962, 691 N.E.2d 797 (1998), this court affirmed the sentence of a defendant who had been sentenced

to natural life for first degree murder, to a 60-year consecutive

term for home invasion and to a 30-year consecutive term for armed

robbery.  This court reduced the sentence for home invasion to 30

years under People v. Young, 124 Ill. 2d 147, 529 N.E.2d 497 (1988), but affirmed the consecutive sentences for both the home

invasion and armed robbery of the single victim.  The court also

rejected the defendant's argument on appeal that he did not use a

weapon when he took the victim's property.  "[A]s long as there is

some concurrence between the defendant's threat of force and the

taking of the victim's property, a conviction for armed robbery is

proper. [People v.] Lewis, 165 Ill. 2d [305], 339 [(1995)]; People v. Strickland, 154 Ill. 2d 489, 524, 609 N.E.2d 1366 (1992); People v. Wilson, 254 Ill. App. 3d 1020, 1059, 626 N.E.2d 1282 (1993).  Furthermore, convictions for armed robbery will be upheld on review

when the defendant's use of threat or force and the taking are

found to be a series of continuous acts. [Citations.]"  People v. Hill, 294 Ill. App. 3d at 971.

	In People v. Moreland, 292 Ill. App. 3d 616, 686 N.E.2d 597 (1997), appeal denied, 179 Ill. 2d 606 (1998), this court affirmed the defendant's convictions for murder, armed robbery and

aggravated kidnaping with sentences of 60 years for murder, 30

years on armed robbery to run consecutively and 15 years on the

aggravated kidnaping to run concurrently.  In affirming the

sentences, the court cited section 5-8-4(a) and People v. Curry, 178 Ill. 2d 509, 687 N.E.2d 877 (1997).  The appellate court

affirmed the trial court's finding that the severe bodily injury to

the single victim did not "arise from" the act of the kidnaping,

citing People v. Medrano, 282 Ill. App. 3d 887, 669 N.E.2d 114 (1996).  

	The appellate court in Whitney held that first degree murder "obviously satisf[ied] the 'severe bodily injury' requirement of

section 5-8-4."  People v. Whitney, 297 Ill. App. 3d at 968.  The supreme court's holding in Whitney also supports the proposition that the murder of the victim of a triggering offense fulfills the

"severe bodily injury" requirement of section 5-8-4(a).  In

affirming the appellate court, the supreme court in Whitney said "[W]e disagree that only Class X or Class 1 felonies where severe bodily injury is an inherent factor trigger consecutive sentences

under section 5-8-4(a).  Instead, any Class X or Class 1 felony that results in severe bodily injury being inflicted on the victim

of that felony triggers consecutive sentences."  (Emphasis added.) Whitney, 188 Ill. 2d at 99.  Based on this language, the murder of the victim of a "triggering offense" may provide the basis for a

finding of severe bodily injury for purposes of section 5-8-4(a). 

	In determining what relationship must exist between the

triggering offense and the severe bodily injury, the supreme court in Whitney first reviewed the defendant's position on appeal.  In doing so, the court specifically referred to cases holding that

"the severe bodily injury requirement of section 5-8-4(a) must be proximately connected to the Class X or Class 1 felony for it to be a triggering offense."  (Emphasis added.)  People v. Whitney, 188 Ill. 2d at 96, citing People v. Medrano, 282 Ill. App. 3d 887, 896- 97, 669 N.E.2d 114 (1996), and People v. Toliver, 251 Ill. App. 3d 1092, 1099-1100, 623 N.E.2d 880 (1993).  The court held: "[W]e

construe the first exception under section 5-8-4(a) as requiring

consecutive sentencing where the defendant has been convicted of

either a Class X or Class 1 felony and where he had inflicted

severe bodily injury during the commission of that felony." (Emphasis added.)  People v. Whitney, 188 Ill. 2d at 98-99.

	We stress that in determining whether to impose consecutive

sentences in a given case, the trial court must make factual

determinations as to each of the factors required by section 5-8-4

and by cases interpreting that section.  The first issue to be

decided is whether the multiple offenses of which the defendant is

convicted were committed in a single course of conduct.  If so,

section 5-8-4(a) applies, and consecutive sentences are mandatory

but they may only be imposed on "those offenses which trigger the application of section 5-8-4(a)."  People v. Curry, 178 Ill. 2d at 538.  Consequently, trial courts must also determine whether a

given offense is a triggering offense.  Since 1988, section 5-8-

4(a)(i) has required consecutive sentences for Class X or Class 1

felonies during the commission of which the defendant inflicted

severe bodily injury.  People v. Whitney, 188 Ill. 2d at 99.  Section 5-8-4(a)(ii) has required consecutive sentencing for

convictions of criminal sexual assault and aggravated criminal

sexual assault since 1988.  Effective January 1, 2000, first degree

murder and many charges of armed violence were added as triggering

offenses.  If the offenses were committed in a single course of

conduct and none of them qualify as triggering offenses, section 5-

8-4(a) prohibits consecutive sentencing.  People v. Whitney, 188 Ill. 2d at 100.

	If the trial court determines that the offenses were not

committed in a single course of conduct, consecutive sentences may

only be imposed under section 5-8-4(b).  Prior to July 22, 1997,

section 5-8-4(b) gave the trial court the discretion to impose

consecutive sentences on any crime not committed in a single course of conduct if the court made a finding that such sentences were

necessary to protect the public.  This is the section that may be

applicable in the instant case.

	We note that, effective July 22, 1997, section 5-8-4(b) was

amended to require consecutive sentences on triggering offenses

that were not committed in a single course of conduct.  People ex rel. Waller v. McKoski, 195 Ill. 2d 393 (2001); People v. Conley, 306 Ill. App. 3d 1, 11 (1999).  The triggering offenses enumerated

in section 5-8-4(b) are identical to those set out in section 5-8-

4(a).  Thus, the 1997 amendment had the practical effect of

requiring consecutive sentences on all triggering offenses, whether

they were committed in a single course of conduct or separate

courses of conduct.  After July 22, 1997, if the crimes were not

committed in a single course of conduct and none of them qualify as

triggering offenses, section 5-8-4(b) gives the trial court

discretion to impose a consecutive sentence if it makes a finding

that consecutive sentences are necessary to protect the public. 

People v. Stacey, 193 Ill. 2d 203, 211 (2000).  

	For the foregoing reasons, we affirm defendant's convictions

for murder, home invasion and armed robbery and defendant's

sentence for first degree murder.  We vacate defendant's sentences

for armed robbery and home invasion and we remand this matter to

the trial court for re-sentencing on those charges, in accordance

with the directions herein.

	Affirmed in part and , vvacated in part, cause and remanded with

instructions.

	THEIS, and REID, J.J., concurring.