No. 2--02--0520

JUSTICE GROMETER delivered the opinion of the court:

Defendant, Sean P. Kucharski, was convicted of controlled substance trafficking (720 ILCS570/401.1 (West 2000)), following a bench trial in the circuit court of Lake County. Defendant wasalso convicted of three related counts that the trial court found arose from the same act. The trialcourt sentenced defendant to 16 years' imprisonment. Defendant now appeals, alleging two errors. First, he contends that testimony of medical personnel, as well as some evidence they recoveredduring the course of a surgery, should not have been presented at trial due to the physician-patientprivilege (735 ILCS 5/8--802 (West 2000)). Second, he argues that he was not proven guilty ofpossessing over 200 grams of a controlled substance, for the substance was weighed while wet, whichimproperly elevated its weight. For the reasons that follow, we affirm as modified and remand fora new sentencing hearing.

I. BACKGROUND

To facilitate an understanding of this case, we will summarize the events leading up todefendant's conviction. However, as the issues raised by defendant are discrete, we will discussdetails of the evidence presented at trial in the course of addressing defendant's arguments.

On March 29, 2001, defendant entered Good Shepherd Hospital in Barrington and wasattended to by Dr. Gia Compagnoni. An X ray revealed that he had numerous balloons in hisdigestive tract, and it appeared that defendant was suffering from an amphetamine overdose. Compagnoni eventually performed surgery to remove the balloons.

Officer Tim Gretz, of the Lake County Metropolitan Enforcement Group, was present atGood Shepherd. He observed the surgery and had several communications throughout the day withmedical personnel regarding defendant's condition. Following the surgery, he, along with medicalpersonnel from Good Shepherd, collected and counted the balloons. Approximately 230 balloonswere recovered. Subsequently, a number of the balloons were tested and determined to containmethylenadioxy-methamphetamine or MDMA, which is commonly known as ecstacy.

Gretz testified that he had been directed to Good Shepherd by his supervisor. After arriving,he spoke with Leroy Monroy, an officer from the North Central Narcotics Task Force. Monroy toldhim that there was a patient at the Northern Illinois Medical Center by the name of Charlotte Cox,who had apparently ingested a number of balloons filled with ecstacy. Monroy informed Gretz that,in the course of their investigation, they had learned that Cox knew defendant. Cox and defendanthad recently returned from a trip to Amsterdam and both had gotten sick. At trial, Cox testified todetails of the trip, including that the two had ingested a large number of balloons filled with ecstacy. Four medical personnel from Good Shepherd also testified at trial: Compagnoni; Jonathan Aristoza,a nurse who assisted in the operation; Carol Alfieri, an administrative nursing supervisor; andMargaret Ann Obenauf, a nurse who was working in the emergency room when defendant arrived.

Gretz also testified that he was in a scrub room adjacent to the operating room during theoperation. There was a window between the two rooms. Gretz stated that he observed the entiresurgery and saw Compagnoni remove numerous balloons from defendant's abdomen. Following thesurgery, he, with the assistance of hospital personnel, counted the balloons. Gretz then tookpossession of them.

Prior to trial, defendant moved to exclude the testimony of the four medical personnel, as wellas the physical evidence recovered during the operation. The trial court rejected defendant's request. Relying on People v. Torres, 144 Ill. App. 3d 187, 190-91 (1986), the trial court first concluded thatdefendant had no reasonable expectation of privacy in the operating room. The trial court also reliedon section 3.2 of the Criminal Identification Act (20 ILCS 2630/3.2 (West 2000)) in holding that thehospital had a duty to inform the police of defendant's condition. The trial court also held that theecstacy was properly weighed while it was wet because that was the state in which it was taken fromdefendant. Defendant now appeals.

II. ANALYSIS

We will first address defendant's contention that evidence should have been excluded underthe physician-patient privilege (735 ILCS 5/8--802 (West 2000)). We will then turn to the questionof whether it was proper to weigh the ecstacy taken from defendant while it was wet.

A. The Physician-Patient Privilege

Defendant raises two distinct arguments regarding the application of the physician-patientprivilege. First, he argues that the personnel who were involved in his treatment at Good Shepherdshould not have been allowed to testify at trial. Second, he contends that the physical evidencegathered during the course of his treatment should have been suppressed. We agree with his firstpoint, but not his second. Furthermore, we hold that the error in allowing the medical personnel totestify was harmless.

Generally, a trial court's ruling on a motion to suppress evidence is entitled to significantdeference and will be disturbed only if it is manifestly erroneous. People v. Murray, 137 Ill. 2d 382,387 (1990). However, the relationship between the physician-patient privilege (735 ILCS 5/8--802(West 2000)) and section 3.2 of the Criminal Identification Act (20 ILCS 2630/3.2 (West 2000))presents a question of law, which is subject to de novo review. People v. Childress, 338 Ill. App. 3d540, 547 (2003).

The physician-patient privilege is codified at section 8--802 of the Code of Civil Procedure. 735 ILCS 5/8--802 (West 2000). This section provides, in pertinent part, as follows: "No physician[or] surgeon *** shall be permitted to disclose any information he or she may have acquired inattending any patient in a professional character, necessary to enable him or her professionally toserve the patient ***." 735 ILCS 5/8--802 (West 2000). The section goes on to enumerate severalexceptions to the privilege, none of which is relevant to the instant case. The privilege covers notonly physicians, but also support personnel involved in rendering treatment to a patient. Lewis v.Illinois Central R.R. Co., 234 Ill. App. 3d 669, 679 (1992). It exists to encourage full disclosure bya patient to ensure that he or she receives the best possible diagnosis and treatment. People v. Wilber,279 Ill. App. 3d 462, 467 (1996).

Section 3.2 of the Criminal Identification Act (20 ILCS 2630/3.2 (West 2000)) also createsan exception to the physician-patient privilege. Specifically, it states:

"It is the duty of any person conducting or operating a medical facility, or anyphysician or nurse as soon as treatment permits to notify the local law enforcement agencyof that jurisdiction upon the application for treatment of a person who is not accompanied bya law enforcement officer, when it reasonably appears that the person requesting treatmenthas received:

***

(2) any injury sustained in the commission of or as a victim of a criminal offense." 20 ILCS 2630/3.2 (West 2000).

Thus, "Illinois law requires medical personnel to inform authorities of any person requesting treatmentwhen their injuries may have been caused by criminal conduct." Torres, 144 Ill. App. 3d at 191. Ithas been noted that an "obvious consequence of requiring such reports is that police officers willbegin their investigations at the medical facility." Torres, 144 Ill. App. 3d at 191. Additionally, awell-established principle of statutory construction is that when two statutes are applicable, the morespecific statute controls over the more general one. Bradshaw v. City of Metropolis, 293 Ill. App.3d 389, 393 (1997). Here, the Criminal Identification Act is more specific, for it addresses whatphysicians must do when they come upon an individual with injuries possibly incurred during acriminal act, as opposed to the more general provisions of the physician-patient privilege statute. Hence, it controls.

Turning first to the physical evidence recovered during the surgery, we hold that it wasproperly admitted at trial. There was nothing inappropriate about the medical personnel and GoodShepherd communicating to Gretz that they were treating defendant. In fact, this action was requiredby section 3.2 of the Criminal Identification Act (20 ILCS 2630/3.2 (West 2000)). Furthermore, asthe trial court observed, that the personnel communicated certain details about defendant's conditionto the police was required. In enacting section 3.2, we do not believe that the legislature intendedthat the police be notified simply of the existence of a patient. It surely intended that some basicinformation, such as the patient's identity and the nature of the injury, be communicated so that theinformation would be useful to the police. Reading section 3.2 as requiring only that medicalpersonnel tell the police that they have some unidentified patient who is suffering from someunspecified injury would be absurd, and, in interpreting a statute, we presume that the legislature didnot intend an absurd result. People v. Shanklin, 329 Ill. App. 3d 1144, 1146 (2002).

Moreover, the record discloses that Gretz learned of defendant's existence from a source otherthan the medical personnel at Good Shepherd. During the suppression hearing, Gretz testified thathe was informed by Monroy, the agent form the North Central Narcotics Task Force, that the agencyhe worked for had an agent with Cox at another hospital. Cox had admitted to swallowing a balloonfilled with five ecstacy pills and also related that she had been to Amsterdam with defendant. Monroyalso told Gretz that he was aware that defendant had been taken to Good Shepherd for a possibledrug overdose. Thus, it is probable that Gretz would have been at Good Shepherd regardless ofwhether he received any information from hospital personnel.

Thus, we conclude that any of the information conveyed to Gretz that caused him to bepresent during defendant's surgery was properly conveyed to him. Section 3.2 of the CriminalIdentification Act (20 ILCS 2630/3.2 (West 2000)) mandated that the hospital inform the police ofdefendant's existence and condition, and much additional information regarding defendant came froma source other than the hospital. The inquiry now turns to whether any of Gretz's conduct at thehospital violated any right held by defendant.

Nothing Gretz did impinged upon any of defendant's rights. Defendant held no reasonableexpectation of privacy in the operating room. See Torres, 144 Ill. App. 3d at 191; Buchanan v. State,432 So. 2d 147, 148 (Fla. App. 1983); State v. Thompson, 222. Wis. 2d 179, 187, 585 N.W.2d 905,909 (1998). Thus, there is no legal basis for defendant to object to Gretz's presence in the scrubroom adjacent to the operating room, nor to the fact that Gretz observed the surgery. From thisposition, Gretz was able to observe Compagnoni remove numerous balloons from defendant'sabdomen. These events occurred within Gretz's line of sight. The plain view doctrine permits anofficer to seize an item if "(1) he views the object from a place he is legally entitled to be, and (2) theobject is immediately apparent to him to be evidence of a crime, contraband or otherwise subject toseizure." People v. DeLuna, 334 Ill. App. 3d 1, 13 (2002). As discussed above, Gretz was in a placehe was entitled to be. Further, having seen a number of balloons removed from defendant's body, itshould have been immediately apparent to him that the balloons were evidence of a crime. Defendant relies on People v. Maltbia, 273 Ill. App. 3d 622 (1995), in support of hisargument. In that case, medical personnel discovered what appeared to be marijuana concealed inthe defendant's underwear during the course of their treatment of him. The reviewing court, relyingon the physician-patient privilege, held that the trial court properly granted the defendant's motionin limine to suppress the evidence. Maltbia, 273 Ill. App. 3d at 628-29. Maltbia, however, isdistinguishable. In that case, no police officers were present at the time the marijuana wasdiscovered. Indeed, Justice Holdridge, specially concurring in Maltbia, observed that, "had a policeofficer been present in the emergency room, personally observed the bag being removed from thedefendant, and personally observed the contents of the bag, that officer could testify to his ownobservations." Maltbia, 273 Ill. App. 3d at 631 (Holdridge, J., specially concurring). The instant caseis more like the scenario envisioned by Justice Holdridge.

Thus, we conclude that the seizure of the ecstacy was permissible. Since the events werepermissibly observed by Gretz, they were in no sense confidential or privileged. Therefore, we holdthat the admission of this evidence was not barred by the physician-patient privilege (735 ILCS 5/8--802 (West 2000)).

Regarding the testimony of the medical professionals presented at trial, we come to a differentconclusion. As noted above, the physician-patient privilege (735 ILCS 5/8--802 (West 2000)) createsa general rule of nondisclosure regarding information a physician garners in the course of treating apatient. Several exceptions exist, including the provision of the Criminal Identification Act (20 ILCS2630/3.2 (West 2000)) set forth above. The exceptions enumerated in the statute setting forth theprivilege itself read as follows:

"(1) in trials for homicide when the disclosure relates directly to the fact or immediatecircumstances of the homicide, (2) in actions, civil or criminal, against the healthcarepractitioner for malpractice ***, (3) with the expressed consent of the patient, or in case ofhis or her death or disability, of his or her personal representative or other person authorizedto sue for personal injury or of the beneficiary of an insurance policy on his or her life, health,or physical condition, (4) in all actions brought by the patient, his or her personalrepresentative, a beneficiary under a policy of insurance, or the executor or administrator ofhis or her estate wherein the patient's physical or mental condition is an issue ***, (5) uponan issue as to the validity of a document as a will of the patient, (6) in any criminal actionwhere the charge is either first degree murder by abortion, attempted abortion or abortion,(7) in actions, civil or criminal, arising from the filing of a report in compliance with theAbused and Neglected Child Reporting Act, (8) to any department, agency, institution orfacility which has custody of the patient pursuant to State statute or any court order ofcommitment, (9) in prosecutions where written results of blood alcohol tests are admissiblepursuant to Section 11-501.4 of the Illinois Vehicle Code, or (10) in prosecutions wherewritten results of blood alcohol tests are admissible under Section 5--11a of the BoatRegistration and Safety Act." (Emphasis added.) 735 ILCS 5/8--802 (West 2000).

In each case where the privilege may be breached so that medical personnel may testify in a trial, thelegislature explicitly used terms such as "in prosecutions" or "in criminal actions." However, section3.2 of the Criminal Identification Act (20 ILCS 2630/3.2 (West 2000)) merely states that medicalpersonnel must notify the police in certain situations; it contains no language indicating that suchinformation may be the subject of courtroom testimony. The ease with which the legislature set forththe exceptions in section 8--802 leads us to conclude that, if it had intended section 3.2 to work asimilar effect, it would have said so. See North Shore MRI Centre v. Department of Revenue, 309Ill. App. 3d 895, 900 (1999) ("Had the legislature intended the reference to urine testing materialsfor diabetics to be merely an example of the type of testing materials exempt under the Act, it couldhave easily included language so indicating"); First Arlington National Bank v. Stathis, 115 Ill. App.3d 403, 409 (1983) (noting "had the legislature wished to include others, it could have done soeasily").

Thus, we hold that the exception to the physician-patient privilege set forth in section 3.2 isa limited one, allowing medical personnel to notify the police that a patient is suffering from injuriesthat appear to have been caused by a crime. Beyond this, the statute is silent, and we will not extendit any further than its plain language. Accordingly, we conclude that it was error to allow the medicalpersonnel to testify regarding information they obtained in treating defendant that fell within the scopeof the physician-patient privilege.

While we conclude that allowing such testimony was error, we also conclude that it washarmless. An error may be deemed harmless if "the evidence supporting a defendant's conviction isso overwhelming that the defendant would have been convicted even if the error was eliminated." People v. Tucker, 317 Ill. App. 3d 233, 243 (2000). In the instant case, the physical evidencerecovered from defendant was properly admitted. Thus, the drugs he was charged with possessingwere before the court. More importantly, Gretz personally observed the ecstacy-filled balloons beingremoved from defendant's abdomen. Additionally, Cox testified to the events that occurred inAmsterdam, particularly that defendant purchased ecstacy, placed it in balloons, and swallowed it. Cox's testimony might not be so compelling standing alone, due to her hope to secure lenity in herown case. However, the drugs she described defendant swallowing were actually recovered fromdefendant's abdomen. Thus, defendant's assertion that absent the testimony of the medical personnel,the State could not have established that he possessed the contraband is ill founded.

Moreover, much of their testimony was cumulative of properly admitted evidence. Aristozaand Compagnoni described the operation, but so did Gretz. Compagnoni described the X rayshowing the balloons inside of defendant; however, Gretz testified that he observed the balloons beingremoved from defendant. Obenauf's testimony regarding defendant's statement that he swallowedballoons filled with ecstacy while in Europe was cumulative of Cox's testimony as well as the fact thataround 230 balloons filled with ecstacy were removed from defendant's abdomen. In short, noreasonable trier of fact would have acquitted defendant even if the medical personnel who treated himhad not testified.

To conclude, the trial court committed no error in denying defendant's motion to suppress theevidence recovered during the surgery. Furthermore, the erroneous admission of the testimony ofthe medical personnel who treated defendant was harmless. We therefore reject defendant's argumenton this point.

B. Whether the State Proved that Defendant Possessed More than 200 Grams of Ecstacy

Defendant next argues that he was not proven to have possessed the quantity of a controlledsubstance required to be found guilty of committing a Class X offense. He bases this argument onthe fact that the drugs were weighed while they were wet. Apparently some of the ecstacy in someof the balloons had been adulterated with defendant's bodily fluids. Initially, we note that the Statecontests the factual premise of defendant's argument. The trial court, however, found that the ecstacy"was wet when it was taken from the defendant because it was in his body." A trial court's factualfindings are entitled to great deference and will be reversed only if contrary to the manifest weightof the evidence. People v. Quezada, 335 Ill. App. 3d 233, 243 (2002). We have reviewed the recordand conclude that there is ample support for the trial court's finding. Moreover, our review of therecord indicates that, if the weight of the liquid with which the ecstacy was adulterated is excluded,the State did not prove that defendant possessed over 200 grams of ecstacy. Hence, we are left withthe legal question of whether it was proper to weigh this evidence while it was wet. As this is aquestion of law, review is de novo. Childress, 338 Ill. App. 3d at 547.

Section 401.1(b) of the Illinois Controlled Substances Act (Controlled Substances Act) (720ILCS 570/401.1(b) (West 2000)) states that the penalty for controlled substance trafficking shall beno less than twice the minimum nor more than twice the maximum term of imprisonment authorizedby section 401 of the Controlled Substances Act. Section 401(a)(11) makes it a Class X felony topossess with intent to deliver 200 grams or more of any substance containing a Schedule I or IIcontrolled substance. 720 ILCS 570/401(a)(11) (West 2000). Ecstacy, or MDMA, is classified asa Schedule I substance in section 204(d)(2). 720 ILCS 570/204(d)(2) (West 2000). Thus, ifdefendant was proven guilty of possessing over 200 grams of a substance containing ecstacy, asentence of between 12 and 60 years' imprisonment was authorized. 730 ILCS 5/5--8--1(a)(3) (West2000). Defendant contends, however, that the State proved only that he possessed between 50 and200 grams of MDMA, which is a Class 1 felony that carries a sentence of between 8 and 30 years. See 720 ILCS 570/401(c)(11) (West 2000); 730 ILCS 5/5--8--1(a)(4) (West 2000).

The State, of course, bears the burden of proving each and every element of a crime. Peoplev. Sanders, 212 Ill. App. 3d 773, 777 (1991). The quantity of a controlled substance that a defendantis charged with possessing is an essential element of the offense of possession with intent to deliver(720 ILCS 570/401(a)(11) (West 2000)), and, consequently, controlled substance trafficking (720ILCS 570/401.1(b) (West 2000)). People v. Williams, 267 Ill. App. 3d 870, 879 (1994). Possessionof a smaller amount is a lesser included offense. People v. Jones, 174 Ill. 2d 427, 428 (1996).

Regarding the question of whether the weight of the substance, while wet, was properly usedto determine that defendant committed a Class X felony, we find significant guidance in People v.Mayberry, 63 Ill. 2d 1 (1976). In that case, the supreme court considered an equal protectionchallenge to the Controlled Substances Act in so far as it classifies the severity of an offense basedon the weight of the substance involved, that weight being determined not by the amount of the purecontrolled substance but by the entire weight of the substance containing the controlled substance. Mayberry, 63 Ill. 2d at 8-9. The supreme court rejected the challenge, finding a rational basis for theclassification. The court first noted that controlled substances are usually marketed in a diluted orimpure state. Mayberry, 63 Ill. 2d at 9. It thus concluded that it was not irrational for the legislatureto deal with the mixture rather than the drug itself. Mayberry, 63 Ill. 2d at 9. The court also foundthe scheme rational in that the legislature may have felt that a drug can be distributed to a greaternumber of people in a mixed state and can therefore be more dangerous. Mayberry, 63 Ill. 2d at 9. Hence, the supreme court's holding in Mayberry was based on the substance at issue being arguablymore harmful once it is mixed for distribution.

Another case from which we take guidance is People v. Butler, 304 Ill. App. 3d 750 (1999),on which the State relies heavily. In Butler, the defendant was convicted of possession of more than900 grams of a substance containing cocaine with the intent to deliver. Butler, 304 Ill. App. 3d at754. The cocaine had been diffused into liquid, which could have been wine, and placed inchampagne bottles. The total weight of the liquid exceeded 900 grams; however, a forensic chemisttestified that cocaine compromised only 29% of the liquid. There was no testimony as to whetherthe cocaine was to be ingested with the liquid or whether it was to be separated at some later time. On appeal, the defendant argued that the trial court erred in including the weight of the liquid infinding that she possessed over 900 grams of a substance containing cocaine. The First Districtrejected this argument, treating the issue as one of statutory construction. Butler, 304 Ill. App. 3dat 758-59. It first noted that section 401(a)(2)(D) of the Controlled Substances Act, which containsa provision identical to the one at issue in this case, states that a person violates that section if he orshe possesses 900 grams or more of a " 'substance containing cocaine.' " Butler, 304 Ill. App. 3d at758, quoting 720 ILCS 570/401(a)(2)(D) (West 1996). Relying on this plain language, the FirstDistrict reasoned that the liquid in which the cocaine was diluted was a substance containing cocaineand was therefore properly included in determining the weight of the substance that the defendant wascharged with possessing. The court also rejected the defendant's argument that it should apply the"market-oriented" approach used by the federal courts, in which consumption is the dispositive factorin determining weight. Butler, 304 Ill. App. 3d at 759.

In a well-reasoned dissent, Presiding Justice Hourihane warned that the majority's approachhad "the disturbing potential for greatly disparate sentences for possession of the same amount of ausable drug, depending on the manner in which it is packaged for shipment." Butler, 304 Ill. App.3d at 762 (Hourihane, P.J., concurring in part and dissenting in part). The dissent noted that, ininterpreting a statute, a court will presume that the legislature did not intend to produce unjust results. Butler, 304 Ill. App. 3d at 762 (Hourihane, P.J., concurring in part and dissenting in part). Further,the dissent read Mayberry as implicitly recognizing the market-oriented approach. Butler, 304 Ill.App. 3d at 761 (Hourihane, P.J., concurring in part and dissenting in part). Like the dissent,defendant here argues that the supreme court adopted the market-oriented approach in Mayberry. While we share the concerns articulated by the dissent, we will not go so far as to conclude that thesupreme court adopted the market-oriented approach, for, as the Butler majority held, such anapproach would conflict with the plain language of the statute.

Mayberry, nevertheless, is dispositive of this appeal, and Butler is distinguishable. InMayberry, the statute survived an equal protection challenge because the intentional mixing of drugswith other substances creates a conceivable danger that the legislature could have rationally soughtto address in promulgating the statute. A drug, when mixed with another substance, could reachmore people. In the instant case, however, we are not confronted with an intentional mixing of thedrug for some purpose associated with its use or marketing. Rather, we are dealing with anunintentional adulteration of the substance. We see no way that, once the ecstacy was soaked withdefendant's bodily fluids, it became more marketable or could reach a greater number of people. Infact, the converse is likely true. Thus, the unintentional adulteration of the ecstacy caused noenhanced danger that is apparent to us. Without some enhanced danger, the rationale of Mayberryfalls away. No rational basis exists for the legislative scheme.

Thus, although we do not read Mayberry as adopting the market-oriented approach per se,its rationale requires the mixing of the drugs with another substance to cause the drug to be moreharmful in some way. One way, as the Mayberry court observed, would be to allow for distributionto a greater number of people. Mayberry, 63 Ill. 2d at 9. However, we cannot say that this is theonly way in which mixing could enhance a drug's dangerousness. For example, the scenario that thecourt confronted in Butler suggests that mixing the drug with another substance may make it moredifficult to recognize the drug, thereby hampering law enforcement and permitting easier importation.

In Butler, of course, there was no evidence indicating whether the cocaine had been mixedwith the liquid for distribution, consumption, or merely to conceal it for importation. If the drugs inButler were mixed with the liquid solely for importation, there is a superficial similarity betweenButler and the instant case. The drugs at issue in this case became adulterated with a liquid as aconsequence of how they were concealed for importation. However, in Butler, it is inferrable thatthe cocaine was deliberately mixed with the liquid, while in the instant case, the mixing wasaccidental. That the mixing was purposeful in Butler makes it further inferrable that the mixingserved some function regarding the use, marketing, or at least importation of the drug. Because itmade at least one of these things easier or more efficient, the mixing made the drug more dangerousin some sense. Accordingly, in the scenario presented in Butler, the rationale underlying theMayberry decision continued to apply. Conversely, in the present case, the mixing was accidental andthe same series of inferences does not follow. Because the mixing made the drug no more dangerous,Mayberry's rationale is not applicable.

We therefore hold that, where a controlled substance is unintentionally adulterated, the weightof the adulterating agent must be discounted. Defendant's conviction must be modified to the lesserincluded offense of controlled substance trafficking based on possession of between 50 and 200 gramsof MDMA, a Class 1 felony. See 720 ILCS 570/401(c)(11) (West 2000); 730 ILCS 5/5--8--1(a)(4)(West 2000).

III. CONCLUSION

In light of the foregoing, the judgment of the circuit court of Lake County is affirmed asmodified. We remand this cause for resentencing.

Affirmed as modified; cause remanded.

BYRNE and KAPALA, JJ., concur.