SECOND DIVISION

									December 16, 2003

No. 1-02-2156

THE PEOPLE OF THE STATE OF ILLINOIS, 

		Plaintiff-Appellee, 

				v.

TAMARA SAWCZENKO-DUB, 

		Defendant-Appellant. 	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Thomas M. Tucker, 

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Following a bench trial, defendant Tamara Sawczenko-Dub was

convicted of first degree murder of her husband, Donald Dub (Don). 

The trial court sentenced her to 45 years' imprisonment; 20 years

(the minimum) for first degree murder plus the mandatory 25-year

enhancement that was added to the sentencing statute (730 ILCS 5/5-

8-1(a)(1)(d)(iii) (West 2000)) by Public Act 91-404 (eff. January

1, 2000) because defendant personally discharged a firearm causing

death during the course of the offense.  On appeal, defendant

contends that the sentencing scheme is unconstitutional because:

(1) it violates the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, §11), both as written and

as applied; (2) it violates separation of powers principles; (3) it

violates double jeopardy; and (4) it constitutes an impermissible

double enhancement of the offense of first degree murder and her

sentence.  Defendant also challenges the sufficiency of the evidence, contending that the trial court should have found her

guilty of second degree murder or, alternatively, of involuntary

manslaughter.  For the reasons set forth below, we affirm.  

	[NONPUBLISHABLE MATERIAL UNDER SUPREME COURT RULE 23 REMOVED HERE]

	[THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

	ANALYSIS

	As set forth above, this case involves numerous 

constitutional challenges to the first degree murder sentencing

statute as amended by Public Act 91-404.  Public Act 91-404 amended

the penalty portion of various criminal offenses, including first

degree murder, which the legislature deemed "the most serious

offenses" (91 Ill. Gen. Assem., House Proceeding, May 13, 1999, at

67-68 (statements of Representative Turner)), by adding what has

been referred to as the "15/20/25 to life" mandatory sentence

enhancement or add-on provisions when the designated offenses

involve the use of a firearm.  See People v. Moss, 206 Ill. 2d 503, 506, 795 N.E.2d 208 (2003).  The relevant provision here provides:

			"(a)  Except as otherwise provided in the

statute defining the offense, a sentence of

imprisonment for a felony shall be a

determinate sentence set by the court under

this Section, according to the following

limitations:

			(1)  for first degree murder

				(a) a term shall not be less

than 20 years and not more than 60 years, or

	***

				(d)(i) if the person committed

the offense while armed with a

firearm, 15 years shall be added to

the term of imprisonment imposed by

the court;

				(ii)  if, during the commission

of the offense, the person

personally discharged a firearm, 20

years shall be added to the term of

imprisonment imposed by the court;

				(iii)  if, during the

commission of the offense, the

person personally discharged a

firearm that proximately caused

great bodily harm, permanent

disability, permanent disfigurement,

or death to another person, 25 years

or up to a term of natural life

shall be added to the term of

imprisonment imposed by the court." 

730 ILCS 5/5-8-1(a)(1)(d)(i), (ii),

(iii) (West 2000).

	Initially, we note that the law with respect to constitutional challenges to a criminal statute is well-settled:

			"A statute is presumed constitutional,

and the party challenging the statute bears

the burden of demonstrating its invalidity. 

[Citation.]  This court has a duty to construe

a statute in a manner that upholds its

validity and constitutionality if it can

reasonably be done.  [Citation.]  The question

of whether a statute is constitutional is

subject to de novo review."  Moss, 206 Ill. 2d at 519-20.

	I.  Proportionate Penalties1

	The proportionate penalties clause of the Illinois

Constitution provides that "[a]ll penalties shall be determined

both according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship."  Ill.

Const. 1970, art. I, §11.  "In evaluating whether a proportionate

penalties violation has been established, the central question is

whether the penalty at issue has been set by the legislature

'according to the seriousness of the offense.'  [Citation.]"  Moss, 206 Ill. 2d at 522,  As stated by the court in Hill, there are three separate tests to identify a proportionate penalties

violation:

		"First, a penalty violates the proportionate

penalties clause if it is cruel, degrading, or

so wholly disproportionate to the offense

committed as to shock the moral sense of the

community.  Second, a penalty is invalid under

the proportionate penalties clause where

similar offenses are compared, and conduct

that creates a less serious threat to the public health and safety is punished more

severely.  Third, there is a violation of the

proportionate penalties clause when identical

offenses are given different sentences."2  Hill, 199 Ill. 2d at 452.

	In People v. Miller, 202 Ill. 2d 328, 781 N.E.2d 300 (2002), the court set forth the relevant principles in analyzing the first

test, stating:

		" 'When the legislature has authorized a

designated punishment for a specified crime,

it must be regarded that its action represents

the general moral ideas of the people, and the

courts will not hold the punishment so

authorized as either cruel and unusual, or not

proportioned to the nature of the offense,

unless it is a cruel or degrading punishment

not known to the common law, or is a degrading

punishment which had become obsolete in the

State prior to the adoption of its

constitution, or is so wholly disproportioned

to the offense committed as to shock the moral

sense of the community.'  [Citation.]" 

Miller, 202 Ill. 2d at 339.

The Miller court went on to note that it had never defined "what kind of punishment constitutes 'cruel,' 'degrading,' or 'so wholly

disproportioned to the offense as to shock the moral sense of the

community.' "  Miller, 202 Ill. 2d at 339.  The Miller court stated that this is so "because, as our society evolves, so too do our

concepts of elemental decency and fairness which shape the 'moral

sense' of the community."  Miller, 202 Ill. 2d at 339.  Thus, the court concluded, "[w]e review the gravity of the defendant's

offense in connection with the severity of the statutorily mandated

sentence within our community's evolving standard of decency." 

Miller, 202 Ill. 2d at 340.

	Under the second test, a two-step, cross-comparison analysis

must be conducted.  Hill, 199 Ill. 2d at 454.  Specifically, the Hill court stated that

		"[f]irst, we consider whether the purposes of

the compared offenses are distinct such that

comparative proportionality review is not

appropriate.  [Citations.]  Second, if the

purposes are deemed related, we consider

whether the offense with the harsher penalty

is more serious than the offense with the less

severe penalty."  Hill, 199 Ill. 2d at 454.

With respect to the first part of this test, "it is well settled

that if the statutory purposes are different, comparative

proportionality review is inappropriate."  Moss, 206 Ill. 2d at 523.  With respect to the second part of this test, the Hill court stated:

		"[T]he legislature may perceive a need to

enact a more stringent penalty provision in

order to halt an increase in the commission of

a particular crime.  [Citations.]  As an

institution, the legislature is better

equipped than the judiciary to identify and

remedy the evils confronting our society and

is more capable of gauging the seriousness of

an offense.  [Citations.]  Thus, courts will

generally defer to the legislature's judgment

that a particular offense is more serious than

another."  Hill, 199 Ill. 2d at 454.

A.	As Written

	Defendant first contends that the sentencing scheme for first

degree murder by personally discharging a firearm (hereinafter

referred to as the 25-year firearm enhancement provision), set

forth in section 5-8-1(a)(1)(d)(iii) (730 ILCS 5/5-8-

1(a)(1)(d)(iii) (West 2000)), violates the proportionate penalties

clause of the Illinois Constitution.  Ill. Const. 1970, art. I,

§11.  In this regard, defendant relies on the following two bases

in support of her argument: that the scheme is so severe that it

offends the "moral sense" and that, when compared to other offenses, specifically the commission of murder that is accompanied

by brutal and heinous conduct, it punishes more severely a less

serious crime.  In a footnote, defendant also argues that the lack

of good time credit is unconstitutional.3

	With respect to defendant's first basis, she maintains that

the automatic 25-year firearm enhancement provision prohibits the

trial court from fashioning a sentence that takes into account a

defendant's rehabilitative potential.  In other words, according to

defendant, the provision forecloses the trial court, in actuality,

from giving any weight to mitigation evidence, which, in the

instant case, was substantial.  With respect to defendant's second

basis, she maintains that a single shot murder, with mitigating

circumstances, is automatically punished by 45 years to life,

whereas murder, that is accompanied by brutal and heinous conduct, 

is punishable by only 20 years to life since the court can weigh

mitigating factors in the latter instance.4  Defendant argues that this disparity cannot be justified by the legislature's desire to

deter the use of firearms.

	With respect to the first proportionate penalties test,

whether a penalty is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral

sense of the community, defendant's only argument, that the trial

court was not able to weigh the mitigation evidence, ignores the

fact that the trial court was able to weigh such evidence in

determining whether to sentence her to the minimum 20-year

sentence, the maximum 60-year sentence, or somewhere in between. 

See, e.g., People v. Martinez, 76 Cal. App. 4th 489, 495, 90 Cal. Rptr. 2d 517, 521 (1999) (noting that, under a similar firearm

enhancement provision, "the trial court retains flexibility as to

fixing the underlying base term for [the offense]").  Defendant

also ignores the fact that the trial court can take into account

mitigating factors in fashioning the enhancement sentence. 

Specifically, the enhancement sentence ranges from 25 years to

life.  Accordingly, defendant's argument is unpersuasive.

	In any event, we find that the 25-year firearm enhancement

provision is not so disproportionate to the offense of first degree

murder by the personal discharge of a firearm causing injury or

death that it shocks the moral sense.  We note that California case

law, interpreting its enhancement statute that our Illinois statute

is modeled after, is instructive.5  The California courts have uniformly concluded that the California firearm enhancement

provisions do not result in such a grossly disproportionate

sentence as to constitute cruel and unusual punishment.  See, e.g., People v. Zepeda, 87 Cal. App. 4th 1183, 1212-16, 105 Cal. Rptr. 2d 187, 207-08 (2001); Martinez, 76 Cal. App. 4th at 493-98, 90 Cal. Rptr. 2d at 519-23.  In so finding, the California courts have

recognized that severe punishment is warranted for the use of a

firearm during a crime because firearms allow a perpetrator to kill

effortlessly and are lethal to the victim of the underlying crime

and to others in the vicinity.  Zepeda, 87 Cal. App. 4th at 1215, 105 Cal. Rptr. 2d at 208.  For example, one court has noted that

the use of a firearm in committing a murder has been "adjudged by

society through its legislative representatives as particularly

egregious and dangerous."  People v. Hutchins, 90 Cal. App. 4th 1308, 1313, 109 Cal. Rptr. 2d 643, 647 (2001).  In this regard, the

Hutchins court noted that the firearm enhancement provisions were enacted "in order to deter a particular form of violence judged

especially threatening to the social fabric."  Hutchins, 90 Cal. App. 4th at 1315, 109 Cal. Rptr. 2d at 647.  Another court has

concluded that singling out firearm offenses is warranted because

		" '[t]he ease with which a victim of one of

the enumerated felonies could be killed or

injured if a firearm is involved clearly supports a legislative distinction treating

firearm offenses more harshly than the same

crimes committed by other means.' 

[Citation.]"  Zepeda, 87 Cal. App. 4th at 1215, 105 Cal. Rptr. 2d at 207.

More specifically, the Zepeda court stated:

		"A firearm gives a perpetrator a strong

advantage over the victim and effectively

deters the victim's escape.  A firearm is

particularly lethal to the victim of the

underlying crime as well as others in the

vicinity; and a firearm allows the perpetrator

to effortlessly and instantaneously execute an

intent to kill once it is formed."  Zepeda, 87 Cal. App. 4th at 1215, 105 Cal. Rptr. 2d at

207-08.

Similarly, another court noted that "firearms pose a potentially

greater risk to safety than other weapons because of their inherent

ability to harm a greater number of victims more rapidly than other

weapons," and their ability to " 'inflict deadly wounds on a number

of people within a wide area and within a short amount of time.' 

[Citation.]"  People v. Perez, 86 Cal. App. 4th 675, 678-79, 103 Cal. Rptr. 2d 533, 535 (2001).  See also 720 ILCS 5/33A-1 (West

2002) (the Illinois legislature itself set forth the same reasons

and concerns espoused by the California courts, detailed above, in the statutory section entitled, "Legislative Intent").

	Given the factors identified above, lethalness, quickness,

ease, range, etc. of the use of a firearm, along with the fact that defendant's conduct subjected an innocent person to a "death

sentence," in a society faced with increased incidences of gun

usage and a society that has exhibited moral outrage regarding

these circumstances, we do not believe that the 25-year firearm

enhancement provision is cruel, degrading, or so wholly

disproportionate to the offense committed, first degree murder with

the personal discharge of a firearm causing injury or death, that

it shocks the moral sense of the community.  As the court in Morgan stated, we should "not second-guess the legislature's determination

that the protection of society necessitates the imposition of

severe penalties whenever a firearm is used in the course of an

offense."  Morgan, 203 Ill. 2d at 488.

	With respect to the second proportionate penalties test, 

requiring a cross-comparison analysis, neither defendant nor the

State has undertaken the analysis required by law.  Because it is

not this court's duty to make arguments for the parties,

particularly defendant here who is challenging the

constitutionality of a statute, we do not consider defendant's

argument on this basis alone since defendant has waived the issue. 

188 Ill. 2d R. 341(e)(7).

	Assuming, arguendo, that defendant had not waived this issue, we would nonetheless conclude that a cross-comparison proportionality review is not appropriate here because the

statutory purpose of the Public Act 91-404 enhancements and the

statutory purpose behind prevention of brutal and heinous murders

(the crime relied upon by defendant as the second basis of her

argument) are not the same.  The purpose of Public Act 91-404 is

"to deter the use of firearms" in the commission of certain

felonies.  See Moss, 206 Ill. 2d at 514; Morgan, 203 Ill. 2d at 488; Walden, 199 Ill. 2d at 395; Hill, 199 Ill. 2d at 457, 458; 91st Ill. Gen. Assem., Senate Proceedings, March 25, 1999, at 286

(statement of Senator Dillard).  While the legislature has not

defined a purpose with respect to brutal and heinous murders, nor

has our independent research located any authority stating the

legislative purpose, the purpose certainly and clearly was not to

deter the use of firearms in the commission of murder.  A quick

perusal of the annotated statute of section 5-8-1 clearly shows

that brutal and heinous conduct is as often committed by other

means, i.e., beating, stabbing, etc., as it is committed with a firearm.  730 ILCS 5/5-8-1 (West 2000).  Because the statutory

purposes of the provisions are not the same, a comparative review

therefore is not appropriate.  Accordingly, we reject defendant's

contention that the 25-year firearm enhancement provision violates

the proportionate penalties clause of the Illinois Constitution.6

B.  	As Applied

	In a supplemental brief, defendant contends that the

sentencing scheme for first degree murder by personally discharging

a firearm violates the proportionate penalties clause as applied to

her.  Defendant maintains that for all practical purposes she was

sentenced to a life sentence and there were abundant mitigating

factors, including the fact that she had never committed a violent

crime before, her conduct was not brutal and heinous, she had a

history of mental problems and substance abuse, and there was

testimony offered that she was a compassionate person.

	We do not find the 25-year firearm enhancement provision

disproportionate as applied to defendant.  The sentence was not so

harsh, cruel, degrading, or shocking to the conscience based on the

seriousness of the offense to conclude that it is unconstitutional. 

First, defendant received both the minimum underlying sentence and

the minimum enhanced sentence.  The seriousness of defendant's

conduct is unquestionable--she shot her husband to death.  As we

conclude below, defendant armed herself with a shotgun, loaded it to capacity, lured her husband to their apartment, and then sent

her children away.  Thereafter, defendant aimed the gun at her

husband and pulled the trigger.  Weighed against the facts of the

crime are the mitigating factors of lack of criminal history,

defendant's mental problems, and evidence that she was a dedicated

and devoted person.  The trial court, we must presume, weighed

these mitigating factors and, as noted above, gave defendant the

minimum of both sentences.  See People v. Quintan, 332 Ill. App. 3d 96, 109, 772 N.E.2d 833 (2002) (appellate court will presume that

the trial court considered appropriate factors in sentencing a

defendant); People v. Zarka-Nevling, 308 Ill. App. 3d 516, 526, 720 N.E.2d 334 (1999) (where mitigating factors are present, the

appellate court presumes the trial court considered them). 

Mitigating factors are not entitled to more weight than the

seriousness of the offense.  People v. Pippen, 324 Ill. App. 3d 649, 652, 756 N.E.2d 474 (2001).  Because the legislature, which we

must not second-guess, has concluded that committing first degree

murder by personally discharging a firearm necessitates an enhanced

sentence and the trial court considered the proper factors in

sentencing defendant, even though her sentence may be akin to a

life sentence, we do not deem the enhanced sentence

unconstitutional in light of the seriousness of defendant's crime.

	II.  Separation of Powers

	Defendant next contends that the sentencing scheme for first degree murder by personally discharging a firearm violates

separation of powers principles because the scheme removes from the

judicial branch all discretion to consider and give weight to

aggravation and mitigation factors and does not allow the trial

court to differentiate among offenders.

	In Hill, the defendant argued that the 15-year enhancement for committing home invasion while armed with a firearm, set forth in

section 12-11(a)(3) of the Criminal Code of 1961 (Code), violated

the separation of powers clause of the Illinois Constitution. 

Hill, 199 Ill. 2d at 442.  The defendant argued that the "mandatory add-on sentence of 15 years usurps the judiciary's sentencing power

by removing its ability to consider aggravating and mitigating

factors and to fashion a sentence that is tailored to the

circumstances of the offense."  Hill, 199 Ill. 2d at 446.  The supreme court disagreed.  Hill, 199 Ill. 2d at 446.  The court first concluded that the trial court still retained the ability to

consider aggravating and mitigating factors under the sentencing

scheme.  Hill, 199 Ill. 2d at 447.  The Hill court then found that the "mandatory sentencing schemes do not inherently usurp the

judiciary's power to impose a sentence."  Hill, 199 Ill. 2d at 447.  In this regard, the court noted that it had repeatedly held that

the legislature has the power to impose mandatory sentences.  Hill, 199 Ill. 2d at 447.  Specifically, the Hill court noted that in those circumstances, the court had found "that the legislature's

power necessarily includes the authority to establish mandatory minimum sentences, even though such sentences, by definition,

restrict the inquiry and function of the judiciary in imposing

sentence."  Hill, 199 Ill. 2d at 447.  The Hill court then noted that the United States Supreme Court has "rejected the

constitutional necessity for discretionary sentencing ranges." 

Hill, 199 Ill. 2d at 448.  Specifically, the Hill court relied upon Chapman v. United States, 500 U.S. 453, 114 L. Ed. 2d 524, 111 S. Ct. 1919 (1991), in which the Supreme Court stated:

		" 'Such a sentencing scheme--not considering

individual degrees of culpability--would

clearly be constitutional.  Congress has the power to define criminal punishments without

giving the courts any sentencing discretion.  [Citation.]   Determinate sentences were found

in this country's penal codes from its

inception [citation] and some have remained

until the present.  [Citations.]  A 

sentencing scheme providing for

'individualized sentences rests not on constitutional commands, but on public policy

enacted into  statutes.'  (Emphases added.)  [Citations.]"  Hill, 199 Ill. 2d at 448.

Based upon the above authority, the Hill court noted that "discretionary sentencing power did not always lie squarely within

the judiciary."  Hill, 199 Ill. 2d at 449.  In concluding that the sentencing scheme at issue did not "place an unconstitutional limit

on the judiciary's power to adjudicate, pronounce judgment, impose

sentence, interpret the law, or carry it into effect," the court

specifically stated:

		"When the legislature implements a mandatory

sentencing scheme, however, it necessarily

restricts the judiciary's discretion and its

ability to consider aggravating and mitigating

factors.   [Citations.]  

			We conclude that defendant has failed to

show that the legislature exceeded its

authority in implementing section

12-11(a)(3)'s mandatory add-on sentencing

scheme.  Generally, aggravating and mitigating

factors need not necessarily be a part of the

sentencing equation if the legislature deems

such factors inappropriate.  The legislature

has the power to fix the sentence for a crime

and, in turn, limit the scope of judicial

discretion with respect to imposing the

sentence."  Hill, 199 Ill. 2d at 450-51.

	Although Hill involved an enhancement to home invasion, as opposed to first degree murder in the instant case, we do not find

this fact precludes the applicability of the Hill court's rationale regarding the legislature's "power to fix the sentence for a crime."  Hill, 199 Ill. 2d at 450-51.  The defendant's argument in Hill was the same as defendant's argument here, i.e., the legislature's sentencing scheme removes all discretion from the

judiciary.  This argument was the core of the Hill court's analysis.  See also Olivo v. State, 823 So. 2d 872, 872-73 (Fla. App. 2002) (rejecting the defendant's argument that the Florida

firearm enhancement statute violates separation of powers

principles and noting that two other districts of the appellate

court had also done so).  Accordingly, we reach the same result

here and conclude that the 25-year firearm enhancement to first

degree murder does not violate separation of powers principles for

the reasons espoused in Hill.

	III.  Double Jeopardy

	Defendant next contends that the 25-year firearm enhancement

provision violates double jeopardy.  Defendant maintains that she

was placed in jeopardy for first degree murder, which depended upon

her discharging a firearm, and then the same factor, discharge of

a firearm, subjected her to additional penalties.

	As stated by the Moss court,

		"[t]he double jeopardy clause *** affords

three protections to the criminal defendant. 

'The first two, which are the most familiar,

protect against a second prosecution for the

same offense after acquittal, and against a second prosecution for the same offense after

conviction.'  [Citation.]  The third

safeguard, which is the one at issue here,

protects against multiple punishments for the

same offense."  Moss, 206 Ill. 2d at 535-36.

Thus, the question here is whether defendant is being punished more

than once for the same offense.  People v. Ollie, 333 Ill. App. 3d 971, 990, 771 N.E.2d 529 (2002).

	In the instant case, defendant was punished for the murder of

her husband with a 20-year sentence.  It was irrelevant whether she

used a firearm in committing the murder or not.  Once the State

proved she killed her husband and that she had the requisite

intent, she was subject to imprisonment of, at the least, 20 years. 

This sentence did not punish her for use of a firearm.  Again, she

was punished for killing her husband, however that may have

occurred.  Only after this was the 25-year enhancement provision

triggered by the use of a firearm element.  In Moss, the defendants raised a double jeopardy challenge to the enhancement provision

with respect to armed robbery.  The Moss court found that a defendant was subject to a Class X sentence for armed robbery even

if the offense did not involve a firearm.  As such, the mandatory

15-year enhancement to a Class X offense with a firearm did not

constitute multiple punishment for the firearm element.  Moss, 206 Ill. 2d at 536.  With respect to the 25-year enhancement, the court

reached the same conclusion, finding that the part of the sentence triggered by the firearm element was the 25-year sentence.  Moss, 206 Ill. 2d at 536.  Accordingly, the Moss court concluded that the use of a firearm element did not constitute multiple punishment

and, therefore, did not result in any double jeopardy violation.  Moss, 206 Ill. 2d at 537.

	Also instructive on this issue is the California case of

Hutchins.  In Hutchins, a California statute was in existence that specifically prohibited multiple punishments for a single act

(section 654).  Hutchins, 90 Cal. App. 4th at 1312, 109 Cal. Rptr. 2d at 645.  The defendant challenged the California firearm

enhancement provision as violating this statute.  The Hutchins court rejected the defendant's argument, stating:  

		"The manner in which any crime is accomplished

may vary in innumerable respects.  *** 

Section 654 is not implicated by the

imposition of a sentencing enhancement on a

particular manner of committing murder--with

the use of a firearm--adjudged by society

through its legislative representatives as

particularly egregious and dangerous." 

Hutchins, 90 Cal. App. 4th at 1313, 109 Cal. Rptr. 2d at 647.  

Rather, according to Hutchins,

		"[w]hat the Legislature has done by enacting

[the firearm enhancement provisions] is not to punish the same single criminal act more than

once or in more than one way.  Instead, in

determining that a criminal offender may

receive additional punishment for any single

crime committed with a firearm, the

Legislature has chosen to enhance or expand

the punishment imposed on a single underlying

crime, where committed by use of a firearm, in

order to deter a particular form of violence

judged especially threatening to the social

fabric."  Hutchins, 90 Cal. App. 4th at 1313- 14, 109 Cal. Rptr. 2d at 647.

The Hutchins court then stated:

		"[The defendant's] 'use of the firearm was not

a crime in and of itself.  The crime was the

extinction of a human life....  The gun was

simply the method selected by [the defendant]

to accomplish the crime, and the particular

method selected subjects [him] to an

additional penalty.  Because the underlying

crime and the enhancement are not identical,

there is and can be no double punishment.' 

[Citation.]"  Hutchins, 90 Cal. App. 4th at 1314, 109 Cal. Rptr. 2d at 647.  

In conclusion, the Hutchins court stated:

		"[T]he statute's purpose quite specifically is

to deter persons from inflicting great bodily

injury or death through the intentional

discharge of firearms in the commission of

such felonies, the exact result of the offense

which occurred here [second degree murder]. 

'To refrain from imposing the enhancement

would contradict the exact terms of the

statute, preventing the imposition of the

enhancement in many instances of murder,

manslaughter and attempted murder, the most

vicious results of [personally and

intentionally] discharging a weapon [in the

commission of a felony].  Imposing the

enhancement fulfills the legislative purpose

of punishing more severely those crimes which

actually result in great bodily injury. 

[Citation.]'  ***  '[Any contrary] result

would undermine the intent of the

legislation.'  [Citation.]"  Hutchins, 90 Cal. App. 4th at 1314, 109 Cal. Rptr. 2d at 647.

	Based on the principles espoused in Hill and Hutchins, we therefore find no double jeopardy violation in the instant case.

	IV.  Double Enhancement7

	In a second supplemental brief, defendant contends that the

sentencing scheme for first degree murder by personally discharging

a firearm creates an impermissible double enhancement of the

offense and sentence because the element of causation of death is

both an element of the offense of first degree murder and an

aggravating factor for imposition of the 25-year enhancement

sentence.  

	Double enhancement of an offense and sentence is generally

improper unless there is a clear legislative intent to the

contrary.  People v. Koppa, 184 Ill. 2d 159, 174, 703 N.E.2d 91 (1998).  See also People v. Ferguson, 132 Ill. 2d 86, 97, 547 N.E.2d 429 (1989).  It appears that there are two different

definitions or theories of thought with respect to double

enhancement.  The first theory states: "Double enhancement occurs

when a single factor is used 'both as an element of a defendant's

crime and as an aggravating factor justifying the imposition of a harsher sentence than might otherwise have been imposed.' 

(Emphasis in original.)"  Moss, 206 Ill. 2d at 533.  " 'Thus, to use one of those same factors that make up the offense as the basis for imposing a harsher penalty than might otherwise be imposed constitutes a double use of a single factor.'  (Emphasis in

original.)"  Moss, 206 Ill. 2d at 533.  See also People v. Rissley, 165 Ill. 2d 364, 390, 651 N.E.2d 133 (1995); Ferguson, 132 Ill. 2d at 97; People v. Milka, 336 Ill. App. 3d 206, 235, 783 N.E.2d 51 (2003); People v. Thompson, 331 Ill. App. 3d 948, 958, 773 N.E.2d 15 (2002); People v. Carney, 327 Ill. App. 3d 998, 1003, 765 N.E.2d 1028 (2002); People v. Sample, 326 Ill. App. 3d 914, 930, 761 N.E.2d 1199 (2001).  This theory is premised upon the assumption

that the legislature considered the factors inherent in an offense

in determining the appropriate sentence range.  Rissley, 165 Ill. 2d at 390.

	The second theory has stated the rule as follows: "It is well

established that double enhancement occurs when a factor previously

used to enhance an offense or penalty is again used to subject a

defendant to a further enhanced offense or penalty."  Koppa, 184 Ill. 2d at 174.  See also People v. Thomas, 171 Ill. 2d 207, 223, 664 N.E.2d 76 (1996); Ollie, 333 Ill. App. 3d at 989; People v. Phelps, 329 Ill. App. 3d 1, 6, 768 N.E.2d 168 (2002); People v. Watkins, 325 Ill. App. 3d 13, 20, 757 N.E.2d 117 (2001); People v. Phelps, 324 Ill. App. 3d 695, 700, 755 N.E.2d 36 (2001); People v. Childress, 321 Ill. App. 3d 13, 28, 746 N.E.2d 783 (2001); People v. Becker, 315 Ill. App. 3d 980, 995, 734 N.E.2d 987 (2000).  This theory is based upon the view that

		" 'the legislature has the power to codify

provisions which enhance a criminal offense (e.g., misdemeanor to a felony) or enhance the applicable range of punishment (e.g., extended term sentence or Class X sentencing).  This is

known as "single enhancement."  ' 

[Citation.]"  Phelps, 324 Ill. App. 3d at 700.

	Initially, we note that although defendant here focuses on the

"causation of death" as the appropriate factor to be used in our

analysis, which clearly is an element of first degree murder, the

focus and basis of the enhancement provisions here are the use of a firearm in the commission of certain felonies.  See Moore, 343 Ill. App. 3d at ___ (rejecting the defendant's argument that the

proper factor to be considered in double enhancement analysis was

causation of a death and finding that the proper factor to analyze

was the use of a firearm).  How the firearm was used is subordinate

to the ultimate focus of the legislature--the mere use of a

firearm.  Thus, we look to the element, "use of a firearm," rather

than "causation of death," as being the proper factor to analyze.

	Under the first theory of double enhancement set forth above,

we do not find any double enhancement violation.  First degree

murder does not require the use of a firearm.  Specifically, use of

a firearm is not an essential element of first degree murder and

the State is not required to prove the use of a firearm in

establishing that someone committed first degree murder.  Clearly,

first degree murder can be committed in any number of ways.  All

the State was required to prove was that defendant here killed her husband and that she had the requisite intent in doing so.  People v. Sykes, 341 Ill. App. 3d 950, 982-93, 793 N.E.2d 816 (2003).  Because the personal use of a firearm factor was not an inherent or essential element of first degree murder and it was only used to

impose a longer sentence, there is no double enhancement.  See

Moore, 343 Ill. App. 3d at ___ (holding that there was no double enhancement in connection with the 25-year to life enhancement

provision with respect to murder).

	Similarly, under the second theory set forth above, there was

no double enhancement.  The use of a firearm element was not used,

in the first instance, to enhance or increase the first degree

murder offense that defendant committed, nor to enhance or increase

her 20-year sentence for first degree murder.  Thus, there can be

no "use again" to further enhance her offense or penalty for first

degree murder.

	Accordingly, we conclude that the 25-year firearm enhancement

provision does not constitute a double enhancement on the basis

that the proper factor to look to regarding application of the

provision is the use of a firearm, not the causation of death.

	[THE FOLLOWING MATERIAL IS NONPUBLISHABLE MATERIAL UNDER SUPREME COURT RULE 2323 removeREMOVED HERE]

	V.  Second Degree Murder

	Defendant next contends that she should have been found guilty

of, at most, second degree murder and that her attorney should have

made this argument to the trial court.  Defendant maintains, therefore, that her attorney was ineffective.  According to

defendant, there was evidence of serious provocation, i.e., the quarrel between her and Don in which Don suddenly ejected her from

their apartment, that should have either been argued by counsel or

considered sua sponte by the trial court.  Defendant argues that this quarrel was sufficient serious provocation, particularly in

light of her instability, to warrant reducing the charge against

her to second degree murder.

	"A person commits second degree murder when '[a]t the time of

the killing he is acting under a sudden and intense passion

resulting from serious provocation by the individual killed ***,

but he negligently or accidentally causes the death of the

individual killed.'  [Citation.]"  People v. Kidd, 295 Ill. App. 3d 160, 166, 692 N.E.2d 455 (1998).  "The defendant must be acting

under a sudden and intense passion spurred from serious provocation

that the law recognizes as reasonable."  Kidd, 295 Ill. App. 3d at 167.  "Serious provocation" is defined as "conduct sufficient to

excite an intense passion in a reasonable person."  720 ILCS 5/9-

2(b) (West 2002).  The test is objective, not subjective (People v. Petrusel, 238 Ill. App. 3d 683, 689, 606 N.E.2d 547 (1992)), and the traits of the defendant cannot be considered (People v. Pecora, 107 Ill. App. 2d 283, 296, 246 N.E.2d 865 (1969); 21 Ill. Law &

Prac. Homicide §33 (2003)).  

	In Illinois, four categories of provocation are recognized:

"(1) substantial physical injury or substantial physical assault, (2) mutual quarrel or combat, (3) illegal arrest, and (4) adultery

with the offender's spouse."  Kidd, 295 Ill. App. 3d at 167.  The defendant must demonstrate both passion and serious provocation "[f]or, passion on behalf of the defendant, no matter how violent,

will not relieve the defendant of culpability for first degree

murder unless it is engendered by provocation."  People v. Garcia, 165 Ill. 2d 409, 429, 651 N.E.2d 100 (1995); People v. Falls, 235 Ill. App. 3d 558, 568-69, 601 N.E.2d 1276 (1992).  With respect to

mutual quarrel or combat, "mere words are not contemplated.  Words,

in and of themselves, no matter how vile, can never constitute

serious provocation such that second degree murder should be found

instead of first degree murder."  Garcia, 165 Ill. 2d at 429-30.  "Rather, the words *** must be accompanied by mutual combat so

serious that it mitigates against finding the defendant guilty of

first degree murder."  Garcia, 165 Ill. 2d at 430.  With respect to the fourth category, "adultery of a spouse is sufficient

provocation only when the parties are discovered in the act of

adultery or immediately before or after such an act, and the

killing immediately follows such discovery."  Falls, 235 Ill. App. 3d at 568.  See also People v. Chevalier, 131 Ill. 2d 66, 75-76, 544 N.E.2d 942 (1989) (declining to change the law "by holding that

a confession of adultery by a spouse is legally adequate

provocation").  See also People v. Cedeno, 263 Ill. App. 3d 257, 264, 635 N.E.2d 1047 (1994); People v. Schorle, 206 Ill. App. 3d 748, 757, 565 N.E.2d 84 (1990).  "As a result, mere words or gestures, even if they result in an admission of adultery and

comment negatively on the party's sexual prowess are still

considered insufficient provocation."  Falls, 235 Ill. App. 3d at 569.  See also Chevalier, 131 Ill. 2d at 76; People v. Yarbrough, 269 Ill. App. 3d 96, 102-03, 645 N.E.2d 423 (1994); Cedeno, 263 Ill. App. 3d at 264; People v. Bradley, 220 Ill. App. 3d 890, 900, 581 N.E.2d 310 (1991).  In this regard, a history of marital

discord generally indicates "growing anger or resentment against

the spouse rather than the sudden and intense passion required by

the statute."  Falls, 235 Ill. App. 3d at 568.  See also Chevalier, 131 Ill. 2d at 75 (where the court stated, "we fail to understand

why a history of marital discord should be a factor favoring a

voluntary manslaughter instruction ***[;] a history of marital

discord ***, if relevant at all, would undermine, not support, a

defendant's claim that the evidence supports a voluntary

manslaughter instruction").

	Defendant does not specify under which of the four recognized

categories her provocation allegedly falls and, in any event, we

find that she falls under none of them.  Clearly, there was no

substantial injury or physical assault to plaintiff, nor was she

illegally arrested.  Similarly, there is no evidence of adultery. 

Thus, the only category left is mutual quarrel and combat. 

However, defendant would not fall under this category because there

was no evidence of any struggle or physical contact whatsoever

between defendant and Don at the time Don told defendant to leave.  See Cedeno, 263 Ill. App. 3d at 264.  Words alone, the only thing present in the instant case, are clearly insufficient to constitute

serious provocation.  See Chevalier, 131 Ill. 2d at 70-72; Yarbrough, 269 Ill. App. 3d at 102-03; Cedeno, 263 Ill. App. 3d at 264; Schorle, 206 Ill. App. 3d at 757.  See also Bradley, 220 Ill. App. 3d at 900 (noting that Chevalier reaffirmed the long-standing rule that mere words alone are insufficient provocation).  Thus,

defendant's conduct in the instant case did not fall into any of

the four recognized categories of provocation and, instead,

consisted of mere words between defendant and Don that were

insufficient to constitute provocation.  See Yarbrough, 269 Ill. App. 3d at 101.

	We note that defendant relies on a line of cases, People v. Newberry, 127 Ill. App. 2d 322, 262 N.E.2d 282 (1970), People v. Curwick, 33 Ill. App. 3d 757, 338 N.E.2d 468 (1975), and People v. Wesley, 65 Ill. App. 3d 25, 382 N.E.2d 358 (1978), which held that the breakup of a relationship was sufficient to give rise to a

sudden and intense passion and, thus, sufficient to constitute

provocation.  We do not find these cases persuasive or controlling. 

First, Newberry did not cite any authority as to the law it was required to follow, i.e., the standards for manslaughter, nor did it cite any authority for its conclusion.  Curwick simply cited Newberry and People v. Ahlberg, 13 Ill. App. 3d 1038, 301 N.E.2d 608 (1973).  Wesley cited Newberry, Curwick, and Ahlberg.  Additionally, our supreme court has deemed Ahlberg to be bad law.  Chevalier, 131 Ill. 2d at 73-76 (stating that the Ahlberg line of cases was "an incorrect statement of Illinois law" and noting that

under this line of cases, specifically Ahlberg, "even the slightest provocation would suffice, as long as the defendant testified that

the deceased's conduct provoked intense passion").  See also

Bradley, 220 Ill. App. 3d at 900 (noting that Chevalier observed that the above cited line of cases eroded the rule with respect to

mere words being insufficient provocation and that such cases

represented " 'an incorrect statement of Illinois law'

[citation]"); Schorle, 206 Ill. App. 3d at 758 (same as Bradley).  Although Chevalier did not cite Newberry, Curwick, or Wesley, we find that the same conclusion would apply to those cases--they are

incorrect statements of Illinois law.  See People v. Hightower, 258 Ill. App. 3d 517, 522, 629 N.E.2d 1197 (1994).

	Second, and most importantly, the line of cases relied upon by

defendant in support of her "provocation argument" is not in accord

with prevailing law.  In Hightower, the defendant relied upon Wesley in support of his contention that his killing of his wife occurred as a result of the parties' marriage breaking up and,

thus, constituted sufficient provocation under the law.  Hightower, 258 Ill. App. 3d at 521.  The Hightower court rejected the defendant's argument, stating that "although the breakup of a

marriage often causes intense emotional pain, it simply is not a

recognized category of sufficient provocation under the law of this

State."  Hightower, 258 Ill. App. 3d at 521.  With specific reference to Wesley, the Hightower court stated, "[T]he only support in Wesley for th[e] erroneous departure from the clearly recognized categories of sufficient provocation is a line of cases

created by the appellate court out of whole cloth to fit the

exigencies of the cases before them," citing Wesley, Curwick, Newberry, and Ahlberg.  Hightower, 258 Ill. App. 3d at 522.  The Hightower court noted that the supreme court in Chevalier "properly criticized cases like Ahlberg that, without any explanation, considered a history of marital discord as a factor favoring a

voluntary manslaughter instruction."  Hightower, 258 Ill. App. 3d at 522.  The court concluded that "the mere breakup of a marriage

does not warrant the giving of a voluntary manslaughter

instruction."  Hightower, 258 Ill. App. 3d at 522.  

	Because a marital breakup simply does not fall into any of the

four categories discussed above, and, in the instant case, as

established by the record, Don's conduct involved only words, Don's

conduct did not constitute sufficient provocation under the law. 

Accordingly, we find that defendant's "quarrel" with Don was not

sufficient provocation to warrant a reduction of the first degree

murder charge against her to second degree murder.

	Additional support for our conclusion is based on the fact

that defendant's current second degree murder theory is

inconsistent with the theory she advanced at trial--that she

accidentally shot her husband.  See, e.g., People v. Tate, 25 Ill. App. 3d 411, 419, 323 N.E.2d 485 (1974).  In a similar respect, defendant specifically testified that she was not mad at Don for

any reason.  Additionally, she did not testify that she was upset

because he ejected her from the home.  Clearly, there was no

evidence of a sudden and intense passion experienced by defendant

that resulted from serious provocation to warrant a second degree

murder finding.  Accordingly, we find that the trial court did not

err in failing to sua sponte consider a second degree murder verdict, nor did defendant's counsel render ineffective assistance

in failing to raise this theory as an issue.

	VI.  Involuntary Manslaughter

	Defendant next contends that her conviction should be reduced

from first degree murder to involuntary manslaughter because she

had no felonious intent and she only shot her husband by accident

when she moved the gun away from her chin.  Defendant argues that

the trial court gave too much weight to her statement to the police

versus her in-court testimony.

	A defendant commits involuntary manslaughter "when he performs

acts that are likely to cause death or great bodily harm to another

and he performs these acts recklessly."  People v. Eason, 326 Ill. App. 3d 197, 209, 760 N.E.2d 519 (2001).  Conversely, a defendant

does not commit involuntary manslaughter "where the evidence

reveals that the defendant voluntarily and willfully commits an act

that has the natural tendency to cause death or great bodily harm,

as such acts demonstrate an intent to kill or injure the victim."  Eason, 326 Ill. App. 3d at 208-09.  "In general, a defendant acts recklessly, when he is aware that his conduct might result in death

or great bodily harm, although that result is not substantially

certain to occur."  Eason, 326 Ill. App. 3d at 209.  A defendant's testimony that she did not intend to kill anyone is insufficient to

create a fact question on the issue of recklessness.  Eason, 326 Ill. App. 3d at 209.  The defendant must point to some evidence of

something that she did recklessly.  People v. Castillo, 188 Ill. 2d 536, 541, 723 N.E.2d 274 (1999).  "[A]n involuntary manslaughter

instruction is generally not warranted where the nature of the

killing, shown by either multiple wounds or the victim's

defenselessness, shows that defendant did not act recklessly." 

People v. DiVincenzo, 183 Ill. 2d 239, 251, 700 N.E.2d 981 (1998).  One relevant factor in determining whether a defendant acted

recklessly is whether he used his bare fist or a weapon. 

DiVincenzo, 183 Ill. 2d at 251.

	Initially, we note that defendant's argument here is premised

solely upon a determination of credibility, i.e., whether her trial testimony was truthful or her statement to the police after her

arrest was truthful.  The trial court specifically found that

defendant's statement to the police was more credible.  "In a bench

trial, it is the province of the trial court to determine the

credibility and weight of the testimony, to resolve the

inconsistencies and conflicts therein and to render a decision

accordingly."  People v. Cunningham, 333 Ill. App. 3d 1045, 1048, 777 N.E.2d 478 (2002).  Because the trial court made this

determination, we reject defendant's argument on this basis alone.

	Defendant also relies upon People v. Bauman, 34 Ill. App. 3d 582, 340 N.E.2d 78 (1975), contending that the facts of that case

are similar to the facts present here.  We disagree--the facts are

in no respect similar.  Bauman involved a party where numerous individuals were involved in various separate altercations during

which violent behavior was exhibited.  Bauman, 34 Ill. App. 3d at 584-87.  The defendant in Bauman was fearful for his own life and killed the victim as a result of attempting to protect himself. 

Bauman, 34 Ill. App. 3d at 589.  Moreover, the defendant's story about how the incident occurred did not change over time. 

Specifically, both in the statement he gave to the police shortly

after the shooting and at trial, the defendant testified that the

shooting was an accident.  Bauman, 34 Ill. App. 3d at 589.  Bauman did not involve a private incident between only two people as in

the instant case.  In addition, the defendant in Bauman was trying to protect himself, not trying to kill himself as defendant here

alleges.  Lastly, defendant's version of the incident in the

instant case was not consistent.  Shortly after the shooting,

defendant stated that she picked the shotgun off of the bed, pulled

the trigger, and shot Don, whereas at the time of her trial,

defendant testified that the shooting of Don was an accident when

she was trying to move the shotgun away from her own chin.

	We agree with the trial court that there was sufficient evidence of defendant's intent to shoot Don to preclude a finding

of recklessness.  As the trial court noted, defendant loaded the

gun and lured Don back to their apartment.  By defendant's own

statement given shortly after the incident, which the trial court

gave credence to, defendant pointed the gun at Don and fired.  This

is corroborated by the stipulated testimony of Officer Tomko. 

Clearly, this conduct does not exhibit elements of recklessness,

particularly given Don's defenselessness.  Defendant voluntarily

and wilfully committed an act, pointing the gun at Don and pulling

the trigger, knowing the shotgun was fully loaded because she had

loaded it herself, the natural tendency of which was to cause

death.  Accordingly, we find that defendant was not entitled to an

involuntary manslaughter conviction.

	VII.  Personal Discharge of Firearm

	Defendant next contends that the 25-year enhancement sentence

must be vacated because the State failed to prove that she

personally discharged a firearm within the meaning of section 2-

15.5 of the Code.  Defendant maintains that she did not knowingly

and intentionally fire the shotgun.

	Section 2-15.5 of the Code states: "A person is considered to

have 'personally discharged a firearm' when he or she, while armed

with a firearm, knowingly and intentionally fires a firearm causing

the ammunition projectile to be forcefully expelled from the

firearm."  720 ILCS 5/2-15.5 (West 2002).  For the reasons set forth above, we find that the State proved that defendant

personally discharged a firearm within the meaning of the 25-year

enhancement provision and section 2-15.5 of the Code.  [THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

	CONCLUSION

	For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

	Affirmed.

	WOLFSON, P.J., and CAHILL, J., concur.