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SECOND DIVISION
OCTOBER 6, 1998

JUSTICE COUSINS delivered the opinion of the court:

The defendant, Marcel Rhoden, was charged with multiplecounts of felony murder, attempt (armed robbery), attempt(robbery), home invasion, and other offenses. He opted for abench trial. At the close of the State's case, the trial courtdenied a defense motion for a directed finding of not guilty forattempt (armed robbery) among other charges. The trial courtgranted the motion as to attempt (robbery). At the end of thecase, the trial court found the defendant guilty of homeinvasion, three counts of attempt armed robbery, and two countsof felony murder, inter alia. The trial court vacated the homeinvasion conviction together with the felony murder convictionbased upon it. The defendant was sentenced to a 35-year term forthe felony murder conviction that was based on attempt (armedrobbery) and to 15 years for each of the three attempt (armedrobbery) convictions. The attempt (armed robbery) prison termswere to run consecutively to the felony murder term butconcurrently with each other.

The defendant contends that the trial court erred by (1)convicting him of attempt (armed robbery) and felony murder sincethis was inconsistent with his acquittal on attempt (robbery)charges; (2) convicting him of felony murder when the personkilled was a fellow robber; (3) convicting him of multiple countsof attempt (armed robbery) when, he claims, there was only oneact; (4) sentencing him for attempt (armed robbery) when thatcrime was a lesser included offense of the felony murder; (5)making the attempt (armed robbery) sentences consecutive to,rather than concurrent with, the felony murder sentence; and (6)not giving him credit for time served for the period that hespent in the custody of the Federal Bureau of Investigations(FBI) in another state.

BACKGROUND

On June 3, 1994, the defendant and his friend Paul Wrigleywent to the condominium of James Moy. Moy knew the defendant andWrigley, whom he previously had hired to wash and detail hisJeep. Wrigley and Moy had fallen out when Wrigley borrowed Moy'sJeep and returned it late.

Moy lived with Russell Laos and Norma Sula, Laos'girlfriend. At the time of the crime, the three residents werein the condominium along with Nelson Santiago and SantosEchevarria. All except Nelson Santiago testified at trial. Their testimony presents the following picture of events.

The defendant and Wrigley knocked on the door at about 6p.m.. Laos started to unlock the door. However, before he couldfinish, the defendant and Wrigley pushed the door in, breakingthe bolt. With guns drawn, they pushed Laos into the livingroom, where Santiago and Echevarria were. The defendant andWrigley demanded "Where's the money, where's the gold?" Theyforced Laos and Santiago to the ground. In attempting to forceEchevarria to the ground, the defendant hit him in the back withhis gun, which discharged, grazing Echevarria's back and hittingWrigley in the leg. As the defendant attended to his companion,Laos and Echevarria fled to other parts of the condominium. Thedefendant helped Wrigley, who was bleeding profusely, out of thecondominium and back into their car.

The defendant testified that at first Wrigley asked not tobe taken to the hospital because there were outstanding warrantsfor his arrest. He drove Wrigley to their apartment and calledhis girlfriend, Shava Langston. She met the defendant and theyagreed that she would take Wrigley to the emergency room at alocal hospital. She took him to the hospital, but he died thatevening from internal bleeding.

Wrigley's mother, Ivy Lewis, identified the body at themorgue that night. Later, about 2 a.m., she called the defendantand asked where her son was. The defendant said that Wrigley hadstepped out and would be back soon. When Lewis told him that herson was in the morgue, the defendant replied: "Lord Jesus Christ,police going to lock me up."

The defendant flew to New York the next day and then went toJamaica in August. He came back to the United States in January1995 and found work in a hardware store in East Chester, NewYork.

An Illinois warrant was issued for the defendant's arrest onJune 6, 1994. FBI agents arrested the defendant in New York onthis warrant on July 25, 1995. He was returned to Illinois onAugust 26, 1995, and was indicted on September 29, 1995. At theclose of the State's case, the court denied a defense motion fora directed acquittal for attempt (armed robbery), among othercharges, but granted a directed acquittal on the charge ofattempt (robbery). The defendant was convicted of, inter alia,home invasion, three counts of attempt (armed robbery), and twocounts of felony murder.

The trial court vacated the home invasion conviction and thefelony murder conviction based upon it. The defendant wassentenced to a term of 35 years' incarceration for the felonymurder that was based on attempt (armed robbery) and 15 years foreach of the three convictions for attempt (armed robbery). Theattempt (armed robbery) sentences were to run concurrently witheach other, but consecutively to the felony murder sentence.

The defendant appeals his convictions and sentences. Hecontends (1) that his felony murder conviction should be reversedon the ground that the felony murder rule does not apply when thedeceased is a partner in the crime; (2) that his convictions forattempt (armed robbery) and felony murder must be reversedbecause they are inconsistent with his acquittal on the predicateoffense of attempt (robbery); (3) that he should not have beenconvicted of three counts of attempt (armed robbery) since hemade only one attempt;(4) that he should not have been sentencedfor attempt (armed robbery) since this crime was a lesserincluded offense of the felony murder; (5) that the trial judgeerred in making the attempt (armed robbery) sentences consecutiveto, rather than concurrent with, the felony murder sentence; and(6) that the judge erred in not taking into account the time thathe was in the custody of the FBI in New York when calculating hiscredit for time served.

We affirm in part, reverse in part, and remand the case forfurther proceedings.

ANALYSIS

The defendant argues that Wrigley's death cannot serve asthe basis for a felony murder conviction because Wrigley was acofelon. We disagree. Subsequent to the filing of briefs inthis case the supreme court decided People v. Dekens, 182 Ill. 2d247, 695 N.E.2d 474 (1998). In our view, Dekens is dispositiveof this issue.

In Dekens, the defendant was charged with criminal drugconspiracy, attempt (armed robbery) and felony murder. Thedefendant moved to dismiss the felony murder charge on the basisthat the decedent was a cofelon who was shot by the intendedvictim of the robbery. The trial court denied the motion todismiss the felony murder count. Dekens was convicted of felonymurder, and this conviction was upheld by the Illinois SupremeCourt. Dekens, 182 Ill. 2d at 253, 695 N.E.2d at 477.

Illinois follows the "proximate cause" theory of liabilityfor felony murder. People v. Lowery, 178 Ill. 2d 462, 465, 687N.E.2d 973 (1997). Under this theory, one is held accountablefor any death that is proximately caused by the commission of aforcible felony.

The law in Illinois has long been that the identity of thekiller is not relevant for the purposes of felony murder. Peoplev. Allen, 56 Ill. 2d 536, 309 N.E.2d 544 (1974). Dekens holdsthat, under the proximate cause theory of liability, the identityof the victim also is immaterial. Dekens, 182 Ill. 2d at 252,695 N.E.2d at 477.

The only distinction between Dekens and the instant case isthat in Dekens the intended victim shot the decedent, whereas, inthis case, the decedent's accomplice fired the shot. But therationale for the application of the felony murder rule in theinstant case is even stronger than in Dekens, since the personbeing prosecuted is the person who fired the shot.

Defendant next contends that his convictions for attempt(armed robbery) and felony murder must be reversed because theyare inconsistent with his acquittal of the underlying offense ofattempt robbery. We disagree.

The view as to what constitutes inconsistent jury verdictsand inconsistent bench findings and what the consequences shouldbe has been meandering and conflicting. See Annot., Inconsistencyof Criminal Verdict with Verdict on Another Indictment orInformation Tried at the Same Time, 16 A.L.R.3d 866 (1967).

"Our Supreme Court resolved some of these issues [regarding jury verdicts] in People v. Hairston, 46 Ill. 2d 348, 263 N.E.2d 840 [(1970)], when it held that the judgment entered on guilty verdicts on two charges of solicitation (to murder) would not be set aside despite the fact that the samejury found defendant not guilty of two charges each of murder and attempted murder arising from the same incidents." People v. Pearson, 16 Ill. App. 3d 543, 547, 306 N.E.2d 539 (1973), citing Hairston, 46 Ill. 2d 348, 263 N.E.2d 840 (1970).

We note that in Hairston the court wrote: "[i]n law there isno inconsistency in verdicts of acquittal and conviction uponchargews of crimes composed of different elements, but arisingout of the same state of facts." (Emphasis added.) 46 Ill. 2d at362, 263 N.E.2d at 849.

Illinois cases recognize two types of inconsistency: logicalinconsistency and legal inconsistency. Verdicts are logicallyinconsistent if they "acquit and convict a defendant of crimescomposed of different elements, but arising out of the same setof facts." People v. Klingenberg, 172 Ill. 2d 270, 274, 665N.E.2d 1370 (1996). Verdicts are legally inconsistent if theynecessarily involve the conclusion that the same essentialelement or elements of each crime were found both to exist andnot to exist. People v. Murray, 34 Ill. App. 3d 521, 531, 340N.E.2d 186 (1975).

In support of his contention, the defendant cites People v.Pearson, 16 Ill. App. 3d 543, 306 N.E.2d 539 (1973). In Pearson,the reviewing court conducted an in-depth analysis of trial courtlegally inconsistent findings and wrote:

"In order to determine whether the crimes charged against the instant defendant--aggravated assault and armed violence--are composed of the same or different elements, it is necessary to consider not only the statutory definitions of those crimes, but also the proof adducedby the State at this particular trial. The statutory elements of armed violence, of which defendant was found not guilty, are that defendant performed 'an act prohibited by [section 12-2 (aggravated assault)]' ' while armed with a dangerous weapon.' (Ill. Rev. Stat. 1971, ch. 38, par. 33a- 2.)The elements of aggravated assault include the elements of assault, Ill. Rev. Stat. 1971, ch. 38. par. 12--1, plus one of the ten factors of aggravation--in this case the use of a deadly weapon ***. The elements of assault as pertinent to this case are that the defendant '[1] without lawful authority' '[2] engages in conduct [3] which places another in reasonable apprehension of receiving a battery,' i.e., 'bodily harm.'" Pearson, 16 Ill. App. 3d at 547-48, 306 N.E.2d at 542.

In Pearson the court further wrote:

"On the evidence presented to the trier of fact, there is no possible factual basis for proving that defendant placed another in reasonable apprehension of receiving a battery other than the testimony that defendant had a gun in his possession.***

*** The elements of aggravated assault and armed violence are identical, and the proof that would suffice to convict for one offense, being precisely the same, would equally support conviction of the other. The findings of not guilty of armed violence and guilty ofaggravated assault are therefore 'legally inconsistent,'and the convictions may not stand." (Emphasis added.)Pearson, 16 Ill. App. 3d at 548, 306 N.E.2d at 543.

Notably, the charges in Pearson, armed violence andaggravated battery, involved identical elements. Thus, thefindings of not guilty of aggravated assault were legallyinconsistent in toto.

But Pearson is dissimilar from the case sub judice in that attempt (armed robbery) and attempt (robbery) in the instant casedo not involve all of the same identical elements. Attempt(robbery) contains one less element and is therefore the lesserincluded offense of attempt (armed robbery). 720 ILCS 5/2--9(West 1994). Moreover, because the facts are undisputed in theinstant case that the offender had in his possession a gun at alltimes during the commission of the attempt (robbery), no trialjudge could enter judgment against the defendant for the offenseof attempt (robbery). People v. Donaldson, 91 Ill. 2d 164, 435N.E.2d 477 (1982) (When a defendant is found guilty of twocrimes, one of which is a lesser included offense of the other,the court must enter judgment and sentence only on the moreserious offense). Moreover, had the instant case been triedbefore a jury and the same evidence adduced, the trial judgecould have refused to allow the jury to even consider the offenseof attempt (robbery). People v. Teague, 108 Ill. App. 3d 891,906, 439 N.E.2d 1066 (1982) ("where the evidence shows theaccused is either guilty of the higher offense or not guilty ofany offense, an instruction on the lower offense is unnecessaryand properly refused").

In the instant case, the defendant, in addition to citingPearson, 16 Ill. App. 3d 543, 306 N.E.2d 539, also cites Peoplev. Klingenberg, 172 Ill. 2d 270, 665 N.E.2d 1370 (1996), tosupport the argument that acquitting a defendant of a predicateoffense is legally inconsistent with finding the defendant guiltyof the compound offense and requires that the conviction of thecompound offense be reversed. Klingenberg, 172 Ill. 2d at 275,665 N.E.2d at 1376. The State responds with the contention thatKlingenberg involved a jury trial, while the instant caseinvolves a bench trial. The State further argues that theholding in Klingenberg that legally inconsistent jury verdictscannot stand is predicated on the premise that legallyinconsistent verdicts are unreliable because they show confusionor misunderstanding, whereas it cannot be inferred that the trialjudge in the instant case was confused about the proof requiredto convict for attempt (armed robbery) and attempt (robbery).

In Klingenberg a school superintendent was charged withtheft and official misconduct. The jury convicted him of thelatter but acquitted him of the former. Since a verdictconvicting a defendant of a compound offense but acquitting himof the predicate offense is legally inconsistent (People v.Frias, 99 Ill. 2d 193, 457 N.E.2d 1233 (1983)), the court inKlingenberg held that reversal of the conviction was proper.Klingenberg, 172 Ill. 2d at 282, 665 N.E.2d at 1376.

In this case, as in Klingenberg, the defendant has beenconvicted of a compound offense, attempt (armed robbery), andacquitted of a predicate offense, attempt (robbery). Under thefacts of this case, these findings are legally inconsistent. Thequestion that confronts us is whether Klingenberg has per seapplicability in bench trials.

The State argues that Klingenberg does not have per seapplicability in bench trials. The State cites People v.O'Malley, 108 Ill. App. 3d 823, 439 N.E.2d 998 (1982). The Statefurther argues that the record in the instant case indicates arational basis for the trial court's act and, therefore,defendant's conviction for felony murder and attempt (armedrobbery) must be affirmed notwithstanding defendant's acquittalof the lesser included offense of attempt (robbery). SeeO'Malley, 108 Ill. App. 3d at 833, 439 N.E.2d at 1004.

In O'Malley, the only difference between the elements of thetwo crimes was that official misconduct required that the personcommitting assault and battery be a public employee acting in hisofficial capacity. It was uncontroverted and the evidenceestablished that the defendant was a public employee on the job.In O'Malley, after a bench trial a Cook County forest preserveranger was convicted of assault and battery and acquitted ofofficial misconduct. The defendant appealed his conviction onthe grounds of legally inconsistent verdicts. O'Malley, 108 Ill.App. 3d at 833, 439 N.E.2d at 1004.

We believe that the vice of inconsistency is that it impliesconfusion on the part of the trial judge sitting as the finder offact. See O'Malley, 108 Ill. App. 3d at 831, 439 N.E.2d at 1004. O'Malley rejected defendant's argument that his conviction mustbe reversed because of the inconsistent findings by the trialjudge. O'Malley, 108 Ill. App. 3d at 833, 439 N.E.2d at 1004. O'Malley, in affirming the inconsistent findings by the trialjudge, enunciated the following rationale:

"Legal inconsistency in the finding should not, on a per se basis, require reversal of the conviction. Inconsistency is only one element to consider in determining the existence of proof beyond a reasonable doubt. When, as in the present case, there is a rational explanation for the inconsistent finding other than confusion, the inconsistency will not contribute to a determination that defendant was not proved guilty beyond a reasonable doubt. Trial judges can assist appellate review by explaining their findings on the record." O'Malley, 108 Ill. App. 3d at 833, 439 N.E.2d at 1004.

In Klingenberg, the court based its holding on the case ofPeople v. Frias, 99 Ill. 2d 193, 457 N.E.2d 1233 (1983). Friasheld that legally inconsistent jury verdicts could not stand, dueto principles of collateral estoppel. While the Klingenbergcourt adopted the Frias holding, it disavowed the collateralestoppel rationale, since later supreme court cases hadestablished that collateral estoppel properly only applies wherethere are two proceedings. Klingenberg, 172 Ill. 2d at 281, 665N.E.2d at 1376. The Klingenberg court's substitute rationale wasthat legally inconsistent verdicts "suggest confusion ormisunderstanding on the part of the jury." Klingenberg, 172 Ill.2d at 281, 665 N.E.2d at 1376.

We note that in Frias the court cited the United StatesSupreme Court case of Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d469, 90 S. Ct. 1189 (1970). We further note that in Ashe theCourt stated that "the rule of collateral estoppel in criminalcases is not to be applied with the hypertechnical and archaicapproach of a 19th century pleading book, but with realism andrationality." Ashe, 397 U.S. at 444, 25 L. Ed. 2d at 475, 90 S.Ct. at 1194. Similarly, we believe that the rule of legalinconsistency in criminal cases is not to be applied with thehypertechnical and archaic approach of a nineteenth centurypleading book, but with realism and rationality.

In our view, while legally inconsistent findings in acriminal trial may, on occasion, indicate confusion on the partof the trial judge, there is not the same compelling reason toapply a per se rule in the context of a bench trial as there isin the context of a jury trial. This is so because a courtreviewing a jury verdict generally lacks a sufficient basis todetermine if the jury was confused. However, a reviewing court,by examining the trial record, may often ascertain whether ajudge sitting as finder of fact was confused in making his or herdisposition of a charge or charges. Moreover, in a bench trial,the trial judge is presumed to know the law. People v. Buchanan,211 Ill. App. 3d 305, 322, 570 N.E.2d 344 (1991).

Accordingly, for the foregoing reasons, we hold that in abench trial, if there is a rational basis for the court'sjudgment, and an examination of the record as a whole indicatesthat there was not confusion, legally inconsistent findings by atrial judge may stand. O'Malley, 108 Ill. App. 3d at 833, 439N.E.2d at 1004. In the instant case, the trial court's acquittalon the attempt (robbery) charge was consistent with the trialcourt's recognition that, on the facts of the case, the defendantwas either guilty of the larger offense or not guilty.

The defendant additionally argues that it was premature forthe judge, in essence, to find that the defendant had a gun. Weagree that a directed finding before the defendant rests ispremature and error. The preferred procedure would have been forthe trial court to have denied the motion for directed findingson both attempt (robbery) and attempt (armed robbery), and then,at the end of the case, to have merged the attempt (robbery)conviction into the attempt (armed robbery) conviction. However,we hold that such error was harmless in this case.

Since we conclude that the legally inconsistent findings inthe instant case were not the result of confusion as to whetherthe defendant has been proven guilty of all of the elements ofattempt (armed robbery) and felony murder, we agree with theState that legally inconsistent findings do not mandate reversalof the convictions of attempt (armed robbery) and felony murder.

Defendant next contends that two of his three attempt (armedrobbery) sentences must be overturned, since he has beensentenced more than once for precisely the same act, in violationof the "one-act-one-crime" rule set forth in the followingpassage from People v. King, 66 Ill. 2d. 551, 363 N.E.2d 838(1977):

"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. 'Act,' when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense." King, 66 Ill. 2d. at 566, 363 N.E.2d at 844.

In People v. Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305(1996), the court distilled the King holding into a two-parttest: First the court should look to see if the multipleoffenses are predicated on precisely the same physical act. Ifso, then multiple sentences are not proper. If the crimes arebased on more than one physical act, the court must thendetermine whether any of the offenses is a lesser includedoffense of another. If so, then multiple sentences are notproper.

The State concedes that three sentences are not warranted,but argues that two should be upheld, because the defendant's useof force against Echevarria and his threat of force against theother men constituted two acts for the purposes of the King rule. We agree on this issue. The defendant's battery upon Echevarriaand his threats to the others were two outward manifestationswhich would support different offenses. Nevertheless, on thisissue, as the State concedes, one of the convictions for attempt(armed robbery) should be vacated under King.

Even so, the defendant further contends that the attempt(armed robbery) convictions must be vacated as lesser includedoffenses of the felony murder count. We agree. In People v.Washington, 272 Ill. App. 3d 913, 651 N.E.2d 625 (1995), we heldthat "in the case of felony murder, the underlying felony is alesser included offense because the felony is established byproof of the same or less than all of the facts required toestablish the offense of the felony murder." Washington, 272 Ill.App. 3d at 919, 651 N.E.2d at 630. In People v. Prince, 288 Ill.App. 3d 265, 278, 681 N.E.2d 521 (1997), moreover, wespecifically held that attempt (armed robbery) was a lesserincluded offense of a felony murder count that was predicated onthe attempt (armed robbery).

The State argues in response that under the charginginstrument approach adopted in People v. Novak, 163 Ill. 2d 93,643 N.E.2d 762 (1994), in order for one crime to be a lesserincluded offense of another, its elements must be described inthe charging instrument of the greater. The State urges thatmerely naming the offense is not enough, citing a passage inNovak: "The 'lesser offense must have a broad foundation in theinstrument charging the greater,' or at least 'set out the mainoutline of the lesser offense.'" Novak, 163 Ill. 2d at 107, 643N.E.2d at 770. This language quoted in Novak is from People v.Bryant, 113 Ill. 2d 497, 505, 499 N.E.2d 413 (1986). Significantly, Bryant goes on to say in the very same paragraphthat the fact "that the indictment did not expressly allege allthe elements of the lesser offense is not, in our view, fatalunder these circumstances," noting prior cases where "the lesseroffense, theft, was simply named in the charging instruments,and, taken with the evidence introduced at the defendants'trials, *** was found sufficient to warrant instructions on thelesser offenses." Bryant, 113 Ill. 2d at 505, 499 N.E.2d at 417. Consequently, in our view, the court in Novak did not hold thatit was necessary for the instrument charging a greater offense todescribe, as opposed to name, the lesser offense.

The State did not specify which count of attempt (armedrobbery) was the predicate for the charge of felony murder. Additionally, under the charging instrument approach, attempt(armed robbery) is a lesser included offense of felony murder. Therefore, the defendant's convictions and sentences for attempt(armed robbery) must be vacated. People v. Smith, No. 84047,slip op. at 5-6 (October 1, 1998), citing King, 66 Ill. 2d 551;Rodgriguez, 169 Ill. 2d at 186.

Next, defendant contends that his sentences for attempt(armed robbery) should run concurrently to, rather thanconsecutively with, his sentence for felony murder. As we haveheld that all three convictions of attempt (armed robbery) mustbe vacated, it is not necessary for us to examine the issue.

Finally, we turn to defendant's contention that the trialcourt erred in not taking into account the time that he was incustody in New York in determining credit for time served. TheState argues that the defendant has waived this issue because hedid not raise it at trial or in a postsentencing motion. TheState correctly observes that a defendant should make anychallenges to the correctness of a sentence or a sentencinghearing by written motion within 30 days of the sentence. Peoplev. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997).

Nevertheless, under Supreme Court Rule 615, "[p]lain errorsor defects affecting substantial rights may be noticed althoughthey were not brought to the attention of the trial court." 134Ill. 2d R. 615(a). Since the "right to be lawfully sentenced isa substantial right," "impermissible or illegal sentences may beattacked on appeal as plainly erroneous even though no post-sentencing motion was filed." People v. Whitney, 297 Ill. App. 3d965, 967, 697 N.E.2d 815, 817 (1998); see People v. Washington,297 Ill. App. 3d 790, 796-97, 697 N.E.2d 1241, 1246 (1998). Wehold that the issue has not been waived in this case.

In our view, the proper date from which to calculate thecredit for time served is the date on which the defendant waivedextradition. People v. Gardner, 172 Ill. App. 3d 763, 768, 527N.E.2d 155 (1988). But since, as the State notes, "the recorddoes not reflect whether or when defendant waived extradition,"we remand for the purpose of determining the proper sentencingcredit.

For the reasons set forth, we affirm the defendant'sconviction for felony murder; we vacate the defendant'sconvictions and sentences for attempt (armed robbery); and weremand for the determination of proper credit for time served.

Affirmed in part and reversed in part; cause remanded withdirections.

RAKOWSKI and McNULTY, JJ., concur.