author: PRESIDING JUSTICE SCARIANO

text:
    AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, Petitioner, v. THE ILLINOIS LOCAL LABOR RELATIONS BOARD et al., Respondents. — THE COUNTY OF COOK et al., Petitioners and Cross-Respondents, v. THE ILLINOIS LOCAL LABOR RELATIONS BOARD, Respondent (American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO, Respondent and Cross-Petitioner).
    First District (2nd Division)
    Nos. 1 — 89—1392, 1—89—1981, 1 — 89—2017 cons.
    Opinion filed October 22, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Local Labor Relations Board.
    J. Dale Berry and Mark S. Stein, both of Cornfield & Feldman, of Chicago, for American Federation of State, County & Municipal Employees.
    Cecil A. Partee, State’s Attorney, of Chicago (Thomas H. Riley, Jr., Iris E. Sholder, and Joan S. Cherry, Assistant State’s Attorneys, of counsel), for County of Cook/Sheriff of Cook County.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Council 31 of the American Federation of State, County, and Municipal Employees (AFSCME) seeks review of the Illinois Local Labor Relations Board’s (Board’s) partial dismissal of its representation petition in which it requested certification as the bargaining agent of a unit consisting of the sergeants, lieutenants and captains employed by the Cook County Department of Corrections (Department) and the sheriff of Cook County (Joint Employers). AFSCME claims that the Board erred in holding that the lieutenants and captains were “supervisors” under section 3(r) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1603(r)), and were thereby wrongfully denied inclusion in a bargaining unit with the sergeants. AFSCME asks that the Board’s decision be reversed and that this cause be remanded with directions to the Board to hold an election among all three ranks on the issue of AFSCME’s representation; in the alternative, it asks that the cause be remanded for the purpose of making a finding as to whether the lieutenants and captains devote a “preponderance of time” to exercising supervisory authority.

The Joint Employers petition for review of the Board’s certification of AFSCME as the sergeants’ bargaining representative, claiming that the Board erred in holding that the sergeants were not supervisors, and asking that the Board’s certification be reversed.

Following a hearing on AFSCME’s representation petition, a hearing officer made numerous findings of fact and recommended to the Board that it find that neither the sergeants, lieutenants nor captains were supervisors, and that all three ranks be afforded an opportunity to vote on whether they wished to be represented in a bargaining unit by AFSCME. In reviewing these recommendations, the Board summarized the role and structure of the Department as follows:

“The *** Department *** is a very large organization which operates the Cook County Jail. The jail *** houses in excess of 5200 inmates, mostly criminal defendants held for trial in the Circuit Court of Cook County. The [Department] is organized in several divisions and sections, and employs approximately 1776 correctional officers.
The correctional officers have the initial responsibility for securing the jail complex and guarding the individuals incarcerated there. *** Above the correctional officers in the [Department’s] paramilitary chain of command are the sergeants, then the lieutenants, and then the captains. There are 112 sergeants, 44 lieutenants, and 16 captains. Typically, each higher rank is responsible for a larger area of the institution.
The captains report to divisional Superintendents, who report to a Director of Security, who reports to the [Department’s] Executive Director. The Executive Director is appointed by and reports to the Sheriff, an elected County official.”

While adopting the hearing officer’s findings of fact and his recommendation that the sergeants be found not to be supervisors, the Board rejected his recommended finding that the lieutenants and captains were not supervisors. Accordingly, on April 26, 1989, the Board dismissed AFSCME’s representation petition in part, granted it in part and directed that an election be conducted only among the sergeants. The sergeants voted in favor of certification, and the Board, on June 28, 1989, certified AFSCME as their bargaining representative.

We take up first the question of whether we have jurisdiction to hear AFSCME’s petition for review of the Board’s April 26, 1989, partial dismissal of its representation petition. Section 9(i) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1609(i)) states that “An order of the Board dismissing a representation petition *** is a final order. Any person aggrieved by any such order *** may apply for and obtain judicial review in accordance with the provisions of the Administrative Review Law [(Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.)] *** directly in the Appellate Court ***.” The issue, then, is whether the Board’s partial dismissal of AFSCME’s representation petition was “dismiss[al of] a representation petition.” We hold that it was not.

Prior to the effective date of section 9(i) of the Act, the Board’s dismissal of a representation petition was judicially reviewable pursuant to section 11(e) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e)) “in accordance with the provisions of the Administrative Review Law” (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.), as a “final order *** denying in whole or in part the relief sought”; and a “final order,” for the purposes of the Act, was defined to be the same as an “[administrative decision” under section 3 — 101 of the Administrative Review Law, because it “affectfed] the legal rights, duties or privileges of parties and *** terminate[d] the proceedings before the administrative agency.” Laborer’s International Union of North America, Local 1280 v. Illinois State Labor Relations Board (1987), 154 Ill. App. 3d 1045, 1052-54.

A partial dismissal, however, does not “terminate[ ] the proceedings before the administrative agency.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101.) Section 9(i), while listing several other types of orders as final and which are therefore judicially reviewable under the Administrative Review Law, is not inconsistent with the definition given by the Laborer’s International Union court. Moreover, neither the United States Supreme Court nor most State courts that have construed similar statutory schemes have considered as final those orders which merely determine the composition of a unit in a representation/certification proceeding and direct that an election be held, regardless of whether the challenge comes from the administrative agency or the prospective representative. We therefore hold that we have no jurisdiction over AFSCME's petition from the Board's April 26, 1989, order. See Boire v. Greyhound Corp. (1964), 376 U.S. 473, 476-77, 11 L. Ed. 2d 849, 852-53, 84 S. Ct. 894, 896-97; Five-County Joint Juvenile Detention Center v. State Employment Relations Board (1991), 57 Ohio St. 3d 4, 565 N.E.2d 546; Indiana Education Employment Relations Board v. Benton Community School Corp. (1977), 266 Ind. 491, 505, 365 N.E.2d 752, 759; Harrison v. Labor Relations Comm’n (1973), 363 Mass. 548, 551, 296 N.E.2d 196, 198; Division of State Lands Employees Association v. Division of State Lands (1985), 72 Or. App. 559, 561-64, 696 P.2d 578, 578-80; Renton Education Association v. Washington State Public Employment Relations Comm’n (1979), 24 Wash. App. 476, 479, 603 P.2d 1271, 1272-73; Lincoln County Memorial Hospital v. Missouri State Board of Mediation (Mo. Ct. App. 1977), 549 S.W.2d 665, 669; Panama City v. Florida Public Employees Relations Comm’n (Fla. Dist. Ct. App. 1976), 333 So. 2d 470, 471; but see Civil Service Employees Association, Inc. v. Helsby (1969), 31 A.D.2d 325, 329-30, 297 N.Y.S.2d 813, 817-18, aff’d (1969), 24 N.Y.2d 993, 250 N.E.2d 230, 302 N.Y.S.2d 822.

We next consider the Joint Employers’ argument that AFSCME was not “aggrieved” by, and thus has no standing to challenge, the Board’s June 28, 1989, certification of it as the representative of the sergeants, and its insistence that we have no jurisdiction over AFSCME’s “cross-petition” from that order, filed in response to the Joint Employers’ petition for review of the certification. We hold that AFSCME clearly has standing to petition from the Board’s order of June 28, 1989, since it granted AFSCME only part of what it had petitioned for and was the “final order” from which it was entitled to seek judicial review under section 9(i) of the Act. However, because the issues raised in the “cross-petition” are the same as those raised in AFSCME’s petition from the certification, we need not determine whether we have jurisdiction over the “cross-petition.”

Turning now to the merits of the case, we note that section 3(s)(l) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1603(s)(l)) states that “a bargaining unit determined by the Board shall not include both employees and supervisors, or supervisors only, except [under circumstances not here relevant].” Section 3(r) of the Act states:

“ ‘Supervisor’ is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. Except with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority ***.” Ill. Rev. Stat. 1987, ch. 48, par. 1603(r).

In reviewing the various contentions made by the parties in the case at bar, we are mindful that:

“Judicial review of the Board’s decision is governed by the provisions of the Administrative Review Law. [Citation.] That statute specifies that *** the agency’s findings and conclusions on questions of fact shall be held prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) Where the findings of fact are against the manifest weight of the evidence and it is clearly evident that the Board should have reached the opposite conclusion, the reviewing court may reverse the agency’s findings of fact. [Citation.] Where the question involved is one of law, such as the proper interpretation of a statute, the Board’s finding is not binding on the court.” City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507.

In challenging the Board’s determination that the sergeants were not supervisors, the Joint Employers first argue that because the Department is a “paramilitary organization,” there is no need for sergeants to devote a preponderance of their employment time to exercising supervisory authority. In support, they cite City of Freeport (135 Ill. 2d at 512), which noted, citing section 3(r) of the Act, that “police employees may qualify as supervisors even if they do not devote a preponderance of their employment time exercising their supervisory authority.” But the decision in Freeport had nothing to do with the Freeport police department’s having a “paramilitary structure” (135 Ill. 2d at 508), and the Joint Employers claimed neither before the Board nor in their petition to this court that the sergeants are engaged in police employment. Accordingly, we hold that the Board did not err in applying the “preponderance of time” test to the sergeants.

The Joint Employers next contend that the Board, when determining that the sergeants were not supervisors, made the following errors: (1) that its finding that the sergeants have no authority to discipline, suspend, evaluate, reward, or direct subordinates, or to recommend the discipline, suspension or promotion of subordinates, was against the manifest weight of the evidence; (2) that it erroneously failed to determine whether the sergeants’ exercise of these kinds of authority required the consistent use of independent judgment; and (3) that its finding that the sergeants do not satisfy the “preponderance” test was against the manifest weight of the evidence.

Preliminarily, we note that section 3(r) of the Act does not list “evaluate” among the types of authority which are supervisory in nature, and that such authority is relevant only to the extent that it bears on other statutory aspects of supervisory authority; we therefore need not consider any failure by the Board to recognize as supervisory any authority by the sergeants to “evaluate” subordinates. Next, an analysis of the Board’s opinion determining that the sergeants were not supervisors leads easily to the conclusion that this issue can be effectively dealt with by examining the Joint Employers’ third claim, namely, that the Board’s finding that the sergeants do not satisfy the “preponderance” test was against the manifest weight of the evidence, for even if the Joint Employers’ two other claims are sustainable, the sergeants’ failure to satisfy this test would not change the result.

The Board found that sergeants sometimes serve “as ‘shift commanders’ with ultimate responsibility for the security of a major unit of the [jail],” a duty which the Board found to require the consistent use of independent judgment. The Board held further, respecting the other types of authority granted to the sergeants:

“[E]ven if these activities by the sergeants [‘directpng] *** rewarding, promoting and disciplining of subordinates’] constitute the exercise of ‘supervisory’ authority [that is, that they may be exercised in the ‘interest of the employer *** [and their] exercise *** requires the consistent use of independent judgment’], it does not consume the ‘preponderance’ of their time.”

The Joint Employers do not claim that the amount of time spent by the sergeants in occasionally serving as shift commanders and in “rewarding, promoting and disciplining *** subordinates” should have been found to constitute a preponderance of the sergeants’ employment time; rather, they rely on the authority of sergeants to direct subordinates during the course of their daily work; this authority, they contend, allows the sergeants to qualify as supervisors when it is considered in conjunction with their remaining supervisory authority. The relevant questions, then, concern those claims made by the Joint Employers with regard to the Board’s alleged errors concerning the sergeants’ authority to direct their subordinates.

The hearing officer found that sergeants, when not serving as shift commanders, are

“generally assigned to certain areas [of the jail] *** and are charged with maintaining the security of those areas ***. [They] schedule recreation periods for some of the inmates housed in the cell blocks or wings within their division, and lunch reliefs for the [Correctional] Officers assigned to their area[,] *** [occasionally *** relieved an Officer at his post so that the Officer can take a breakf,] *** schedule and coordinate the various inmate movements which are to take place each day *** so as to insure that as few inmates as possible are in the corridors at any one time[,] *** tour their assigned areas checking that Officers are maintaining their posts in a proper fashion, assisting inmates attempting to obtain necessary toiletries and clothing, quelling disturbances between inmates and Officers, advising Officers of the best methods to complete tasks, and responding to any and all problems that may crop up in their assigned areas. [Citation.] Sergeants also *** initiate] ‘shakedowns’, that is, searches of wings and cell blocks for contraband and evidence of the beginnings of escape attempts ***. Sergeants are also responsible for *** checking to make sure Officers are patrolling their areas[, and] assist the Correctional Officers in feeding and moving the inmates, and watching the inmates when [they] are in the yard.”

The Joint Employers do not quarrel with the hearing officer’s findings about what activities constitute the sergeants’ usual daily work, but they do misapprehend how the Board dealt with these facts.

To begin with, the Board did not fail to find that the sergeants had the “authority” to direct subordinates; they recognized that they had this authority when serving as shift commanders. However, with reference to the remainder of their duties, the Board stated:

“Since the sergeants do not fulfill the test of ‘directing’ their subordinates, within the meaning of the Act, their time spent circulating through their territories in the jail cannot be counted toward the preponderance criterion. The sergeants do not have the same level of command responsibility, and are more like lead workers, touring their territories to make themselves available to assist and back up the correctional officers as needed.”

This finding does not refute that the sergeants, apart from their occasional role as shift commanders, had some authority to direct subordinates; rather, it expresses the Board’s conclusion that none of that authority required the consistent use of independent judgment and thus was not supervisory authority. The hearing officer had found that any authority the sergeants had to “direct” subordinates, outside their occasional role as shift commanders, did not require the consistent use of independent judgment. The Board, in determining that the sergeants’ authority could not be counted toward the “preponderance” criterion, left this finding undisturbed; and the Joint Employers’ claim that the Board failed to apply this criterion results from their misunderstanding of its opinion and of the hearing officer’s recommendations.

Accordingly, because the Joint Employers rely in this regard solely on the meritless claim that “the Board’s failure to apply the third part of the test, the ‘independent judgment prong,’ to the sergeants, is a misapplication of the Act,” and do not charge alternatively that if the Board had so found, such a finding would have been erroneous, they essentially leave the Board’s finding unchallenged. In any event, the record contains substantial evidence that much of the sergeants’ authority in this regard is guided by the Department’s operations manual and its general orders, and by the routine rotation of assignments and privileges, and is, as the Board found, “qualitatively and quantitatively more circumscribed than is that of the lieutenants and captains” when members of those ranks serve as shift commanders, a role in which they, according to the Board’s finding, have “substantial [responsibility] for giving assignments to subordinates” as well as “responsibility for *** assuring their [subordinates’] adherence to those assignments, *** evaluating their performance” and “ensuring the security of their units when they are present.” (See, e.g., Peru v. Illinois State Labor Relations Board (1988), 167 Ill. App. 3d 284, 293-94.) Consequently, the Joint Employers have provided no basis for the finding of any error in the Board’s failure to include this authority in its consideration of the “preponderance of time” criterion, and therefore they supply no predicate for overturning its judgment that the sergeants were not supervisors.

Finally, the Joint Employers claim that the Board’s finding that the sergeants are not supervisors “results in an intolerable deficiency of supervision over the correctional officers at the CCDOC. It is essential that there be a supervisory link between the rank-and-file and the top echelon, and that command authority not be impaired by requiring the employer to negotiate with the personnel constituting that link.” They cite City of Freeport v. Illinois State Labor Relations Board (1988), 169 Ill. App. 3d 151, aff’d (1990), 135 Ill. 2d 499, in support. City of Freeport held that “[t]he lieutenants and sergeants [of the Freeport police department] represent the only link between the rank-and-file of the department and the chief of police. *** [T]he Board *** fail[ed] to give due consideration to how a police department must function.” (169 Ill. App. 3d at 159.) The court made this statement, however, in the process of reviewing the question of whether the principal work of those officers was substantially different from that of their subordinates (169 Ill. App. 3d at 159); and, just as important, the Board’s finding in the case at bar that the sergeants met that part of the section 3(r) test has been conceded by the Joint Employers to “not [be] an issue in this case.” Accordingly, we affirm the Board’s determination that the sergeants are not “supervisors” under section 3(r) of the Act.

Turning now to AFSCME’s petition for review, it claims that the Board erred in finding that the lieutenants and captains have the authority to effectively recommend the discipline of subordinates because those ranks may only report their improper actions, and may not recommend that discipline in general, or that a particular sanction, be imposed.

The record shows that lieutenants and captains, when finding that a subordinate has violated rules or regulations, may complete one of two disciplinary action forms, thereby recommending either “summary punishment” for transgressions such as tardiness, minor disrespect for superiors or the wearing of an improper uniform, which ranges from an oral reprimand to a three-day suspension; or the recommendation may be for “major cause punishment,” if it stems from a more serious violation of the rules, and can vary from a 4- to a 29-day suspension. Lieutenants and captains may select which form to use, but do not recommend the specific punishment that should follow; instead, they report what they believe the subordinate to have wrongfully done or omitted to do and what regulations were violated. The forms are then sent to a superintendent, who determines whether and what summary punishment should be imposed, or, in the case of major cause punishment, determines whether to forward the report to the Director of Security for further action. AFSCME does not quarrel with the Board’s finding that the recommendations are not “typically *** rejected or ignored.” See Peru v. Illinois State Labor Relations Board, (1988), 167 Ill. App. 3d 284, 289-90.

The very act of completing and forwarding one of the two forms, however, is not just a recommendation that a subordinate be disciplined, but a recommendation that the officer receive a punishment within a particular range. Such authority goes far beyond that of the firefighter ranks in City of Davenport v. Public Employment Relations Board (Iowa 1978), 264 N.W.2d 307, 321, upon which AFSCME relies, who were held pursuant to a similar statute not to have the authority to discipline subordinates when they could press a charge with the fire chief against a subordinate, but whose power to do so was the same as that of any other member of the fire company. We therefore hold that the Board’s conclusion that lieutenants and captains have the authority to discipline subordinates was not against the manifest weight of the evidence.

AFSCME next argues that the Board erred in finding that the lieutenants and captains have the authority to effectively recommend the promotion of subordinates because their role is limited to evaluating and ranking subordinates, which evaluations comprise 50% of the score for correctional officers, 60% of the score for sergeants and 70% of the score for lieutenants; the remaining part of one’s score is determined by the results of an examination, and the Department’s Merit Board determines who is promoted. The rating for a subordinate is determined after a discussion by that officer’s superiors, who typically spend about 15 to 20 minutes discussing an officer’s performance and agreeing on a rating. While these ratings are reviewed by the superintendent, they are rarely changed.

While the lieutenants and captains do not specifically recommend that a particular subordinate be promoted, the rating they give and the extent to which that rating influences the promotion have the same effect. Further, the role of these ranks is much greater than that of the disputed ranks in City of Davenport, upon which AFSCME again relies in sole support of its position. Here, too, we cannot say that the Board’s determination was contrary to the evidence.

AFSCME’s next contention is that the Board erred in finding that lieutenants and captains, when serving as shift commanders, have the authority to direct subordinates and that they have the authority to use independent judgment when so engaged, claiming that these findings were against the manifest weight of the evidence. When acting as shift commanders, lieutenants and captains allocate personnel throughout the area over which they have control, inspect the uniforms of subordinates at roll call, inspect the structural condition of their divisions to determine what work needs to be done and to order that such work be completed, make sure that subordinates are properly doing their jobs, assign relief officers to guard inmates while other officers are at lunch, approve requests by subordinates for time off and tour their areas to insure that the needs of the inmates are being met, and that problems are being properly dealt with. Clearly, then, the Board did not improperly find that lieutenants and captains had the authority to direct subordinates; the more relevant consideration is whether this authority requires the consistent use of independent judgment.

The Board found that “[t]heir [lieutenants’ and captains’] independent judgment is also implicated by their overall responsibility for ensuring the security of their units when they are present. It may be true that, even as shift commanders, they do not often face situations calling for innovative or unguided judgments. However, ‘the relevant consideration is whether the commander has authority to exercise independent judgment and is expected to do so when necessary to direct the activities of his subordinates’ ” (quoting City of Freeport, 169 Ill. App. 3d at 160).

AFSCME asserts that the Board erred when it found that the lieutenants and captains satisfied the “consistent use of independent judgment” requirement in that it made its determination based upon the authority of those ranks to exercise independent judgment, rather than upon their use of such judgment. They point out that the court in City of Freeport, in affirming the appellate court decision quoted above, held that when applying the “independent judgment” criterion, the Board must determine “the number of times in which independent judgment might be required in performing a particular supervisory function. * * * [T]he fact that performance of such functions may occasionally require the ranking officer to use discretion or independent judgment is not sufficient ***.” As an example, the court cited the difference between a decision which is controlled by the existence of a particular set of facts, and a decision which requires the officer to “choose between two or more significant courses of action.” City of Freeport, 135 Ill. 2d at 520-21.

We note that the supreme court did not discuss any difference that might exist between its standard and the one laid down by the appellate court; nevertheless, using the language of the supreme court’s opinion as our guide, we hold that the record sufficiently supports a finding that when acting as shift commanders in charge of ensuring the security of their areas of the jail, and despite the existence of a host of rules and regulations governing life therein, lieutenants and captains consistently exercise independent judgment when allocating personnel, directing the repair of structural conditions, making assignments, approving requests by subordinates for time off, and resolving difficulties they discover when supervising the conditions of inmates, observing the relations between inmates and the correctional officers and sergeants having jurisdiction over them, and insuring that proper security conditions are maintained in their area. Although the authority of the lieutenants and captains is not unguided, it is far from “routine or clerical” (see section 3(r) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1603(r)), and thus requires them to consistently judge situations and to make decisions as to how to proceed.

Finally, AFSCME claims that the Board erroneously failed to apply the requirement that supervisors devote a preponderance of their employment time to exercising supervisory authority, and that it instead improperly presumed that because the work described above was the “principal work” of the lieutenants and captains, a fact which allowed them to satisfy the first part of the section 3(r) test, it also consumed a preponderance of their time. AFSCME does not claim that such a finding would have been contrary to the evidence, but rather that the Board failed to make the finding in accordance with the requirements of section 3(r). Accordingly, it requests that this cause be remanded for a determination of the amount of time spent by the disputed ranks in directing and in recommending the rewarding, promotion, and discipline of subordinates, to the extent that those activities require the consistent use of independent judgment.

The Board, however, did not misapply the statute. In fact, apparently aware of the possibility that its decision would be so construed, the Board, after finding that the lieutenants’ and captains’ “oversight activity *** not only represents their ‘principal work’, it also clearly consumes a preponderance of their work time,” stated:

“To so hold does not make the ‘preponderance’ element of the supervisory definition redundant of the ‘principal work’ element. An employee’s principal work activity may be much different than that of his subordinates without involving the exercise of supervisory authority. In this case, however, the two are the same.”

For the foregoing reasons, AFSCME’s petition from the Board’s order of April 26, 1989, is dismissed, its cross-petition from the order of June 28, 1989, is also dismissed, and the Board’s order of June 28, 1989, is affirmed.

Dismissed in part; affirmed in part.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN LOVELADY, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 88—1648
    Opinion filed October 24, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Judy I. Mitchell-Davis and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Sharon L. Heath, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Warren Lovelady, was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)), based on accountability, following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to 24 years in the penitentiary.

Defendant appeals, contending: (1) the trial court erred by denying his petition for severance, (2) the State used its peremptory challenges during voir dire to exclude black venirepersons from the jury, and (3) the State failed to prove his guilt beyond a reasonable doubt.

We affirm the judgment of the trial court.

Background

On July 28, 1987, defendant and Keith Harris were jointly indicted on two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). On November 6, 1987, defendant petitioned the trial court to sever his trial from that of Harris. At a November 11 pretrial hearing, the trial judge granted the motion. However, at a subsequent pretrial hearing, on April 4, 1988, the trial judge reversed his ruling and denied defendant’s petition for severance.

Defendant exercised his right to trial by jury; Harris waived the right. Thus, although defendant and Harris were tried jointly, defendant was tried before a jury, while Harris was tried before the bench. We further note that defendant and Harris separately appealed from their convictions, and that the trial transcript was filed in Harris’ appeal. See People v. Harris (1st Dist. 1991), No. 1 — 88—2672 (Rule 23 order).

On April 4, 1988, at the close of voir dire, defendant moved for a mistrial. Defendant argued that the State used its peremptory challenges to exclude black venirepersons from the jury. (See Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) The trial judge denied the motion.

We have previously recited the evidence adduced at trial in our Rule 23 order (134 Ill. 2d R. 23) in Harris’ appeal. (Harris, No. 1— 88 — 2672.) However, since defendant claims that he was not proved guilty beyond a reasonable doubt, we must describe the evidence, as it related to defendant, in detail, referring to our previous order.

The following pertinent evidence was adduced at trial. Christopher Jones testified that he was one of Harris’ brothers and a friend of defendant. On July 20, 1987, at approximately 1:30 a.m., Jones, with his mother and sister, was in front of his house at 8221 South Coles Avenue in Chicago. Harris and defendant drove up in Harris’ automobile. Harris asked Jones to help him change the oil in his car. Jones entered the car and sat behind Harris, who was driving. Defendant was in the front passenger’s seat.

As they turned into the alley where his mother’s garage was located, Jones saw the victim and a woman, Olga Gil, standing in a parking lot on the driver’s side of the car. The victim was wearing a tee shirt and shorts with a towel around his neck. Earlier that evening, Jones’ younger brother, Corey, and a friend had been chased and threatened by some “Mexican boys.” The police were called, but no one was apprehended. Jones told Harris that the victim was one of the persons who had harassed Corey. Harris stopped the car and asked the victim if he had a problem. Defendant leaned toward Harris and said “here.” Jones, however, was unable to see what defendant handed to Harris. Defendant then said “cap his ass.” The victim pushed Olga Gil toward some garbage cans. Harris then pointed a gun out of the window and fired one shot. Jones did not see a weapon in the victim’s hands. The victim ran into a nearby gangway.

Harris gave the gun back to defendant and began backing the car out of the alley. Defendant jumped out of the car, ran toward another car in the alley and pointed the gun toward the driver’s side. The driver of the other car was Hugo Gil, Olga’s brother. Hugo was another of the men who allegedly chased Corey earlier that evening. Defendant then ran away. Harris drove out of the alley and, a short time later, returned to Jones’ house. Defendant, who was already there, said that the police were coming and that he was worried about being caught with the gun. Harris instructed Jones to hide it in the attic.

When the police arrived, Jones, Harris, and defendant stated that someone had shot at them. Later, at the police station, Jones admitted that he lied. He then accompanied the police to his house, where he retrieved the gun and gave it to an officer.

On cross-examination, Jones testified that he had never before seen Harris with a gun, and that they were not searching for the persons involved in the earlier incident with Corey. Jones identified the victim because his mother had instructed him to tell her if he saw the men again so that she could alert the police. Jones did not tell investigators that Harris pointed the gun at the victim before firing it. Rather, Harris had simply leaned toward the passenger side and pulled the trigger. Jones was not certain whether the victim had a gun. Also, the car radio was on at the time of the shooting. As a result, although Jones thought defendant said “cap his ass,” defendant might have said “pop his ass” or something else. Harris did not have a gun until immediately prior to the shooting. Jones did not believe that Harris intended to hurt anyone when he fired the shot.

Olga Gil testified that at approximately 1:30 a.m. on the night of the shooting, she, her brother Hugo, and the victim returned home from a neighborhood park. Hugo dropped her and the victim off on the corner and drove off to park the car in the garage behind their home. As she and the victim were crossing a parking lot, a car pulled up in the alley about 10 feet from them. At least two men were in the car, but she could not describe them except that they were black. One of the men asked the victim if he had a problem. The victim then stepped in front of Olga, placing himself between her and the car. He stretched out his arms and said “no problem.” Suddenly, she heard a shot and saw gunfire coming from the front driver’s side. The victim pushed her and told her to run. She ran toward some garbage cans and saw the victim run into a gangway next to the funeral home. She remained near the garbage cans for a few minutes, until she was certain that the car had left. She then searched for the victim and found him lying motionless in the gangway. As she was running home, she stopped a passing police car and reported the shooting.

Hugo Gil testified that as he was parking the car in the garage, he heard some screaming and then a gunshot. As he drove the car out of the garage, he saw another car going backwards down the alley. When the car reached the corner, a man carrying a gun jumped out of the passenger side and ran toward him. Hugo became frightened, ducked down and accelerated the car past both the man and the other car. When he looked in his rear view mirror and saw that the man still had the gun, he quickly drove away. When he arrived back home, the police were there.

Chicago police officer James Jackson testified that he received a radio report of shots fired on Coles Avenue. When he arrived there, he spoke to defendant, Harris, and Jones. Harris told Officer Jackson that while he was in the alley behind his house he was approached by three Hispanic men, one of whom fired a pistol at him. Defendant and Jones, concurred in Harris’ statement. As they were speaking, Officer Jackson received a report of a man having been shot in the area of South Shore Drive. Officer Jackson went to that location and spoke with Olga Gil and the police officer already on the scene. Jackson then returned to Harris’ house and took Harris, defendant, and Jones into custody for further questioning.

Chicago police detective Jack Wilkins testified that when he spoke to Jones at the police station, Jones recanted his story that they were shot at by Hispanic men. Jones also signed a search consent and accompanied Detective Wilkins back to his house where he retrieved the gun from the attic and gave it to Wilkins. Harris and defendant also retracted their earlier statements that they had been shot at in the alley. Defendant, Harris, and Jones each subsequently gave a statement to an assistant State’s Attorney.

A ballistics expert testified that the gun, which Jones gave to Wilkins, was the instrument of death. Further, it was stipulated that the cause of death was a gunshot wound in the right side of the chest; that the body also had two gunshot wounds to the right arm, which were caused by a single bullet; and that the only way these wounds could have occurred was if the victim’s arm was pressed closely across the chest.

Harris testified that immediately prior to the shooting, he arrived at his mother’s house to visit with relatives from out of town. On the way there, he noticed that his car was smoking. He decided to change the oil before returning to his residence. Defendant and Jones got into the car. As Harris was driving around to his mother’s garage in the alley, Jones informed him that their brother Corey had been chased by two men earlier that evening.

As they neared the garage, they saw a man standing with a woman in a parking lot. Jones informed Harris that the man was one of the men who had chased Corey. Harris stopped the car and asked the victim if they could talk. The victim asked Harris to identify himself. Harris responded that he was “the dude’s brother you got into it with earlier.” The victim asked, “what the f— do you want?” Harris did not respond. The victim then “made a move like he was going for something.” Harris thought that the victim was reaching for a gun. Harris ducked down and leaned toward the passenger side of the car. At that moment, defendant handed Harris a gun. Harris took the gun, reached up, and fired a shot out of the window. Harris’ intention was only to scare the victim off, not to kill him. Harris then threw the gun on the seat and began backing out of the alley because he was scared. Defendant grabbed the gun and jumped out of the car.

On cross-examination, Harris stated that when the victim moved his arm across the front of his body, he thought the victim might have been reaching for a gun from the left waist pocket of his shorts. However, Harris did not see any weapon. When defendant handed him the gun, defendant said something which might have been “pop his ass,” but Harris was not certain. After the shooting, they returned to his mother’s house. Defendant thought that the woman had been shot, so they agreed to hide defendant’s gun before the police arrived. Harris testified that he signed the written statement prepared by the assistant State’s Attorney even though it was not an entirely accurate account of what he had told her. Harris denied ever telling an assistant State’s Attorney that defendant had said “pop his ass.”

Defendant testified that he bought the gun used in the shooting two weeks earlier and that he carried the gun for protection. He had walked with his aunt to a bus stop just before stopping at Harris’ house. Harris asked defendant to help him change the oil in Harris’ car. When defendant got into Harris’ car, Harris asked to borrow the gun because he was going to Cabrini-Green later that night and needed protection. Defendant gave the gun to Harris and told him that it held only one bullet. Harris placed the gun on the seat between them.

They drove around to the alley, where they saw the victim and a young woman on the driver’s side of the car. Defendant heard Jones say “that’s one of the guys,” but he did not know what Jones meant. Harris stopped the car, lowered the radio volume, and asked the victim if he had a problem. The victim said something, but defendant did not hear what it was because he had raised the radio volume, faced forward, and did not pay attention to what was happening. Harris and the victim argued for a few minutes. When defendant next looked to his left, he saw the victim push the woman and saw Harris fire the gun. Harris then handed the gun to defendant. Harris instructed defendant to go to Harris’ house, tell his mother that the man had shot at them, and to call the police.

Assistant State’s Attorney Mary Lou Norwell testified for the State in rebuttal. She testified that she took the statements of defendant, Harris, and Jones. Further, Harris stated that when defendant handed him the gun, defendant stated “pop his ass.”

On April 7, 1988, the jury convicted defendant of first degree murder. The trial judge subsequently denied defendant’s post-trial motion. On May 18, 1988, at the close of the sentencing hearing, the trial judge found that the two murder counts merged into one. (See People v. Hood (1989), 191 Ill. App. 3d 129, 134, 547 N.E.2d 637, 641.) The trial judge sentenced defendant to a prison term of 24 years. Defendant appeals.

Opinion

I

Defendant first claims that the trial judge erred by denying his petition to sever his trial from that of Harris. It is settled that defendants who are jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.

A defendant may request severance by pretrial motion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 8.) A defendant who requests severance carries the burden to prove, prior to trial, that a joint trial would be prejudicial. The defendant’s motion must specifically detail his and his codefendant’s defenses, the substance of the testimony to be heard at trial, and the manner in which the defenses conflict. (People v. Cole (1985), 131 Ill. App. 3d 36, 41, 475 N.E.2d 620, 624.) In ruling on the petition for severance, the trial judge essentially must predict the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings. People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969, 972-73.

The decision to grant a separate trial falls -within the sound discretion of the trial court and will not be disturbed unless the court exceeded that discretion. Further, in reviewing the trial court’s ruling on a petition for severance, this court must look only to the allegations in the petition itself and is not to consider the subsequent happenings during the course of the trial. People v. Wolfe (1986), 144 Ill. App. 3d 843, 849, 494 N.E.2d 670, 675.

A

Generally, trial courts grant motions for severance based on two common forms of prejudice. Defendant raised both grounds in his petition and in argument on the petition. The first type of prejudice occurs when a codefendant has made hearsay admissions that implicate the defendant. The introduction of such statements into evidence can violate the defendant’s sixth amendment right to confrontation if the codefendant’s hearsay admission is admitted against defendant and he is unable to cross-examine the codefendant because the latter does not testify. Daugherty, 102 Ill. 2d at 541, 468 N.E.2d at 973; People v. Deltas (1987), 155 Ill. App. 3d 391, 402, 508 N.E.2d 221, 229.

In the case at bar, when the trial judge ruled on defendant’s petition, the judge and all parties knew that Harris would testify at trial and be subject to cross-examination. Further, the record shows that at trial, Harris denied ever telling Assistant State’s Attorney Norwell that defendant said “pop his ass.” Harris’ statement came into trial via Norwell’s rebuttal testimony for the State, to impeach Harris’ testimony. “In such a situation, the sixth amendment right of confrontation is not implicated by admission of the out-of-court statement.” Lekas, 155 Ill. App. 3d at 404, 508 N.E.2d at 231; see People v. Morris (1979), 79 Ill. App. 3d 318, 326-27, 398 N.E.2d 38, 45.

B

“A second type of prejudice occurs when defenses of the various defendants are so antagonistic that a severance is imperative to assure a fair trial.” (Daugherty, 102 Ill. 2d at 542, 468 N.E.2d at 973.) Actual hostility is required for defenses to be considered antagonistic. There must be a true conflict, such that each defendant professes his own innocence and condemns the other. People v. Adams (1988), 176 Ill. App. 3d 197, 200, 530 N.E.2d 1155, 1157.

Applying these principles to the case at bar, we conclude that defendant failed to show that Harris’ defense was antagonistic to his. Defendant’s defense essentially was that he was merely present at the scene of the crime and no more. He gave the gun to Harris prior to seeing the victim with a motive other than shooting the victim. His statement was exculpatory; it was a denial of involvement in the shooting.

The record shows that prior to trial, defendant did not produce any facts to show that Harris would accuse defendant of the shooting. We note Harris’ trial testimony merely to illustrate this conclusion. Harris testified that he fired the gun because he thought the victim was reaching for a gun. Harris’ defense was an unreasonable belief in self-defense. Indeed, Harris denied telling Assistant State’s Attorney Norwell that defendant said “pop his ass.” Thus, Harris’ defense did not condemn defendant, i.e., attribute the commission of the shooting to him. See Cole, 131 Ill. App. 3d 36, 475 N.E.2d 624.

True, Harris’ admission differed from defendant’s statement in various details, such as the exact moment defendant gave Harris the gun. However, at the most, Harris’ admission was merely contradictory of defendant’s defense rather than antagonistic to it. (See People v. Rosario (1989), 180 Ill. App. 3d 977, 981-82, 536 N.E.2d 756, 759.) The “mere contradiction in testimony of two defendants as to what happened on the day of the crime does not render defenses sufficiently antagonistic to constitute reversible error.” (Lekas, 155 Ill. App. 3d at 408, 508 N.E.2d at 233.) We cannot say that the trial judge exceeded his discretion in denying defendant’s petition for severance.

II

Defendant next claims that the State used its peremptory challenges during voir dire to exclude black venirepersons from the jury. In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court prescribed the elements of a prima facie case of purposeful discrimination during voir dire, based solely on the evidence of the prosecutor’s misuse of peremptory challenges at that particular trial.

To establish a Batson prima facie case, the Batson Court held that a defendant must show that he is a member of a cognizable racial group; show that the State exercised its peremptory challenges to remove members of that group; and show other relevant circumstances that raise an inference that the prosecutor used the peremptory challenges to exclude venirepersons from the jury on racial grounds. (People v. Baisten (1990), 203 Ill. App. 3d 64, 73-74, 560 N.E.2d 1060, 1066, quoting Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.) Further, the Court has recently held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers v. Ohio (1991), 499 U.S. 400, 402, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366.

It is settled that a Batson prima facie case cannot be established merely by the numbers of black venirepersons stricken by the prosecution. Rather, the issue is whether this fact, in addition to “any other relevant circumstances,” raises an inference that the prosecutor conducted purposeful discrimination. People v. Holman (1989), 132 Ill. 2d 128, 172-73, 547 N.E.2d 124, 142-43 (and cases cited therein).

“Relevant circumstances” include a pattern of strikes against black venirepersons; the prosecutor’s questions and statements during voir dire and in exercising his challenges; whether there has been a disproportionate use of peremptory challenges against blacks; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic; the level of black representation in the venire as compared to the jury; the race of the defendant and the victim; and the race of the witnesses. (People v. Mahaffey (1989), 128 Ill. 2d 388, 413, 539 N.E.2d 1172, 1184; Baisten, 203 Ill. App. 3d at 74-75, 560 N.E.2d at 1066.) Additionally, a trial judge’s determination that a defendant failed to establish a prima facie Batson case will not be overturned unless it is against the manifest weight of the evidence. People v. Batchelor (1990), 202 Ill. App. 3d 316, 323, 559 N.E.2d 948, 953, citingMahaffey, 128 Ill. 2d at 413, 539 N.E.2d at 1184.

Defendant raised the Batson issue at the close of voir dire. The record shows that African-Americans constituted 16.6% of the venire. The prosecutor exercised five of the seven peremptory challenges that the State was allowed. Of the five venirepersons excluded by the State, the record identifies three who were African-American. The record further identifies two African-Americans whom the State accepted as jurors, constituting 16.6% of the jury. The trial judge essentially ruled that defendant did not establish a Batson prima facie case. However, after making this ruling, the trial judge compelled the prosecutor, over his objection, to give race-neutral reasons for his exercise of peremptory challenges. After hearing the. prosecutor’s explanation, the trial judge denied defendant’s motion for mistrial.

The United States Supreme Court has recently held that it is of no concern when a trial court collapses Batson’s procedural steps. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Emphasis added.) (Hernandez v. New York (1991), 500 U.S. 352,_, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866.) Since the prosecutor in the case at bar submitted an explanation for his exercise of peremptory challenges, the question of whether defendant established a Batson prima facie case is moot. Consequently, we turn to the question of whether the prosecutor’s explanation was race-neutral. See People v. Johnson (1991), 218 Ill. App. 3d 967, 978-79.

Once the defendant establishes a Batson prima facie case, the burden shifts to the prosecutor to explain its use of peremptory challenges. The explanation must be clear, legitimate, trial-specific, and race-neutral to dispel the presumption created by the prima facie case. (Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.) The prosecutor must show more than an intuitive judgment that black jurors will favor black defendants. However, the explanation need not rise to the level that justifies a challenge for cause. Baisten, 203 Ill. App. 3d at 77, 560 N.E.2d at 1068; Batchelor, 202 Ill. App. 3d at 323, 559 N.E.2d at 953; People v. Jones (1990), 201 Ill. App. 3d 440, 445-46, 559 N.E.2d 112, 116.

Examples of race-neutral explanations include but are not limited to: courtroom demeanor, employment status and type of job, connections with those who do criminal defense work, social relationships with lawyers and judges, age, status as renter or homeowner, arrest record, if the venireperson lives near the scene of the crime, and if the venireperson has children of an age similar to the defendant. (Baisten, 203 Ill. App. 3d at 79-81, 560 N.E.2d at 1069-71; Batchelor, 202 Ill. App. 3d at 323, 559 N.E.2d at 953; Jones, 201 Ill. App. 3d at 447, 559 N.E.2d at 117.) A prosecutor’s use of one of these traits to exclude black venirepersons is not race-neutral if the State retains white venirepersons having that same trait and there is nothing else that distinguishes the retained white venirepersons from the excluded black venirepersons. However, a peremptory challenge is usually based on a combination of traits. Thus, a particular trait that might justify exclusion of one venireperson might be acceptable in another who has a different combination of traits. Batchelor, 202 Ill. App. 3d at 323, 559 N.E.2d at 953.

Further, the disproportionate impact of the prosecutor’s explanation on minority venirepersons is relevant to the ultimate issue of purposeful discrimination. However, this factor is not conclusive in determining whether the prosecutor’s explanation is race-neutral. Rather, disproportionate intent is the key in evaluating the race-neutrality of the prosecutor’s explanation. (Johnson, 218 Ill. App. 3d at 980-81, explaining Hernandez, 500 U.S. 352, 114 L. Ed. 2d 395, Ill S. Ct. 1859.) After the prosecutor gives the explanation, the defendant then has the opportunity to rebut the explanation as pretextual. Jones, 201 Ill. App. 3d at 446, 559 N.E.2d at 116.

At the conclusion of the Batson hearing, the trial judge weighs the evidence in light of the defendant’s prima facie case, the prosecutor’s race-neutral explanation, and any defense rebuttal. The judge must determine the ultimate question of whether purposeful discrimination has been shown by a preponderance of the evidence. Jones, 201 Ill. App. 3d at 446, 559 N.E.2d at 116.

The trial court’s Batson determination is a question of fact, based largely on credibility; thus, the decision is entitled to great deference. As a result, a trial court’s Batson determination will not be disturbed on review unless it is against the manifest weight of the evidence. Baisten, 203 Ill. App. 3d at 77, 560 N.E.2d at 1068; Batchelor, 202 Ill. App. 3d at 323, 559 N.E.2d at 953; Jones, 201 Ill. App. 3d at 446-47, 559 N.E.2d at 116-17.

Applying these principles to the case at bar, we conclude that the evidence failed to establish a Batson case of purposeful discrimination. The record identifies three black venirepersons whom the State excluded from the jury: Annie Davis, Linda Christian, and Ronald Reid. Defendant asserts that the State also wrongfully excluded Sheila Travillion from the jury. However, the record does not identify this venireperson’s race. Thus, defendant’s objection to this venireperson’s removal is waived. See People v. Evans (1988), 125 Ill. 2d 50, 62, 530 N.E.2d 1360, 1364.

The prosecutor explained that Annie Davis was excused because she had a medical condition that caused her to fall asleep if she sat for extended periods of time; her husband was unemployed; and her youngest child, a son who was approximately defendant’s age, was also unemployed. The prosecutor excused Linda Christian because she and her mother were each a victim of a crime that went unprosecuted and because Linda was a longtime teacher (see People v. Harris (1989), 129 Ill. 2d 123, 178-80, 544 N.E.2d 357, 381-82). Although the trial judge never required the State to explain the removal of Ronald Reid, the record shows that he was a student with a part-time job and that he did not own a residence, but rather, lived with his mother. Each of these traits is considered race-neutral. After carefully reviewing the entire record, we cannot say that the trial judge’s denial of defendant’s Batson motion was against the manifest weight of the evidence.

Ill

Defendant lastly claims that the State failed to prove beyond a reasonable doubt his involvement in the crime. Defendant was convicted of murder based on accountability. A person is accountable for the conduct of another when either before or during the commission of an offense, with the intent to promote or facilitate its commission, he solicits, aids, or abets another in the planning or commission of that offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) The State must prove each of these elements beyond a reasonable doubt. People v. Bailey (1985), 132 Ill. App. 3d 399, 403, 476 N.E.2d 1360, 1364; People v. Grice (1980), 87 Ill. App. 3d 718, 724-25, 410 N.E.2d 209, 215.

A person’s mere presence at the scene of the crime is not culpable and is insufficient to establish legal accountability. Knowledge that a crime is being committed does not constitute aiding or abetting. However, one may aid or abet without actively participating in the overt act. Words of agreement are not necessary to establish a common purpose to perpetrate a crime; the common design can be inferred from the circumstances surrounding the commission of the unlawful act. Factors which the trier of fact may consider in determining a defendant’s legal accountability include proof that the defendant was present during the commission of a crime without opposing or disapproving it, that he maintained a close affiliation with his companions after the perpetration of the offense, and that he failed to report the crime. The trial court’s finding that a defendant is legally accountable for the criminal conduct of another will not be set aside on review unless the evidence, when viewed in the light most favorable to the prosecution (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77), is so improbable or unsatisfactory that a reasonable doubt of the defendant’s guilt exists. Bailey, 132 Ill. App. 3d at 404, 476 N.E.2d at 1364-65; Grice, 87 Ill. App. 3d at 725-26, 410 N.E.2d at 215-16.

Defendant argues that the testimony of Harris and of Jones failed to establish the elements of accountability. The testimony of an accomplice, corroborated or not, can be sufficient to sustain a conviction if the jury is convinced beyond a reasonable doubt. Although accomplice testimony is competent, it is often fraught with serious problems; it should be accepted with the utmost caution and subjected to the highest scrutiny. However, whether accomplice testimony forms a sufficient basis for conviction goes to the weight of the evidence. Thus, the determination of the issue is properly a function within the province of the jury. People v. Page (1987), 163 Ill. App. 3d 959, 968-69, 516 N.E.2d 1371, 1379.

Defendant points to alleged inconsistencies and discrepancies in the testimony of Harris and Jones. However, it is the function of the trier of fact to resolve any conflicts in the evidence and to assess the credibility of the witnesses. (People v. Cadwallader (1989), 181 Ill. App. 3d 488, 497-98, 536 N.E.2d 1319, 1325.) After carefully reviewing the entire record, we cannot say that the evidence was so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. See People v. Cobb (1981), 97 Ill. App. 3d 615, 617-18, 422 N.E.2d 1106, 1108-09.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: PRESIDING JUSTICE GOLDENHERSH

text:
    ROBERT L. AARON et al., Plaintiffs-Appellees and Cross-Appellants, v. HERB HENDRICKSON, d/b/a Hendrickson Lumber Company, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5 — 90—0244
    Opinion filed December 6, 1991.

      Richard Kruger, of Kruger & Henry, of Metropolis, for appellant.
    William Rudert, of Mike McCormick & Associates, of Vienna, for appellees.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Robert L. Aaron and Mary Sue Aaron, brought suit against defendant, Herb Hendrickson, d/b/a Hendrickson Lumber Company, to recover damages caused by defendant’s wrongful cutting of plaintiffs’ trees. After a bench trial, the trial court entered judgment for plaintiffs for $17,056.81 plus costs of $2,165.88 against defendant. Defendant appeals the judgment of the circuit court of Johnson County and asks us to consider the following issues: (1) whether section 4 of the Wrongful Tree Cutting Act (the Act) (Ill. Rev. Stat. 1987, ch. 961/2, par. 9404) is unconstitutional, or (2) if section 4 of the Act is not unconstitutional, whether the trial court’s findings were against the manifest weight of the evidence. Plaintiffs have filed a cross-appeal raising a single issue, namely, whether the trial court’s finding that plaintiffs failed to prove ownership within an area referred to as the “overlap” was against the manifest weight of the evidence. We affirm.

The evidence presented in this case shows that defendant purchased approximately 125 acres of timber from Lyle Carlton in September 1987. The Carlton land on which the timber is located adjoins land owned by plaintiffs. Defendant paid Carlton $7,500 and a 1984 Honda four-wheeler for Carlton’s 125 acres of timber. Carlton told defendant that the boundary line between his property and plaintiffs’ property was a power line running through the area. Carlton’s basic instruction to defendant was that defendant could cut any trees east of the power line. Defendant did not look at the legal description of defendant’s contract for deed, but he did look at an aerial photograph in the ASCS office and an abstract office plat book. The power line ran north and south, parallel with the section lines. A reading of Carlton’s legal description shows the boundary line is actually a diagonal line which does not go as far as the power line. A land surveyor, Rod Martin, was hired by plaintiffs’ counsel to establish plaintiffs’ property line.

According to Martin’s survey, there is a 1.14-acre overlap between plaintiffs’ property and the description of the Carlton property line in defendant’s contract for deed. The following diagram is adopted from plaintiffs’ exhibit number 1 and shows the location of plaintiffs’ property line, Carlton’s property line, the power line, and the overlap area:

Defendant hired Max Crippen and Bill Mellein to cut the trees for him. Defendant paid the men by the Doyle Scale on each 1,000 board feet they cut at a rate of $15 per 1,000 feet. Defendant showed Crippen and Mellein what he believed the boundary line to be, which was anything east of the power line, and gave them an aerial photograph to assist in determining the property line. Defendant stated that he also talked to an adjoining landowner, Mr. Walker, who verified that the boundary line was the power line. Lyle Carlton also showed Crippen and Mellein the boundary lines as he understood them.

The value of the timber cut was a source of dispute between the parties. Upon plaintiffs’ motion, the trial court pursuant to section 3 of the Act ordered reports by three independent-value appraisers from the Department of Conservation (the Department). Each of the appraisers divided his report into two areas: (1) the value of the trees cut in the area determined to be plaintiffs’, and (2) the value of the trees cut in the overlap area. The following table is useful in comparing the three appraisals:

Value of timber cut Value of timber cut
in “overlap area” from plaintiffs’ property
Jack N. Kagy $549.42 $4,765.66
Robert Mayberry $635.05 $4,698.81
Don E. Van Ormer $998.32 $7,592.44

Kagy charged $480 for his appraisal services, Mayberry charged $296.40, and Van Ormer charged $288.48. Kagy and Mayberry used basically the same method to determine the value of the trees. Both attempted to match the tops of the trees that were cut to the remaining stump. They then measured the distance between the top and the stump to determine the length of the log. Both used the Doyle Scale to determine board feet. The value for each variety of tree was multiplied by the total board feet for that variety in order to determine the fair market value. Van Ormer used the standard tree-volume table measurement to determine volume. To do this, he determined diameter at 41/2 feet off the ground. Van Ormer then determined the useful portion in logs and in half-logs.

Plaintiffs did their own estimate of the value of their loss. Plaintiff Robert L. Aaron estimated that 218 trees had been wrongfully cut on his property. He used the Doyle Log Scale to arrive at the volume of logs cut and determined their value to be $5,243.71. Defendant also calculated the loss plaintiffs suffered due to the cutting of plaintiffs’ trees. Defendant estimated the value of all the trees at $70 per board feet. Using the Kagy and Mayberry determinations of total board feet and applying a rate of $70 per 1,000 board feet, defendant determined that plaintiffs lost $2,950 worth of trees. Defendant testified that he measured board feet using the same method as Kagy and Mayberry. Defendant did not approve of the method used by Van Ormer to determine value.

After hearing the evidence, the trial court found for plaintiffs on count I in the amount of $5,685.63 plus costs, but found that plaintiffs had failed to prove ownership within the area identified as the overlap. The trial court also found for plaintiffs on count II and invoked the treble-damage provision found in section 2 of the Act (Ill. Rev. Stat. 1987, ch. 961/2, par. 9402) for a total award of $17,056.81 plus costs. The costs found by the court and assessed to defendant include half of the $1,200 survey fee of plaintiffs’ surveyor, half of the $472 charged by plaintiffs’ surveyor to testify, $1,064.88 for the costs of the three appraisals ordered by the trial court and $265 for filing and service of process fees and subpoena fees for witnesses. Even before trial, defendant raised the issue of constitutionality. Defendant filed a motion attacking the constitutionality of the Act, which was denied by the trial court on the first day of trial.

The challenged statutes provide in pertinent part:

“§2. Any party found to have intentionally cut or knowingly caused to be cut any timber or tree which he did not have the full legal right to cut or caused [sic] to be cut shall pay the owner of the timber or tree 3 times its stumpage value.
§3. The courts of this State may order the Director or his representative to secure three independent value appraisals to determine the stumpage value of wrongfully cut timber or trees. Such order shall state the reason the value information is needed, the parties involved in the action, the area to be examined and other information needed by the Department to carry out its responsibilities. All parties to the court action shall be instructed to make themselves available to the Department at reasonable times to assist in the location of areas and material to be examined. Expenses incurred, including but not limited to those for surveys, consulting services and administrative costs, shall be borne equally by the parties unless otherwise ordered by the court.
§4. Within 30 days after the Department is ordered to establish value, it shall notify the court of its findings of value and expenses. The court shall then average the appraisals and award triple the average value and make final determination as to which party or parties shall pay expenses. The failure of any party to make full payment within the time limits set by the court or to cooperate with the Department shall be considered contempt of court.” Ill. Rev. Stat. 1987, ch. 961/2, pars. 9402, 9403, 9404.

The first issue we are asked to consider is whether section 4 of the Act is unconstitutional. Defendant first contends that section 4 is unconstitutional because it violates article II, section 1, of the Illinois Constitution (Ill. Const. 1970, art. II, §1), the separation of powers clause, as an action of the General Assembly interfering with the exercise by the courts of their judicial power. According to defendant, section 4 dictates that a court must assess damages in a specific way, namely, to average three appraisals and award three times the average value, without allowing the court any discretion in its determination. Plaintiffs reply that the statute in question does not prescribe a rule of procedure, which would infringe upon a judicial power in violation of article II, section 1, of the Illinois Constitution, but rather creates a cause of action for an owner of wrongfully cut trees and proposes a way to ascertain damages which a court may or may not follow. We agree.

In People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855, our supreme court stated:

“Article II, section 1, of the Illinois Constitution of 1970 provides: ‘The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.’ The General Assembly has the power to enact laws governing judicial practice only where they do not unduly infringe upon the inherent powers of the judiciary. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 59[, 389 N.E.2d 1170, 1172]; People v. Callopy (1934), 358 Ill. 11[, 192 N.E. 634].) Furthermore, it is the undisputed duty of the court to protect its judicial powers from encroachment by legislative enactments, and thus preserve an independent judicial department. Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149[, 105 N.E.2d 713].
A statute should be interpreted so as to avoid a construction which would raise doubts as to its validity. (Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 363[, 399 N.E.2d 1295].) It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can be reasonably done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 389[, 251 N.E.2d 253]; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561[, 224 N.E.2d 236].” 93 Ill. 2d at 161-62, 442 N.E.2d at 857-58.

See also People v. Flores (1984), 104 Ill. 2d 40, 46-47, 470 N.E.2d 307, 309.

The Davis court held that two sections of a statute, which provided that “[t]he sentencing judge in each felony conviction shall set forth his reasons for imposing the particular sentence he enterfed] in the case” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(b)) and “[i]n imposing a sentence for a felony, the trial judge shall specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to his sentencing determination” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c)), were not unconstitutional because they were not mandatory. The Davis court interpreted the word “shall” as permissive rather than mandatory. Davis, 93 Ill. 2d at 162, 442 N.E.2d at 858.

In the instant case, we must look at the Act as a whole. The statute in question does not dictate what method is to be used to determine the value of the impermissibly cut trees. Section 3 of the Act states that “[t]he courts of this State may order the Director or his representative to secure three independent value appraisals.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 961/2, par. 9403.) The word “may” is permissive; section 3 of the Act makes available to a court a procedure for determining value, but the Act in no way limits a court to this one method of value determination. If a trial court determines that another method would be more appropriate in determining value, the court is free to use that method.

Defendant also argues that the judicial function has been encroached upon by the General Assembly’s directive to “average the appraisals and award triple the average value.” (Ill. Rev. Stat. 1987, ch. 961/2, par. 9404.) We disagree and find that the General Assembly has not usurped the judicial function.

We conclude that the Act gives a tree owner an additional remedy to trespass, and being punitive in nature, the treble-damage provision discourages persons from cutting down others’ trees without thoroughly checking out boundary lines and true ownership of the timber. The award of treble damages is not uncommon. For example, treble-damage provisions are a mainstay of Federal antitrust laws. (See section 1964(c) of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1964(c) (1988), and section 15 of the Clayton Act, 15 U.S.C. §15 (1988).) In the instant situation, the treble-damage provision seeks to protect tree owners from those who might knowingly or unknowingly cut their trees. A strong presumption of constitutionality attaches to any legislative enactment, and the burden rests on the challenger to demonstrate its invalidity. (People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E.2d 501.) Since the averaging of the three appraisals is set forth only as one method which the trial court may use in determining stumpage value, we find no violation of the separation of powers clause of the Illinois Constitution.

Defendant next contends that section 4 of the Act is unconstitutional because it violates the due process clause of the Illinois Constitution. (Ill. Const. 1970, art. I, §2.) Defendant contends that section 4 of the Act does not give defendant an opportunity to present its own witnesses who would testify to stumpage value, fails to give an opportunity to cross-examine the independent appraisers, and ultimately fails to give defendant the opportunity to present a meaningful defense. We disagree.

Procedural due process requires that a person be given both notice and opportunity to be heard and defend in an orderly proceeding adapted to the case. (Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 808, 480 N.E.2d 1312, 1324; Nye v. Parkway Bank & Trust Co. (1983), 114 Ill. App. 3d 272, 274, 448 N.E.2d 918, 919.) “ ‘Due process of law is served where there is a right to present evidence and argument in one’s own behalf, the right to cross-examine adverse witnesses, and impartiality in rulings upon the evidence which is offered.’ ” Lakeview Trust, 134 Ill. App. 3d at 808, 480 N.E.2d at 1324, quoting Piotrowski v. State Police Merit Board, (1980), 85 Ill. App. 3d 369, 373, 406 N.E.2d 863, 866.

We believe that the procedural protections given to defendant in the instant case meet the above requirements. Again, we note that the use of three independent appraisals is one possibility open to the court; it is not mandatory that value be determined by using this method. Moreover, in the instant case, defendant was given the opportunity to cross-examine all three appraisers, and did so. Defendant was also given the opportunity to present his own evidence concerning the value of plaintiffs’ cut trees. We cannot say that the trial court erred in refusing to consider defendant’s own appraisal of plaintiffs’ trees, given a $1,700 difference between his estimate and the lowest appraisal by one of the three independent appraisers from the Department. Defendant was entitled to present any evidence or any witnesses he felt would bolster his defense, including impeachment of the appraisers. After reviewing the record as a whole, we find no violation of defendant’s due process rights.

Defendant argues that the present case is analogous to Nye v. Parkway Bank & Trust Co. (1983), 114 Ill. App. 3d 272, 448 N.E.2d 918. In Nye, the plaintiff brought suit to recover attorney fees due him after his alleged representation of defendant in a lawsuit. The defendant denied owing the plaintiff for any services. At trial, the plaintiff himself was the first witness. After cross-examination of the plaintiff, but before the plaintiff had rested and before the defendant had the opportunity to present his defense, the trial court entered judgment for the plaintiff. In Nye, there was a violation of procedural due process, which is absent from the instant case. Here, both plaintiff and defendant presented the witnesses' and testimony they had prepared. Defendant was given the opportunity to cross-examine all of plaintiffs’ witnesses and defendant testified on his own behalf. On this basis, Nye is distinguishable from the case at bar.

Defendant also contends that he was denied procedural due process rights in that he was denied the right to confront and cross-examine the three value appraisers since there is nothing in the Act which requires the appraisers’ presence in court. While the Act does not specify that the appraisers’ presence is required in court, all three of the independent appraisers in the instant case were present in court and defendant cross-examined each one individually.

Defendant’s next contention is that his right to due process was denied because the Act’s formula for averaging damages is intrinsically unfair. According to defendant, the Act seeks to average the appraisals, but falls short because one of the three appraisals may not be in the same basic range as the other two. Defendant contends that the appraisals must be close in value for the averaging system to work, stating that “the whole idea of averaging something is to cut out the extreme values, and find the normal or standard value in a series of values.” A strong presumption of constitutionality attaches to any legislative enactment, and the burden rests on the challenger to demonstrate its invalidity. (People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E.2d 501.) In the present situation, the trial court is to find an “average” value of the unlawfully cut trees and triple that amount in order to punish defendant and deter future offenders. We believe the instant formula accomplished what the General Assembly set out to do in enacting the statute and that the process is not intrinsically unfair.

Defendant’s final constitutional contention is that section 4 of the Act is unconstitutional because it delegates judicial authority to tree-value appraisers. Specifically, defendant argues that the Act allows tree-value appraisers to determine damages and, thus, invades the court’s power to hear evidence, evaluate cases, and determine damages and is in violation of both article II and article VI, section 1, of the Illinois Constitution of 1970.

Defendant cites DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, 540 N.E.2d 847, in support of his contention. In DeLuna, our colleagues in the first district found that section 2— 622(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(l)), which required that medical malpractice complaints be accompanied by an affidavit of a health care professional in whose “determination” there was a “reasonable and meritorious cause” for filing an action and a written report by the health professional indicating the basis for his determination, unconstitutionally delegated judicial authority to health professionals and invaded the power of courts to hear and determine cases in violation of article II, section 1, and article VI, section 1, of the Illinois Constitution. The DeLuna court stated:

“We agree with plaintiff that in section 2 — 622, the legislature unconstitutionally delegates to a professional group the function of deciding whether a plaintiff’s claim should proceed to a hearing, for it is the role of the court, applying the law concerning the sufficiency of allegations in a complaint, to determine whether there is any set of facts under which the plaintiff may state a cause of action in a particular case and move on in the judicial process. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615; Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 417 N.E.2d 806.) Yet, under section 2 — 622, the court cannot reach the issue of whether or not a plaintiff has adequately stated a cause of action unless he or she has filed the required affidavit and the report of a health professional. Indeed, here, under section 2 — 622, the court was not allowed to consider important and perhaps even decisive admissions of fact in the defendant’s discharge summary for plaintiff’s decedent as demonstrating reasonable cause for filing the lawsuit, or to determine whether the complaint states cause of action in any of its various counts. Consequently, the court’s authority to exercise its inherent power to hear and determine a cause was effectively barred, because section 2 — 622 delegates that function to health professionals, and in determining whether an action may be maintained, the court’s role is confined initially to the purely formal and nominal one of finding whether the attorney’s affidavit and the required reports of health professionals have been filed, and it is mandated to dismiss the case if they are lacking. It is one thing to require a medical malpractice plaintiff to provide expert opinion testimony at trial supporting his claim, yet quite another to give control over the ability of our courts to hear and decide medical malpractice cases to those experts. And it is one thing to be required to obtain leave of court in order to advance in the judicial process; yet it is quite another to exact a litigant to obtain the leave of lay persons in order to pursue his suit at law.” 184 Ill. App. 3d at 806-07, 540 N.E.2d at 850-51.

We find that the instant situation dealing with tree-value appraisers is different from the situation presented by section 2 — 622 of the Illinois Code of Civil Procedure. Here, the statute in question does not delegate to anyone the duty of determining whether a plaintiffs claim for wrongfully cut trees has merit. Rather, the statute in question allows a cause of action for wrongfully cut trees in addition to the traditional cause of action of trespass. The court’s authority to hear and determine this additional cause is not impaired by the statute. The court is given the option of ordering three independent appraisers to assist the court in determining damages. For the reasons indicated, we find that section 4 of the Act is not unconstitutional. Given this result, we need not address defendant’s contention that section 4 is not severable from the rest of the Act, thereby making the entire Act unconstitutional.

The other issue defendant asks us to address is whether the trial court’s findings were against the manifest weight of the evidence. Defendant contends that the trial court’s determinations were wrong because plaintiffs failed to meet their burdens of proof on essential elements of the case. In this respect, defendant first argues that section 2 of the Act does not impose strict liability, and that because neither defendant nor Crippen or Mellein knew he was cutting plaintiffs’ trees but made a mistake as to ownership, defendant cannot be held liable under the Act. Plaintiffs respond that the Act in question does not require proof of guilty knowledge; it is enough that defendant was mistaken in his belief that he owned the trees. We agree with plaintiffs that the Act is meant to discourage not only the malevolent timbermen but also the errant timbermen.

In the past, when a situation similar to the instant case was presented to a court, the proper measure of damages was for property in its severed condition and not for the difference in the value of the land before and after a defendant’s misconduct. (Jones v. Sanitary District (1911), 252 Ill. 591, 601-02, 97 N.E. 210, 214-15; First National Bank v. Amco Engineering Co. (1975), 32 Ill. App. 3d 451, 335 N.E.2d 591.) The inequity of this rule was pointed out by the First National Bank court when it stated:

“Where the property injured, although part of the realty, has a value which can be accurately determined without reference to the freehold, the recovery may be for the property in its severed condition and not for the difference in the value of the land before and after the defendant’s misconduct. [Citations.]
Other jurisdictions, in dispensing justice between the parties, allow the reasonable cost of replacing the trees or for the reasonable cost of restoring the property to approximate, as near as possible, its original condition. (See Annot., 69 A.L.R.2d 1335, §§15-16 (1969).) This, it would seem, is the more equitable rule, but Illinois law has not, to date, recognized such rule.” (32 Ill. App. 3d at 454, 335 N.E.2d at 593.)

The General Assembly apparently recognized the inequity of the rule as it previously existed and, in an attempt to correct the situation, allowed for a separate cause of action in addition to trespass. The question arises as to what the General Assembly intended by the words “intentionally and knowingly” under section 2 of the Act.

Section 2 of the Act imposes liability upon anyone found to “have intentionally cut or knowingly caused to be cut any timber or trees which he did not have the full legal right to cut or caused [sic] to be cut.” (Ill. Rev. Stat. 1987, ch. 961/2, par. 9402.) A fundamental rule of statutory interpretation is to ascertain the intent of the General Assembly and give it effect. Legislative intent is primarily determined through consideration of the statutory language. (Illinois Department of Revenue v. Country Gardens, Inc. (1986), 145 Ill. App. 3d 49, 495 N.E.2d 161.) The words “intentionally and knowingly” are not defined within the statute. Here, we believe the record supports the finding that defendant “intentionally” or “knowingly” cut plaintiffs’ timber. We agree that defendant most likely did not desire the end result, that of cutting plaintiffs’ timber. However, due to the inequity of the previous rule that allowed a plaintiff to recover only the value of the cut wood, it is apparent that the General Assembly was attempting to correct the inequity of the prior law. It is rational that the burden of establishing boundaries be placed on a defendant who orders wood to be cut. Otherwise, as plaintiffs point out, it would be advantageous for a defendant to cut now and worry later about tree boundary lines since the maximum financial burden he would face would be the stumpage value of the severed trees. We find that the reasonable interpretation of the Act is that an innocent owner of wrongfully cut timber can recover even without proving malicious and wilful misconduct on the part of a defendant.

Defendant next argues that the tree cutters hired by defendant, Crippen and Mellein, were independent contractors, not employees of defendant, and as such, no liability on the part of defendant exists for wrongfully cutting plaintiffs’ trees. We disagree.

The statute imposes liability not only on those who cut timber, but also on those who “knowingly cause” timber to be cut. (Ill. Rev. Stat. 1987, ch. 961/2, par. 9402.) The intent of the statute is clear. The Act imposes liability directly on a defendant without any insulation due to principles of agency. Here, defendant hired Crippen and Mellein to cut the trees and, in doing so, pointed out boundary lines which were incorrect.

Defendant cites Cushing v. Dill (1840), 3 Ill. (2 Scam.) 460, to support his contention that the Act only imposes liability on the actual trespassers such as Crippen and Mellein. The Cushing case involved a statute which provided penalties against those who knowingly cut timber without the owner’s permission. Because the defendant in Cushing directed his employees to cut timber only on the defendant’s land and cautioned the employees from cutting timber on another person’s land, the Cushing court refused to impose liability against the employer. We find the Cushing case distinguishable from the instant case. First, the statute here in question imposes clear liability on defendant because it was defendant who caused the timber to be cut through his directions to Crippen and Mellein. Second, and contrary to Cushing, defendant herein did show Crippen and Mellein the boundary lines and told them they should cut any timber east of the power line. It was defendant’s misguided directions which caused plaintiffs’ timber to be cut, whereas in Cushing, the defendant did not show his employees the boundary lines and cautioned them against cutting timber on another’s land. Therefore, we find Cushing to be distinguishable.

The next contention made by defendant is that because the judge averaged the three appraisals in order to arrive at a damage award on count I, the award is similar to a quotient verdict and must be declared void.

A trial judge has wide latitude in affixing damages. (Harry Alter Co. v. Chrysler Corp. (7th Cir. 1961), 285 F.2d 903, 907.) Here, the trial court averaged the appraisals of the three independent value appraisers from the Department. The trial court apparently used this method of value determination based on count II of plaintiffs’ complaint which was brought under the Act. (Ill. Rev. Stat. 1987, ch. 961/2, par. 9401 et seq.) The trial court determined that the three independent appraisals would be a proper method to determine value of the wrongfully cut trees. Defendant had the opportunity to cross-examine the appraisals and the opportunity to present its own evidence as to the value of the wrongfully cut timber. We find that the trial court did not abuse its discretion in averaging the three independent appraisals in order to establish damages.

The final issue raised by defendant is that the trial court improperly assessed $1,900.88 in costs against defendant. Defendant specifically complains of the following costs assessed against defendant: (1) the survey charges of plaintiffs’ surveyor, (2) the fee charged by plaintiffs’ surveyor for appearing as a witness, and (3) the fees charged in preparing appraisals by the appraisers selected by the Department. Plaintiffs respond that the $1,900.88 of which defendant complains were costs properly assessed according to the statute. We agree.

At common law, a successful litigant was not entitled to recover costs. The recovery of costs is allowed only by statute and such statutes must be strictly construed because they are in derogation of the common law. (In re W.W. (1983), 97 Ill. 2d 53, 55, 454 N.E.2d 207, 209.) The Act in question allows for assessment of costs. Section 3 of the Act provides, in pertinent part:

“Expenses incurred, including but not limited to those for surveys, consulting services and administrative costs, shall be borne equally by the parties unless otherwise ordered by the court.” (Ill. Rev. Stat. 1987, ch. 961/2, par. 9403.)

Section 4 of the Act also addresses the issue of costs. It directs the court in making a final determination as to value and expenses to “average the appraisals and award triple the average value and make final determination as to which party or parties shall pay expenses.” Ill. Rev. Stat. 1987, ch. 961/2, par. 9404.

In the instant case, the trial court assessed the following damages against defendant: half of the $1,200 survey fee charged by plaintiffs’ surveyor, half of $472 charged by plaintiffs’ surveyor to testify in court, and the full total of $1,064.88 charged by the three independent appraisers for a total of $1,900.88. The statute specifically states that defendant could be charged half the survey fees. We also believe the language of the statute allowed the trial court to tax as costs, in its discretion, half of the surveyor’s fee for his testimony in court, and the full costs charged by the three appraisers from the Department. Costs are allowances in the nature of incidental damages awarded to reimburse the prevailing party for the expenses necessarily incurred in his assertion of his rights in court. (Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 165-66, 441 N.E.2d 318, 321-22.) We believe the costs charged to defendant in this case were costs incurred as a result of going to court and not the ordinary expenses of litigation, which are not allowed. (92 Ill. 2d at 166, 441 N.E.2d at 322.) We find no abuse of discretion by the trial court in ordering defendant to pay $1,900.88 in costs of which defendant now complains.

Plaintiffs have filed a cross-appeal in the instant case arguing that the trial court’s findings that plaintiffs failed to prove ownership of the area within the overlap was against the manifest weight of the evidence. Plaintiffs contend their introduction of deeds and plaintiffs’ chain of title created a presumption of ownership in plaintiffs’ favor which defendant failed to rebut. Defendant responds that the testimony in this case also showed that Lyle Carlton was the owner of the overlap and, therefore, the trial court did not err in finding that plaintiffs failed to prove ownership of the overlap area. We agree with defendant.

The introduction of deeds into evidence by a plaintiff is sufficient evidence of title to sustain an action for injury to the land, in the absence of any showing that the title is in anyone else. (Jent v. Old Ben Coal Cory. (1920), 222 Ill. App. 380, 383, citing City of Chicago v. McGraw (1874), 75 Ill. 566.) In the present situation, the trial court was made aware of the discrepancies between plaintiffs’ title and Lyle Carlton’s title. Plaintiffs’ own exhibit number 1, which we have reproduced in our statement of facts, clearly depicts a 1.14-acre overlap area. Plaintiffs’ own surveyor drew the overlap area to the court’s attention. Carlton’s title was used by plaintiffs’ surveyor in establishing the 1.14-acre overlap and in developing plaintiffs’ exhibit number 1. The evidence was replete with representations that the 1.14-acre overlap existed. Therefore, there was other evidence beyond the introduction of plaintiffs’ deeds to show that another, namely Lyle Carlton, owned the property which has been referred to as the overlap. We agree with the trial court that plaintiffs failed to prove that they own the area in the overlap. We find the trial court was correct in not awarding damages for timber cut in the 1.14-acre overlap.

For the foregoing reasons, the judgment of the circuit court of Johnson County is affirmed.

Affirmed.

HARRISON and LEWIS, JJ., concur.