author: JUSTICE INGLIS JUSTICE WOODWARD,

text:
    RUSS BERRIE AND COMPANY, INC., Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Appellees.
    Second District
    No. 2—91—0258
    Opinion filed January 30, 1992.
    Rehearing denied March 11, 1992.

      WOODWARD, J., dissenting.

      Mark A. Casciari, Patricia J. Hruby, and Richard M. Lyon, all of Sey-farth, Shaw, Fairweather & Geraldson, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield, and Kent Sezer, of Human Rights Commission, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Potter & Schaffner, of Chicago (Mark S. Schaffner, of counsel), for respondent Louis Carr, Jr.
   JUSTICE INGLIS

delivered the opinion of the court:

Petitioner, Russ Berrie and Company, Inc. (Berrie), appeals from an order of respondent, the Illinois Human Rights Commission (Commission), entered on October 2, 1990. The appeal is pursuant to section 8 — 111 of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 8—111(A)(1)). The Commission affirmed the decision of the administrative law judge (ALJ) finding that Berrie racially discriminated against respondent, Louis Carr, Jr. (Carr), in denying him employment. The petitioner raises three issues on appeal: (1) whether the Commission’s finding was contrary to law and against the manifest weight of the evidence; (2) whether the Commission erroneously failed to consider evidence related to Carr’s credibility and qualifications; and (3) whether the remedy of “instatement” by the Commission was an abuse of discretion. We reverse.

In July 1983, Carr, a black male, responded to a newspaper advertisement placed by Berrie. The advertisement offered a career opportunity in the sales field. Berrie sells a variety of gift items to retail stores, which in turn sell them to consumers. The Berrie distribution center in question is located in Itasca, Illinois. Carr sent in a cover letter and resume in response to the advertisement.

Each person who responded to the advertisement was interviewed at a hotel in Schaumburg, Illinois. Over 100 applicants were interviewed by various company representatives. Carr was interviewed by Sandy Presser, a regional sales manager for Berrie. Carr discussed his education and work experience, hobbies and the like. Ms. Presser told Carr he was the type of person Berrie was looking for. After all the interviews were completed, Sarah Sekulski, the director of sales, was given the resumes of applicants invited for second interviews. Carr was one of the invited applicants.

About two weeks later, Carr was called in for a second interview at the Itasca office. Ms. Sekulski was the interviewer. The Commission found that Sekulski asked Carr whether he felt inferior to white people and whether he would be comfortable selling to them. Sekulski denies asking those questions at the interview. After a second interview, the next step in the hiring process was a day in the field. Se-kulski did not recommend Carr for a day in the field because she did not find him credible. He stated on his resume that he had a 90% closing ratio as an insurance salesman. Sekulski also thought that he lacked the proper attitude for the position. Sekulski did not inform Carr of this decision. He eventually contacted another Berrie official who told him the position had been filled.

In approximately December 1983, Carr saw another newspaper advertisement by Berrie seeking sales help. He responded again by sending a cover letter and resume. Again, he received an invitation initially to interview at a hotel, which was attended by approximately 150 to 175 applicants. Carr was scheduled to interview with a clerical employee, but when he mentioned that he had previously interviewed with Berrie, he was sent to Ms. Sekulski. Sekulski referred him to Randy Gendreau, a regional sales manager, for an independent opinion on Carr’s qualifications. Gendreau conducted the interview and noticed the 90% closing ratio figure on Carr’s resume. Gendreau found Carr unfit to continue the interviewing process.

Carr filed a complaint on October 25, 1985, alleging racial discrimination on the part of Berrie. Hearings were conducted in July and August 1986. On July 1, 1987, the ALJ recommended that Carr be instated in the position of sales representative with Berrie because of discrimination on the part of Sarah Sekulski. Randy Gendreau was found to have acted in a nondiscriminatory manner. Berrie was to pay lost wages of $21,379.28, and pay Carr’s attorney fees and costs, which amounted to $25,115.61. Berrie was also to cease and desist from racial discrimination in its hiring practices. On October 2, 1990, the Commission entered an order affirming the recommendations of the ALJ.

Berrie’s petition for rehearing, pursuant to section 8A — 103(F) of the Act (Ill. Rev. Stat. 1989, ch. 68, par. 8A—103(F)), was denied on February 1,1991. Petitioner filed a timely appeal on March 5,1991.

Petitioner first contends that the Commission’s finding of racial discrimination was contrary to law and against the manifest weight of the evidence. The Commission’s findings of fact will be sustained unless the findings are against the manifest weight of the evidence. (Ill. Rev. Stat. 1989, ch. 68, par. 8—111(A)(2); Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180.) A judgment is against the manifest weight of the evidence when an opposite conclusion is clearly evident from the record. (Evert v. Board of Trustees of the Fire Fighters’ Pension Fund (1989), 180 Ill. App. 3d 656, 660.) The weight given to testimony and the credibility of the witnesses is within the function of the agency. Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 513.

Our supreme court adopted a three-step process used by the United States Supreme Court to analyze employment discrimination actions. (Zaderaka, 131 Ill. 2d at 178, citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) First, the complainant must establish a prima facie case of unlawful discrimination. If a prima facie case is established, there is a rebut-table presumption that the employer unlawfully discriminated against complainant. The burden of production then shifts to the employer to show a nondiscriminatory reason for the decision. If the employer carries the burden and rebuts the presumption, the complainant must prove by a preponderance of the evidence that the employer’s articulated reason was a pretext for unlawful discrimination. (Zaderaka, 131 Ill. 2d at 178-79.) Throughout these stages, the burden of persuasion remains on the complainant. Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 67 L. Ed. 2d 207, 217, 101 S. Ct. 1089, 1095.

Petitioner did not dispute the finding that Carr met the burden of proving a prima facie case, creating the rebuttable presumption that Berrie unlawfully discriminated against Carr. Respondents cite the ALJ’s finding that Carr need only meet the minimum objective qualifications for the position to prove a prima facie case of discrimination. (See Burrus v. United Telephone Co. of Kansas, Inc. (10th Cir. 1982), 683 F.2d 339, 342.) According to the Commission, the only objective qualifications for a sales position at Berrie were that a resume be submitted and that the applicant have reliable transportation.

The presumption of unlawful discrimination was found to be rebutted by the Commission. Sekulski’s reasons for not recommending Carr were that he made a misrepresentation on his resume and that he did not possess an attitude that Berrie deemed appropriate for sales. The Commission’s conclusion that these reasons were nondiscriminatory is not contested by respondents.

The burden then shifted to Carr to prove that Berrie’s reasons for not hiring him, the 90% closing ratio and his attitude, were a pretext for unlawful discrimination. Carr alleges that Sekulski asked him whether he felt inferior to white people or would have difficulty selling to them. The Commission made a finding of fact that Sekulski asked this question. Carr further argues that a memorandum Sekulski wrote concerning the interview with Carr demonstrates that Sekulski did not rely on the 90% closing figure when denying him employment. Finally, Carr argues that discrimination was evident based on the number of black people hired by Berrie at the two interviews attended by Carr, as well as the percentage of black people employed by Berrie at the time. For the reasons expressed below, we hold that the Commission’s finding that the 90% closing ratio was a pretext to unlawful discrimination was against the manifest weight of the evidence.

The Commission’s conclusion that Sekulski asked Carr whether he felt inferior to white people or would have difficulty selling to them is not supported by the record. The ALJ found that Carr should be believed over Sekulski because a previous applicant testified that Sekulski had asked her whether she would be comfortable selling to people of different nationalities. In fact, the record on appeal does not reflect this testimony. The Commission specifically found that this question was not asked by Sekulski in a previous interview. But, the Commission found that this factual error was “minor” and upheld the ALJ’s finding that Sekulski had asked Carr the improper racial questions. The error made by the ALJ was not minor. Without the corroborating testimony supporting Carr’s assertion of improper questioning, there is little evidence to support the Commission’s finding that Sekulski asked Carr whether he felt inferior to white people or would have difficulty selling to white people.

The memorandum Sekulski wrote in January 1984 concerning Carr’s interview does not suggest that the 90% closing figure on Carr’s resume was a pretextual reason for denying him employment. In that memorandum, Sekulski failed to mention the 90% closing ratio or any other reason for denying Carr employment. Sekulski’s memorandum was an outline of her interview with Carr that did not include a list of reasons for denying him employment. The purpose of Sekulski’s memorandum was to clarify what questions she had asked at the interview and to determine whether any improper questions were asked by Sekulski. It would be unfair to determine whether Sekulski denied Carr employment because of his race based on information missing from a memorandum which was not meant to be the subject of the requested memorandum.

Finally, the Commission and ALJ rely on the general hiring practices of Berrie to establish racial discrimination in this case. The small number of black people hired at the Berrie center in Itasca may lead to an inference of discrimination. But, the general hiring practices alone are not conclusive evidence of racial discrimination. The Commission recognizes this when quoting Miles v. M.N.C. Corp. (11th Cir. 1985), 750 F.2d 867, 873:

“[It was] never claimed that the statistical evidence proved [the] case of disparate treatment, but only that it showed a pattern of favoring whites over blacks ***. *** [Statistical evidence *** provided a background against which to assess [the] claim.”

In contrast to the Commission’s finding, there is ample evidence in the record to support the contention that Carr was denied employment for a legitimate, nondiscriminatory reason. The Commission found that Carr had “something on his resume,” namely a 90% closing ratio figure, “which was impossible by generally-accepted insurance company definitions.” The ALJ found that “[c]omplainant testified that in his view a closing ratio refers to the final act; that is, a sales presentation.” The ALJ also stated that she did believe that Carr was being dishonest in using that figure. We find that the evidence shows the 90% closing ratio figure was equivalent to a misrepresentation.

An insurance expert testified that “closing ratio” was the number of persons asked to purchase insurance versus the number of persons who purchase insurance. The expert also testified that a 90% closing ratio was “preposterous.” Even Sekulski and Gendreau were familiar with the accepted definition of a closing ratio, though they had not been employed in the insurance industry. Carr had been employed in the insurance industry for approximately five years, prior to applying with Berrie. It is unreasonable to believe that Carr was not familiar with the proper definition of closing ratio. Thus, the inclusion of a 90% closing ratio on Carr’s resume was equivalent to an intentional misrepresentation.

Another fact of great significance to this court is that Carr was interviewed a second time. Sekulski had Gendreau reinterview Carr when he reapplied in December 1983. Instead of summarily rejecting Carr, Sekulski sought an independent opinion on Carr’s qualifications. The ALJ determined that Gendreau denied Carr employment for a legitimate reason — the 90% closing ratio figure on Carr’s resume. Gen-dreau did indeed provide a more detailed summary of his interview with Carr than the one provided by Sekulski. But, this factor alone should not be conclusive. Gendreau’s legitimate rejection of employment is significant in deciding whether Sekulski rejected Carr for a nondiscriminatory reason.

We hold that the Commission’s finding that Berrie’s reason for not hiring Carr was a pretext for unlawful discrimination was against the manifest weight of the evidence. Carr failed to prove that the misrepresentation on his resume was a pretextual reason for not hiring him. As such, we need not discuss whether his alleged “cocky” attitude was a valid justification. Our determination is not based on reweighing evidence or making an independent finding of fact. If an administrative agency’s finding lacks evidentiary support in the record, it must be set aside as against the manifest weight of the evidence. Pioneer Life Insurance Co. v. Woodard (1987), 152 Ill. App. 3d 236, 244-45.

The percentage of minorities hired and employed by Berrie at that time appears to be unrepresentative. However, a successful complainant must present more evidence than this. In the end, Carr’s misrepresentation, coupled with the lack of evidence of Berrie’s discriminatory motive, prevented Carr from being a successful complainant.

The remaining issues presented by the petitioner are moot.

The order of the Commission entered on October 2, 1990, is reversed.

Reversed.

McLAREN, J., concurs.

JUSTICE WOODWARD,

dissenting:

I respectfully dissent. The issue before us is whether the Commission’s decision was against the manifest weight of the evidence. As stated by the majority, “[a] judgment is against the manifest weight of the evidence when an opposite conclusion is clearly evident from the record.” (224 Ill. App. 3d at 878; Evert v. Board of Trustees of the Fire Fighters’ Pension Fund (1989), 180 Ill. App. 3d 656, 660.) This determination should not be based on reweighing evidence or making an independent finding of fact.

Carr’s complaint alleging racial discrimination was based on the following facts: (1) that Sekulski asked him whether he felt inferior to white people and whether he would be comfortable selling to them; (2) Sekulski’s memorandum regarding her interview with Carr demonstrated that the 90% closing ratio was not relied on as a basis for denying employment; and (3) that Berne’s discrimination was demonstrated by the absence of black people employed by it.

The majority found that the Commission’s conclusion that Se-kulski asked Carr whether he felt inferior to white people or would have difficulty selling to them was not supported by the record. I specifically disagree with the conclusion of the majority. In addressing this issue, the Commission stated the following:

“[T]he respondent argues that it was error for the Administrative Law Judge to find that Sekulski asked Carr about his ability to sell to white customers and his feelings of inferiority. The complainant presented clear, direct testimony that these statements had been made. Obviously, it was in complainant’s interest to testify to these statements. It is equally obvious that it was in the respondent’s interest that Ms. Sekulski deny making these statements. A clearer conflict in witness credibility could not be imagined. Obviously, one of the witnesses was not telling the truth. It is precisely the job of the fact-finder to determine where the truth lies when evidence is in conflict. The fact that the Administrative Law Judge found against the respondent does not make her finding against the manifest weight of the evidence.”

It is evident that the Commission determined this issue based upon its overall assessment of Sekulski’s credibility. Clearly the evidence demonstrated Sekulski’s lack of credibility in several key areas. Sekulski testified that her decision not to hire Carr was based on her belief that he had lied on his resume about his closing ratio in a previous job.

But her testimony before the ALJ set forth below reveals that she did not pursue this concern with Carr.

“Q. You emphasized what the closing ratio means in your business. You aren’t aware of the meaning of closing ratio in other fields or other businesses, are you?

A. Not to any great extent.

Q. You don’t have personal knowledge as to that?

A. No.

Q. And in fact, at the interview with Mr. Carr, you didn’t ask him about the meaning of the closing ratio; did you?

A. No, I did not.

Q. In fact, you didn’t ask him anything about what the 90 percent close ratio was?

A. I can’t recall whether I asked him about the 90 percent close ratio.”

Furthermore, Sekulski made no reference to said closing ratio in her January 1984 memorandum which described her interview with Carr, even though this memorandum was prepared in response to Carr’s lawsuit. Her failure to discuss the primary reason for denying Carr employment casts considerable doubt on Sekulski’s veracity.

Adding to Sekulski’s credibility problems is her testimony that she recommended denial of employment based, in part, on Carr’s lack of enthusiasm and his cocky attitude. Yet her January 1984 memorandum makes no reference to either Carr’s lack of enthusiasm or his cocky attitude.

The overriding issue before us is Sekulski’s credibility. Given the above-cited discrepancies between her memorandum and her testimony, the Commission was certainly entitled to find Sekulski’s testimony lacking in credibility. Accordingly, the Commission’s determination that Sekulski did indeed ask Carr if he felt inferior to whites and whether he could sell to them was supported by the record.

Furthermore, contrary to the majority’s assertion, the Commission was entitled to diminish the significance of the ALJ’s erroneous reliance on another witness’ testimony. The fact that a white female applicant denied being asked by Sekulski whether she could sell to people of different nationalities has little bearing on the case before us. What matters is whether Sekulski asked the question of Carr, not whether she asked a white applicant a racially based question. The Commission could certainly conclude that such testimony was of little relevance to the issue under consideration.

The opinion of the majority implies that for Carr to be believed he must present some corroborating evidence. That simply is not the standard. In cases such as this, when a racially motivated remark is made, a third person is usually not present. In most situations, it will be one person’s word against another. Here, Carr said Sekulski asked the disputed question; Sekulski denied that she had. It was the Commission’s task to decide who was telling the truth. It agreed with Carr, and that decision is supported by the evidence as above discussed.

Bolstering the Commission’s finding in Carr’s favor was the statistical evidence presented regarding respondent’s hiring practices during the relevant period. The record demonstrates that from 10% to 15% of the applicants in the subject 1983 hiring seminar were black. No black applicants were among the 29 new sales representatives hired by respondent after this seminar. Employment statistics of respondent as a whole and, in particular, the Itasca Distribution Center are examined. These statistics, as revealed on respondent’s EEO-1 reports to the EEOC, show a substantial underrepresentation of blacks in its sales force. In March 1984, the closest period in time to the alleged discriminatory act for which statistics were available, respondent failed to employ even a single black out of the 421 salespeople it employed nationally. In 1985 respondent employed one black salesperson out of its 566-person sales force. The evidence further showed that not a single black person was employed from March 1982 through July 1984 in respondent’s Itasca office, despite the fact that approximately 45 blacks applied for jobs during that period of time.

Admittedly, such statistical evidence in and of itself is not sufficient to support a racial discrimination charge. However, when viewed in conjunction with evidence of specific discrimination against a particular job applicant, such statistical evidence serves to confirm the charge of discrimination.

Finally, the majority finds it significant that Carr was interviewed again by respondent in December 1983. As the issue before us is respondent’s actions during the July 1983 interview, a second interview held months later has no bearing on whether respondent discriminated against Carr in July 1983. Moreover, Sekulski did not contact Carr for an interview in December 1983. Carr happened to see respondent’s advertisement in a newspaper’s help wanted section and made his application. Permitting Carr a second interview was nothing more than a perfunctory act on respondent’s part. Also, respondent did not hire Carr after his second interview, a further indication of respondent’s unwillingness to hire black applicants who meet hiring requirements.

It is the Commission’s province to determine the witnesses’ credibility, and such findings are entitled to deference by courts of review. (Quincy School District No. 172 v. Human Rights Comm’n (1990), 197 Ill. App. 3d 694.) Such findings will be deemed contrary to the manifest weight of the evidence only if they are palpably erroneous or if an opposite conclusion is clearly evidenced. (Shah v. Human Rights Comm’n (1989), 192 Ill. App. 3d 263.) Under this standard, the Commission’s decision should stand.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE B. WALLS, Defendant-Appellant.
    Second District
    No. 2—90—0549
    Opinion filed January 30, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, and Kielian & Walther, of Chicago (M. Jacqueline Walther, of counsel), for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Willie B. Walls, was charged by indictment in the circuit court of Kane County with one count of attempt (murder), one count of armed violence (based on aggravated battery causing great bodily harm) and four counts of aggravated criminal sexual assault (while using a dangerous weapon; caused great bodily harm by stabbing; so as to endanger life by stabbing; during the commission of armed violence). Ill. Rev. Stat. 1989, ch. 38, pars. 8—4, 33A—2, 12—14(a)(1), (a)(2), (a)(3), (a)(4).

The defendant was acquitted of attempted murder, but he was convicted of the remaining charges. His motion for a new trial was denied except insofar as it sought the dismissal of multiple counts of aggravated criminal sexual assault. He was sentenced on one count of aggravated criminal sexual assault and for armed violence to concurrent terms of eight years.

He appeals, contending (1) that the jury instructions erroneously omitted the requirement that the State prove beyond a reasonable doubt an absence of justification for his conduct; (2) that the absence of an aggravated battery issues instruction (the felony underlying the armed violence charge) requires reversal of his conviction; (3) that the evidence concerning the presence of semen was improperly admitted where the semen was not from him, he was precluded from questioning the complainant as to other sexual contact, and the prosecutor knew that the complainant had engaged in intercourse with someone else shortly before this incident; (4) that evidence and argument concerning his alleged conversation with police and failure to turn himself in to police thereafter were improperly presented; and (5) that his conviction of armed violence must be vacated in that it is based on the same conduct as his aggravated criminal sexual assault conviction.

In August 1989, the defendant and the complainant had known each other for some time. They were former neighbors whose relationship had evolved into an active sexual relationship, and they lived together for a year and a half. Even after they stopped living together in May 1989, they continued to see each other, and the defendant continued to assist the complainant financially.

On the evening of August 30, 1989, the defendant went to the complainant’s house in Aurora after speaking with her on the telephone and agreeing to bring her some money to help her with her telephone bill. When the defendant arrived, the complainant let him in. The complainant’s 10-year-old daughter was also home but was asleep in a bedroom.

The defendant and the complainant watched television, split a sandwich, had a beer and talked. They also engaged in intercourse in the living room of the complainant’s apartment; their testimony differed as to when the intercourse occurred and whether it was consensual.

The complainant testified that the defendant asked if they could have sex and that she said no. She stated that, after that, they continued watching television and that the defendant was not upset. They then spoke further, and the defendant asked about another relationship of the complainant’s. Although the complainant claimed that she was not upset, she told the defendant to leave. Complainant stated that the defendant then pulled out a small steak knife with a blade not longer than three inches. She knocked the knife away from him, and they began to wrestle. They ended up on the couch with the defendant on top of her, choking her neck with his hands. Although neither struck the other, and nothing was said, the complainant stated that she was trying to fight the defendant off.

According to the complainant’s testimony, the defendant held her by her braided hair during the struggle, told her to turn the light on, and she did so. The defendant began looking for the knife, and she and he both saw it wedged along the side of the couch. The defendant turned the light off and began to lead her toward the couch. The complainant grabbed for the knife by the blade end. The complainant stated the defendant tried to, and did, take the knife away from her and that her hands were cut.

The complainant stated that the defendant then held the knife and instructed her to close the patio door, lock her front door, and undress. The complainant stated the defendant walked her over to both doors, pulling on her hair, and that she did as she was told. When she disrobed, the defendant was four feet away. The complainant stated that she screamed, kicked, and wrestled with the defendant on the floor. She kicked a table into the wall to try to let her neighbor know there was something going on in her apartment. The complainant’s daughter was not awakened by these noises.

After the complainant kicked the table, the defendant stabbed her. He was sitting on her legs and she was holding his hand, trying to keep the knife away, but she could not. The first stab was in the middle of her chest and it hit bone. The second stab to her chest was slow and a little off-center. She heard air coming out of her chest after that stab. The complainant testified the defendant then told her to put her legs up, and he put his penis in her vagina; he still had the knife. She did not know if he ejaculated.

The complainant got up from the floor and went to the kitchen to wash her wounds; there were clots of blood coming from the second stab wound. The defendant sat on the couch and put the knife in his back pocket. He told her the cuts did not look that bad and that she had made him do something he did not want to do. He also remarked that he guessed he would be going to jail now, and she said, no, he was not. She testified she said that because she feared he would finish killing her if she said he was going to go to jail.

After the defendant left, the complainant telephoned her sister-in-law, who lived in the building next door. Complainant told her sister-in-law that she had been “cut.” Complainant’s sister-in-law came over and then called her husband, the complainant’s brother, and the police. Complainant’s brother arrived along with the police, and an ambulance took the complainant to the hospital. The complainant testified she did not really get to speak to her brother until she got to the hospital, but the complainant’s brother testified that the complainant told him when he arrived at her house and called 911 that she had been raped.

The defendant’s testimony was that, after he had been at the apartment for about half an hour, he asked the complainant if they could have sex. She agreed. The complainant removed her jeans and got on the floor. The defendant began to have intercourse with her consent, but he stopped because he was having difficulty on the floor due to a leg-and-knee injury. The defendant testified that he did not force the complainant to engage in sex and was not holding a knife to her. He testified he did not ejaculate.

Afterward, defendant testified they ate, had a beer, watched television, listened to the radio and talked. Later, the conversation got heated. The defendant testified that the complainant came out of the kitchen with a knife and they were arguing. He grabbed her wrist, she “was slinging [him] around,” and they went over the table and *** the couch.” The defendant then saw blood on the complainant’s chest, and they stopped. The defendant stated that he helped the complainant clean herself off and he wanted to take her to the hospital. She refused and said that she would call her brother. The complainant told the defendant to leave, apparently because she did not want her brother to get into an argument with the defendant.

The doctor who examined the complainant at the hospital, Manuel Sarricoa, M.D., stated that the complainant had two stab wounds in her chest, cuts on her hands, and a bruise on her left shoulder. Although the complainant told police and hospital personnel that there had not been an ejaculation, a “rape kit” was taken at the hospital which included specimens from a vaginal swab.

The two cuts to the complainant’s hands were less than one inch long and were sutured. One of the cuts in her chest, also less than one inch long, caused a puncture of the lung which caused air to leak outside the lung into the chest cavity. The doctor testified that although any stab wound to the chest is potentially serious and life-threatening, the complainant’s life was not in danger at the hospital; she was observed in the hospital for two or three days and released.

A forensic scientist, Jennie Hahn, testified that semen was present on the vaginal swab taken from the complainant. The swab revealed factors which would be present in a person who is a secretor with type 0 blood. A secretor is a person whose genetic markers can be detected in body fluids. The defendant had type 0 blood and was a secretor; Hahn testified that the defendant could not be eliminated as a possible source of the semen. Seventy-four percent of the black population of the United States are also secretors. The complainant herself was a secretor and also had type 0 blood. Her blood type factors could not be separated from the semen.

An Aurora police dispatcher, Linda Adams, was allowed to testify over defense objection to a conversation she had with the defendant in the early morning hours of August 31, 1989. According to the dispatcher, the defendant called in response to a prior police call to him. Adams stated the defendant admitted during the conversation having been in Aurora at his girlfriend’s apartment. Adams stated the defendant did not respond when she asked if he realized he had hurt the complainant badly. According to Adams, the defendant agreed to turn himself in, but he did not do so. At the time she spoke with the defendant, no complaint had been filed against him. Charges were filed on September 6,1989.

The defendant first argues that, where he was charged with armed violence based on the underlying offense of aggravated battery and where he presented evidence he acted in self-defense, the lack of a self-defense instruction and an instruction to the jury that the State must disprove the existence of justification for his conduct was plain, reversible error. The State disagrees, arguing that the lack of legal justification is not a necessary element of the offense of battery. Rather, the justifiable use of force is considered to be an affirmative defense which defense was not available to the defendant here, where he testified that the complainant was stabbed accidentally during the course of their struggle. Further, the failure to instruct the jury on the lack of legal justification, even if error, is not such grave error as to warrant application of the plain error doctrine.

We find the defendant has waived this issue by failing to raise any objection to the State’s instructions at trial, to tender his own, or to raise the matter in his post-trial motion. Although substantial defects in jury instructions may be considered despite a defendant’s failure to properly preserve the issue (People v. Reddick (1988), 123 Ill. 2d 184, 198, 134 Ill. 2d R. 451(c)), that exception will be invoked only to correct grave errors or to correct errors in cases so closely balanced that fundamental fairness requires that the jury be properly instructed (Reddick, 123 Ill. 2d at 198; People v. Thurman (1984), 104 Ill. 2d 326, 329-30). The evidence in the instant cause was not closely balanced, and the defendant has not challenged its sufficiency.

Moreover, absence of legal justification is not an element of the offense of battery where the defendant has not raised the affirmative defense of justifiable use of force. (People v. Sambo (1990), 197 Ill. App. 3d 574, 582; People v. Worsham (1975), 26 Ill. App. 3d 767, 771.) Although the defendant posits that the evidence “suggested” that he acted in self-defense, his testimony was that he was the one who first pushed and then grabbed the complainant, that he did not think that she intended to use the knife against him, and that when they fell over the end of the table and the couch “that was the end of it.” This evidence does not suggest that the complainant was cut and stabbed by the defendant in self-defense but, rather, that she was wounded accidentally during the course of their struggle.

The defense of justifiable use of force and accidental use of force cannot be simultaneously relied upon in defense of a violent crime. (People v. Shelton (1985), 140 Ill. App. 3d 886, 890.) “[SJelf-defense, whether reasonable or not, relates to the intentional or knowing use of force and not to an accidental [use of force].” People v. Purrazzo (1981), 95 Ill. App. 3d 886, 893; see also People v. Tanthorey (1949), 404 Ill. 520.

Accordingly, we conclude this issue has been waived and the plain error doctrine is inapplicable.

The defendant next contends that plain, reversible error occurred because the jury was not instructed on the elements required to prove the offense of aggravated battery, the offense underlying the armed violence charge. The State construes the defendant’s argument to be that reversal is required because the jury was not given the aggravated battery issues instruction in addition to the definitional instruction for that offense notwithstanding the fact that he raised no objection at trial or in his post-trial motion to the lack of such issues instruction nor did he tender same himself.

We find, as above, that the defendant has waived this issue and that the plain error doctrine is inapplicable. The definitional instruction given for the offense of aggravated battery, Illinois Pattern Jury Instructions, Criminal, No. 11.07 (2d ed. 1981) (hereafter IPI Criminal 2d), sets out the “elements” of that offense, to wit: intentional causation of great bodily harm during the commission of a battery. In addition to the definitional instruction for armed violence and aggravated battery, the jury also received the definitional instruction of battery and the issues instruction for armed violence. (IPI Criminal 2d Nos. 11.05, 11.20.) Further, the committee note to the definitional instruction for armed violence directs that the court “[g]ive the instruction defining the offense that is the subject of the armed violence.” (Emphasis added.) IPI Criminal 2d No. 11.19, Committee Note.

Indisputably, the State must prove every element of an asserted crime beyond a reasonable doubt (People v. Reddick (1988), 123 Ill. 2d 184, 195) in order to sustain a conviction, and the court is obliged to insure that the jury is instructed on certain fundamental issues such as the elements of the crime charged, the presumption of innocence, and the burden of proof (People v. Pegram (1987), 152 Ill. App. 3d 656, 660, aff'd (1988), 124 Ill. 2d 166). A failure to provide essential jury instructions deprives the accused of a fair trial (Pegram, 152 Ill. App. 3d at 660), and, thus, it is important that jury instructions contain all the issues involved in an offense (People v. Thurman (1983), 120 Ill. App. 3d 975, 981, aff'd in part, rev’d in part (1984), 104 Ill. 2d 326).

The defendant was charged here with armed violence, however, not aggravated battery, and the jury properly received the “issues” instruction for armed violence (IPI Criminal 2d No. 11.20). One of the “issues” to be proved beyond a reasonable doubt according to that instruction was “[t]hat the defendant committed the offense of [aggravated battery]” which, the jury was instructed, is committed “when [the defendant], in committing a battery, [intentionally] causes [great bodily harm] to the person harmed.” (IPI Criminal 2d Nos. 11.20, 11.07.) As the State points out, if the jury was given the issues instruction for aggravated battery, it may have been confused rather than enlightened by it since it refers to sustaining “the charge” of aggravated battery and that the defendant should be found either “guilty” or “not guilty” based on its consideration of whether each or any of the propositions has been proved beyond a reasonable doubt. There was no “charge” of aggravated battery here, nor were there verdict forms on which to record the jury’s judgment of guilty or not guilty. There was no misstatement of the State’s burden of proof as in Reddick (123 Ill. 2d at 194-99), nor was an element of the offense omitted from the issues instruction as in People v. Ogunsola (1981), 87 Ill. 2d 216, 218-23.

Accordingly, notwithstanding the defendant’s waiver of the issue, we find no error in the instructions given to the jury.

The defendant’s next contention is that the evidence concerning the presence of semen found in the complainant’s vagina was improperly admitted. He argues such evidence was improper where (1) test results on the semen showed only that he, a type 0 secretor, was one of many potential semen donors who could not be eliminated as a possible source of the semen; (2) he was precluded from questioning the complainant as to other recent sexual contact; and (3) the State admitted that it knew the complainant had engaged in intercourse with someone other than the defendant within the 72-hour time period prior to the offense.

As to the test results, the defendant failed to raise this issue during trial although he did raise it in his post-trial motion. Contrary to the defendant’s argument, however, simply raising such an issue at the post-trial stage does not serve the essential purpose of the waiver rule. That essential purpose is to obtain timely resolution of evidentiary questions at trial (People v. Carlson (1980), 79 Ill. 2d 564, 576) in order to prevent a party who fails to object from gaining the advantage of obtaining a reversal based on his own failure to act (People v. Roberts (1979), 75 Ill. 2d 1, 11). “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) People v. Enoch (1988), 122 Ill. 2d 176, 186.

Despite the defendant’s waiver, we will address the issue in the interest of forestalling the introduction of this type of evidence under similar facts in the future.

Relevant evidence is evidence which has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. (People v. Eyler (1989), 133 Ill. 2d 173, 217.) To be relevant, and, thus, admissible, evidence need only tend to prove or disprove a disputed fact. People v. Uzelac (1988), 179 Ill. App. 3d 395, 407.

In People v. Schulz (1987), 154 Ill. App. 3d 358, upon which the defendant relies, the court reversed the defendant’s conviction of murder where, in the absence of other significant corroborative evidence, the State introduced testimony concerning blood and semen samples that proved only that the defendant could not be excluded as a suspect. The test results there simply placed the defendant in an extremely large category of possible donors, that is, at best, the semen came from someone within a 20% group of the general population. Evidence similar to that in Schulz has been found admissible, however, where it tended to support other evidence. People v. Murff (1991), 214 Ill. App. 3d 1034 (complainant identified the defendant whom she had known for several years); People v. Wright (1989), 186 Ill. App. 3d 159 (complainant identified the defendant in photo and in-person lineups); People v. Uzelac (1988), 179 Ill. App. 3d 395 (complainant identified the defendant in lineup and there was modus operandi evidence).

Although the victim here also positively identified the defendant, the instant cause is distinguishable from Murff Wright and Uzelac in that each of those defendants asserted an alibi defense, thus placing the perpetrator’s identity in question. Here, the defendant admitted he had intercourse with the complainant, and the only disputed fact was whether the intercourse was consensual. Clearly, evidence of the emission of semen is not required to prove sexual penetration (People v. Allman (1989), 180 Ill. App. 3d 396, 402; Ill. Rev. Stat. 1989, ch. 38, par. 12—12(f)), and neither the presence nor absence of semen is probative of whether an act of sexual penetration was consensual. Consequently, the semen evidence was not probative of any fact in issue.

Despite this conclusion, we nevertheless find admission of the semen evidence was harmless beyond a reasonable doubt. Errors will be held harmless when they could not reasonably have affected the result or contributed to the defendant’s conviction. (People v. Keefe (1991), 209 Ill. App. 3d 744.) The only possible effect of this improper evidence would be to cast doubt on the credibility of the defendant’s testimony that he did not ejaculate. The complainant herself testified at trial, however, that she did not know whether the defendant ejaculated, and there was evidence she had stated at an earlier time that he did not ejaculate. Consequently, the defendant’s credibility on a point which was not probative in the first place could not seriously have been damaged by this evidence. This is particularly so where forensic scientist Hahn testified, and, thus, the jury was apprised, that (1) the complainant’s own genetic factors could not be segregated out from the semen because she was also a type O secretor; (2) she would be able to tell if semen from a different blood group had been deposited in the complainant’s vagina; and (3) her testing would have been reflective of semen deposited at any time within a three-day period prior to the submission of the samples. We note further that defense counsel’s closing argument concerning this last point included a “suggestion” that one of two other persons whose names were mentioned at trial was the semen depositor. Finally, the jury was instructed that the emission of semen is not required to prove sexual penetration. (IPI Criminal 2d No. 11.65 (Supp. 1987).) Thus, any prejudicial effect of this improper evidence was thoroughly diluted, and, absent it, we find the jury’s verdict could not reasonably have been different.

We reject the defendant’s related argument that the improper admission of the semen evidence was compounded by the court’s application of the rape shield statute. (Ill. Rev. Stat. 1989, ch. 38, par. 115—7.) The defendant argues the court’s application of the statute precluded him from cross-examining the complainant concerning her sexual activity with another person within the relevant 72-hour time period and, thus, precluded him also from effectively presenting his theory of defense and prejudiced his right of confrontation.

The rape shield statute, promulgated to avoid harassment of the complaining witness (People v. Ellison (1984), 123 Ill. App. 3d 615, 626), precludes the introduction of evidence of a rape victim’s prior sexual activity or reputation, except past conduct with the defendant (Ill. Rev. Stat. 1989, ch. 38, par. 115—7). The clear and explicit language of the rape shield statute is not unyielding, however, where the right of confrontation sought to be exercised by way of cross-examination is both relevant and based on a showing of bias, prejudice or motive. People v. Sandoval (1990), 135 Ill. 2d 159, 174-75, referring to Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.

For instance, in Olden v. Kentucky (1988), 488 U.S. 227, 102 L. Ed. 2d 513, 109 S. Ct. 480, the defendant’s right to establish the ah leged rape victim’s motive to lie was found to override the Kentucky rape shield statute. The defendant there, who asserted the defense of consent, sought to introduce evidence of the alleged victim’s relationship with another man, his theory being that the victim fabricated the story of the rape so as not to jeopardize her relationship with the other man.

No such defense theory was sought to be furthered by the confrontation sought at bar, however. The defense here sought strictly to damage the State’s semen test evidence, which tended to show that the defendant could not be excluded as the depositor of the semen, by presenting evidence of his own that the complainant had intercourse with another person or persons within the 72-hour time period prior to her encounter with the defendant. Evidence of the complainant’s prior intercourse with another man, of which the State admitted it knew, would only have shown the existence of another member of the class to which the defendant already belonged (type 0 secretors), and would not have been relevant to the question of whether the admitted act of sexual penetration between the complainant and the defendant was consensual. Cf. People v. Bell (1991), 217 Ill. App. 3d 985 (defendant properly precluded from questioning 12-year-old alleged victim of aggravated criminal sexual assault regarding her sexual contact during prior three days for the purpose of (1) accounting for inconclusively tested semen found in victim’s vagina; (2) establishing that some person other than him had assaulted her; and (3) completing his impeachment of her as to whether vaginal penetration occurred where the vaginal assault counts were dropped and the victim admitted prior inconsistency).

We conclude the court did not err in precluding such cross-examination of the complainant under the rape shield statute, although it would only have seemed fair to have allowed it in view of the irrelevant semen test evidence presented by the State. Two wrongs still do not make a right, however. In this regard, we note the defendant does not claim that the prosecutor’s knowledge that the complainant did have intercourse with another person during the 72-hour time period prior to the act of sexual penetration at bar amounted to the presentation of perjured testimony or that the prosecutor knowingly misled the jury. Rather, defendant claims that the evidence itself was misleading, and it was “inappropriate” for the prosecutor to have presented it. We agree, but the record suggests the evidence was presented, somewhat routinely, in order to preclude the defense from being able to argue to the jury that, although a rape kit test was administered, the State did not present the test results. The availability of rape kit test evidence in sexual assault cases may be commonplace, but its admission must never be regarded as merely routine. Careful attention must be afforded its relevance under the particular facts of each case.

The defendant next contends that evidence concerning his conversation with the Aurora police and his subsequent failure to turn himself in for questioning was improperly presented. Specifically, Aurora police dispatcher Linda Adams was allowed to testify to a telephone conversation with the defendant in which he admitted that he had been at the complainant’s apartment, that he said nothing when asked if he realized he had hurt the complainant badly, and that he agreed to turn himself in. Defense counsel objected at trial to Adams’ testimony on the basis that, although he knew Adams would testify that the defendant called the police, he was unaware that there was a 10-to 20-minute conversation.

It is unclear from the record whether counsel had any actual knowledge of what the substance of the conversation between the defendant and Adams was, and there is nothing in the State’s written answer to discovery in the common-law record concerning the substance of the conversation. Defense counsel neither sought a continuance nor cross-examined Adams at trial. The prosecutor subsequently cross-examined the defendant on his failure to go to the Aurora police department even though the defendant knew they wanted to ask him some questions.

Neither the defendant nor the State notes that this issue was not raised in the defendant’s otherwise detailed post-trial motion. Consequently, the defendant does not argue the matter should be noticed as plain error, nor do we see that it should, and the issue may be considered waived. People v. Enoch (1988), 122 Ill. 2d 176, 186.

Assuming arguendo the State’s actions with regard to this witness could be considered to be noncompliance with discovery requirements, such noncompliance does not require a reversal, absent a showing of prejudice (People v. Schutz (1990), 201 Ill. App. 3d 154), since the purpose of the rule requiring disclosure of statements made by the defendant is to prevent surprise and unfairness to the accused (People v. Miller (1989), 190 Ill. App. 3d 981).

Defense counsel never stated he was unaware of the substance of the conversation but only that he did not know the conversation had been as long as it was. Adams stated that she was “in and out of the conversation with Officer McQuinley, too” while she was talking with the defendant, and this may have accounted for the extended length of the conversation. Moreover, the jury was apprised that no charges were pending against the defendant at the time Adams conversed with him. Additionally, the defendant testified he started out to go to Aurora, but changed his mind and called the Aurora police department stating that he “wasn’t coming.”

A defendant waives the issue of an abuse of the court’s discretion in allowing the introduction of evidence not disclosed by the State where, after the statement is admitted, he fails to request a continuance to investigate the statement or to impeach the witness regarding the statement. (People v. Jastrzemski (1990), 196 Ill. App. 3d 1037.) The defendant here did not request a continuance and, in fact, conducted no cross-examination of Adams at all. Accordingly, we conclude that, in addition to waiving the error by failing to raise it in his post-trial motion, the defendant has failed to establish surprise or unfairness which prejudiced him.

The defendant’s final contention is that his conviction of armed violence must be vacated and the cause remanded for resentencing because it was based on the same conduct as the aggravated criminal sexual assault offense, that is, the use of a knife and the stabbing of the complainant. As such, he argues, the less serious conviction of armed violence must be vacated. The State argues the armed-violence conviction need not be vacated where the complainant was stabbed twice, thus supporting two different offenses.

We agree. Under the one-act-one-crime principles announced in People v. King (1977), 66 Ill. 2d 551, multiple convictions and concurrent sentences are permitted in cases where a defendant has committed several acts, despite the interrelationship of those acts. (King, 66 Ill. 2d at 566.) Accordingly, convictions with concurrent sentences can be entered when a series of incidental or closely related acts occurs and each of those acts supports a different offense which is not a lesser included offense of the other.

The separate blows administered to a victim during the course of a beating by a defendant have been found to support the defendant’s multiple convictions of and concurrent sentences for aggravated battery and mob action. (People v. Dixon (1982), 91 Ill. 2d 346, 355-56.) Similarly, multiple convictions of and concurrent sentences for armed violence, predicated on the possession of a controlled substance, and for possession of a controlled substance with intent to deliver were upheld where the intent-to-deliver element of the second offense was not included in the unlawful possession offense upon which the armed violence charge was predicated. (People v. Green (1990), 199 Ill. App. 3d 927.) It was determined there that the possession offenses could be based separately on the cocaine found in the defendant’s left- and right-hand pockets, respectively. Green, 199 Ill. App. 3d at 932.

The instant armed violence charge was predicated on aggravated battery. An included offense of that armed violence charge would be battery, but the added element of criminal sexual assault in the aggravated criminal sexual assault offense here negatives any conclusion that that offense is an included offense of the armed violence charge. Moreover, as the State argues, the separate stab wounds inflicted on the complainant here cannot be distinguished from the multiple blows in Dixon or the separate pockets of cocaine in Green. On the other hand, they do serve to distinguish the instant cause from the case relied on by the defendant, People v. Olsen (1987), 161 Ill. App. 3d 945, in which the defendant’s conviction of armed violence, predicated on the use of nunchucks to inflict bodily harm on the victim, was vacated because his conviction of aggravated criminal sexual assault was based on the same forcible act. We conclude both of the defendant’s convictions may stand.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    FERMI NATIONAL ACCELERATOR LAB, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Prince, Appellee).
    Second District (Industrial Commission Division)
    No. 2—91—0356WC
    Opinion filed January 15, 1992.
    Rehearing denied March 2, 1992.

      James F. Gorman, of Gifford, Detuno & Gifford, Ltd., and Thomas W. Gifford, of Roddy, Power, Leahy, Guill, Zima & Gifford, both of Chicago, for appellant.
    Robert B. Williams, of Williams & Marcus, of Chicago, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant suffered an injury to his right anide when he twisted it after stepping off a stoop on respondent’s premises. While recuperating nine days later, he fell at a shopping mall, causing additional injuries to his right knee and left thumb. The Industrial Commission (Commission) determined that both injuries constituted a single accident and awarded benefits. The circuit court confirmed the Commission’s decision.

On appeal, respondent raises the following issues: (1) neither injury is compensable; (2) a shorter period of temporary disability should have been awarded; (3) some of claimant’s medical problems are not causally related to his accident; (4) penalties were improperly imposed; (5) the Commission erred in remanding the case to the arbitrator to determine the amount of any credit which respondent might be due because of its overpayment of benefits to claimant; and (6) the arbitrator improperly refused to admit testimony from two of respondent’s witnesses.

The underlying facts are substantially uncontroverted. Claimant filed separate applications for adjustment of claim for two injuries occurring on May 10 and May 19, 1989. Claimant holds a Ph.D. in toxicology and pathology and was employed by respondent as an environmental and occupational health and safety engineer at its 4,800-acre complex. Claimant’s duties included recovering water and soil samples from a variety of locations within and without the laboratory facilities for further analysis.

On May 10, 1989, claimant and another employee, Mark Thomas, were in the central utility building on site waiting to recover a water sample. Due to a water treatment process which was in progress, Thomas decided to leave the building to smoke a cigarette. Claimant accompanied Thomas to get some fresh air. With respect to the accident, claimant testified:

“I followed Mark out the door and Mark went left and I went to follow him and as I followed I stepped off this stoop and as I stepped off the stoop my foot felt something solid. I transferred my weight but as I transferred my weight the rocks trader foot gave way and my foot rolled to the right.”

Claimant severely twisted his right ankle and fell. He was removed to a hospital and, after an X ray, was given medication, had the ankle placed in a splint, and was provided crutches.

Claimant testified he had never used crutches before, was not given any instructions in their use, and did not remember if they were adjusted to his height before he left the hospital. Because he had never used crutches, claimant stated his movements and ability to walk were awkward. He relied upon a combination of hopping and jumping to get around.

Two days after the accident, claimant saw Dr. Lowry, who placed a cast on claimant’s right foot and told him to return home and stay off his feet. Except for going to the bathroom, claimant remained bedridden. Nine days after the accident, claimant again saw Lowry on May 19, 1989. A new cast was placed on the right ankle which extended to claimant’s knee. Lowry again sent him home and told him to rest the leg.

Claimant’s wife drove him to and from the May 19 appointment with Lowry. On the way home, claimant had the urge to void urine and his wife stopped at a shopping mall for that purpose. The parties entered the mall through a Marshall Field store. Claimant was using his crutches.

The store entrance was carpeted but the floor inside the doorway was either linoleum or marble tile. Both the carpet and floor were wet due to the fact that it had rained earlier in the day. Claimant testified that as he was walking with his crutches, they slid out from under him. His left foot went forward and his right foot with the cast went backward. He then fell on his elbow and back injuring his right knee and left thumb. Claimant called Dr. Lowry from the mall. Lowry advised him to come in for treatment in several days. Claimant again visited Lowry on May 22, 1989, at which time Lowry placed claimant’s left arm in a cast from his fingers to the elbow.

Following the May 19 office visit with Lowry, but prior to the subsequent accident, Lowry told claimant he should stay off work for four weeks or until approximately June 20, 1989. According to claimant, Lowry never told him he was able to return to sedentary work prior to his second fall.

Claimant received a letter dated May 31, 1989, from respondent’s insurance carrier indicating sedentary work was available. Claimant immediately called both Dr. Lowry and Dr. Lang, medical director at the Fermi Lab, to explain that he had casts on both his leg and arm and could not walk. Dr. Lang, according to claimant, advised him on either June 2 or 3 that the letter had been sent prior to knowledge of the extent of claimant’s injuries and that it was sent in error.

Claimant again saw Dr. Lowry late in June 1989. The casts were removed from claimant’s arm and leg, and his leg was wrapped in an elastic bandage and an air splint. Claimant returned to Lowry on August 17 when Lowry prescribed extensive physical therapy. Although claimant acknowledged that his right ankle began to improve slowly, he testified that his knee, wrist, and thumb were still extremely painful and showed no improvement. At approximately this point in time, Lowry informed claimant that he could expect to have pain for at least 8 to 10 months during recovery.

Claimant then sought out Dr. Sawchyn. Claimant contended that he learned of Sawchyn’s name through inquiries at the University of Illinois Medical School and Hospital where he had been a student. Claimant saw Sawchyn on September 6, 1989.

Claimant testified that his ankle, knee, and wrist remain painful, he cannot walk properly, and has a problem negotiating stairs. Claimant also stated he attempted to solicit outside consulting work after his injuries but because this employment would have required travel and other physical activities, claimant did not find alternative work.

On cross-examination, claimant admitted that in July 1989 he and his wife went to the Caribbean for a vacation. He also stated he was able to perform sedentary work as of the date of the arbitration hearing, November 6, 1989. Finally, he acknowledged that during his last visit to Dr. Lowry, Lowry advised that he had only certified claimant to be off work until August 5,1989.

On re-cross-examination, claimant testified that the trip he and his wife took was a 30th wedding anniversary vacation that had been scheduled since December 1988.

Dr. Lowry, a board-certified orthopedic specialist, testified he first saw claimant on May 12, 1989, for a severe sprain to claimant’s right ankle. An X ray revealed no fractures, and claimant’s ankle was splinted and crutches were provided. Claimant’s next visit was on May 19 when a short leg cast was applied to the right ankle and the use of crutches was continued. Prior to May 19, Lowry wrote to respondent indicating that in the intermediate to near future it was possible claimant could return to sedentary work if it required only sitting.

Lowry again saw claimant on May 22 following his subsequent fall. A cast was placed on claimant’s right arm from his wrist to his elbow. At that time, Lowry did not believe claimant could perform any sedentary work because of his several injuries. On June 16, 1989, Lowry removed both casts and applied an air splint to claimant’s right ankle. Claimant was told to continue using crutches and to put weight on the leg only to the extent possible. As of June 16, 1989, Lowry was of the opinion claimant was still not able to perform any type of work. On June 23, 1989, Lowry prescribed physical therapy and certified claimant to be off work through July 15.

On July 14, 1989, Lowry saw claimant and certified him to be off work through August 5. A tentative appointment for August 4 was cancelled because it conflicted with claimant’s Caribbean vacation. It was reset to August 17, when, according to Lowry, he concluded claimant was capable of performing sedentary work even though claimant was walking with a severe and extremely noticeable limp. Lowry testified that as far as his records were concerned claimant had not been certified to be off work beyond August 5, 1989.

On cross-examination, Lowry was questioned about his May 12 letter to respondent indicating claimant might have been able to perform sedentary work. Lowry admitted that the suggestion in his letter that claimant might be able to work was conditioned upon claimant’s ability to allow his ankle to hang down for four to six hours a day and there was nothing of which Lowry was aware which would indicate claimant was capable of performing this activity. Lowry also admitted that his office notes contain no reference to any injury or treatment of claimant’s knee following June 16, 1989, despite claimant’s testimony he was having continuing difficulties with his knee and thumb which he was allegedly relating to Lowry.

Jo Ann Baaske, respondent’s payroll manager, testified to various amounts of workers’ compensation and sick pay paid to claimant. She stated that due to an internal accounting error claimant was apparently overpaid by approximately $2,500.

Respondent then offered the testimony of two witnesses, David Cathey, a personnel supervisor with respondent, and Donald Musil, a private detective. Claimant objected to the testimony of these two witnesses because neither was named as a potential witness in the response to claimant’s petition under section 19(b — 1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b—1)).

Respondent’s attorney countered that he did not know about the relevance of Cathey’s testimony until after the deadline for filing the section 19(b — 1) form had expired and was not aware until approximately 3 p.m. the previous day that Musil had been hired by respondent’s insurance company to secure information relevant to this case.

The arbitrator found counsel’s explanations insufficient and refused to admit the testimony of the two witnesses.

Ruth Crist, respondent’s assistant personnel manager, testified she was present at a prehearing conference several days prior to arbitration. While standing in a hallway, she observed claimant and a group of others emerge from a room. Claimant was walking in a perfectly normal manner, until he saw Crist, at which time he began limping.

The deposition of Robert Sawchyn, an orthopedic surgeon, was admitted. He examined claimant on September 6, 1989, for evaluation. According to Sawchyn, claimant’s right ankle demonstrated anterior instability resulting in pain and tenderness on movement. Ligament instability was described as mild to moderate.

Claimant’s right knee also showed significant tenderness, and, in Sawchyn’s opinion, claimant suffered from a tear to the meniscus. Claimant’s left hand was tender along the ulnar aspect of the HP joint of the thumb and also demonstrated ligament instability which affected claimant’s ability to pinch and grasp objects.

Sawchyn believed that physical therapy and bracing would be beneficial to claimant’s right ankle although surgical reconstruction of the ligaments might be required if the ankle did not respond. Because of the suspected meniscus tear, Sawchyn recommended arthroscopy for claimant’s knee, although he admitted the X rays did not necessarily demonstrate a tear of the meniscus. Sawchyn also suggested ligament reconstruction might be appropriate for claimant’s thumb.

Sawchyn again saw claimant on November 6, 1989. At that time, claimant’s thumb and knee had not improved although claimant’s ankle showed slight improvement. Sawchyn admitted claimant could perform some sedentary work if there was minimal ambulation required, and Sawchyn recommended a staged approach to claimant’s recovery beginning with the knee. Sawchyn estimated that 8 to 12 weeks would be required to resolve the problems in claimant’s knee and hand if reconstructive surgery was not required on claimant’s ankle.

On cross-examination, Sawchyn indicated that his notes revealed that claimant first saw him on a referral from claimant’s attorney. Sawchyn also admitted that, except for recommendations, he had not treated claimant for any of his medical problems. Sawchyn also stated that on claimant’s first visit he was walking without crutches and was not wavering or using braces or other artificial devices such as a cane.

The arbitrator awarded benefits, finding two compensable injuries occurred. Temporary benefits for both falls covered the period from the date of the initial injury through August 15, 1989. The arbitrator also found respondent was entitled to certain credits against temporary total and potential permanent partial disability for excess payments made to claimant. Finally, the arbitrator denied claimant’s request for penalties as well as a medical bill from Dr. Sawchyn because the examination was conducted for the purpose of giving testimony but not treatment.

The Commission modified the arbitrator’s decision by determining that the combination of the May 10 and 19 falls constituted but one injury. The Commission also increased the amount of temporary total disability to reflect the entire period between the original accident and the date of arbitration. The Commission also awarded penalties and fees under sections 19(k) and (1) and section 16 of the Act (Ill. Rev. Stat. 1989, ch. 48, pars. 138.19(k), (1), 138.16) because it found respondent unreasonably and unilaterally terminated benefits on June 2, 1989, at a time when claimant was still under a doctor’s care and respondent had been advised he was unable to return to work in any capacity. Finally, the Commission determined respondent was entitled to a potential credit for any excess payments under section 8(j) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(j)) and remanded the case to the arbitrator to determine what payments were made and the extent to which respondent was entitled to a credit, if any. The Commission concluded the evidence did not clearly establish that some of the payments qualified for section 8(j) credit.

On review, the circuit court confirmed the decision of the Commission, and respondent filed a timely notice of appeal.

Relying upon Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 541 N.E.2d 665, respondent argues claimant failed to establish that his initial injury, stepping off a stoop, arose out of his employment. In Caterpillar, claimant stepped off a seven- to eight-inch curb onto a blacktop driveway in front of his place of employment. There was a slight cement slope between the curb and the driveway. Claimant’s foot landed midway between the cement incline and the blacktop, and he twisted his ankle. The driveway was part of the company premises and was used by both employees and the general public. No evidence was presented of holes, rocks, or other obstructions on the pavement. The supreme court concluded claimant did not establish his injury arose out of his employment upon the finding there was nothing in the record to indicate the curb was either defective or hazardous and, therefore, the condition of the premises did not contribute to the injury. The court also found claimant did not demonstrate he was exposed to a risk not common to the general public since curbs, and the risks inherent in traversing them, confront all members of the public.

Respondent contends this case is indistinguishable from Caterpillar because the evidence only shows that claimant stepped down from a “stoop,” the area in which the accident occurred was not restricted to Fermi Lab employees, and there was no showing the stoop was defective. Respondent argues this court should discount or ignore claimant’s testimony that when he stepped down, he stepped onto rocks under foot which gave way as he transferred his weight from one foot to another. Respondent suggests that this testimony at arbitration was the first time there was any hint that rocks were located underneath claimant’s foot and, at most, the testimony proves nothing more than that claimant stepped to the surface of a gravel road.

No one at arbitration elicited any detailed testimony concerning the condition of the site of the injury. The record does not demonstrate whether the ground beneath the stoop was a gravel or paved or concrete surface. No one cross-examined claimant about his testimony or contradicted his statement that he stepped onto rocks. Even the height of the “stoop” is unknown.

We conclude a reasonable inference which the Commission was entitled to draw, in the absence of qualifying or illuminating evidence on this point, was that the rocks onto which claimant stepped were not natural to the surrounding area and could, therefore, be considered a “defect.” Given this inference, questions of whether the risk was common to the general public and whether the general public had access to the area are irrelevant. Had respondent wished to clarify the circumstances under which the fall occurred, it could have easily done so by cross-examination. If anything, it is respondent who is engaging in speculation when it suggests that there were either no rocks at the point of injury or the rocks were simply part of a gravel road. Neither claim is supported by this record. The Commission’s determination that claimant suffered an accidental injury arising out of his employment is not against the manifest weight of the evidence.

Respondent next contends claimant’s second fall is not compensable because it was the result of claimant’s negligent conduct in attempting to traverse a wet tile or stone floor on crutches. Respondent maintains this is an intervening incident which breaks the causal connection and severs respondent’s liability for the subsequent additional injuries. We disagree.

But for the first injury, claimant would not have been using crutches. Claimant also testified he never used crutches before, did not know how to use them, was not instructed in their use, and was not sure he had ever been fitted for the crutches when they were first given him.

The Commission’s determination that the subsequent accident was a natural consequence flowing from the original fall is not against the manifest weight of the evidence. As the supreme court stated in International Harvester Co. v. Industrial Comm’n (1970), 46 Ill. 2d 238, 245-47, 263 N.E.2d 49, 53-54:

“Where the work injury itself causes a subsequent injury, however, the chain of causation is not broken. *** ***
*** [I]f a nonemployment-related factor is a contributing cause, with the compensable injury, in an ensuing injury or disability, it does not constitute an ‘independent intervening cause’ breaking the causal connection where it is not brought about by claimant’s intentional or negligent misconduct.”

Although there are no cases in Illinois which have considered the use of crutches, the weight of authority from other jurisdictions clearly suggests that the mere use of crutches is not negligence since maneuvering around on them is a natural and ordinary activity of a person who has sustained a leg injury. (See 1 A. Larson, Workers’ Compensation Law §13.12(c), at 3 — 561 n.56 (1990), citing Dickerson v. Essex County (1956), 2 A.D.2d 516, 157 N.Y.S.2d 94.) In Larson’s view, negligence breaking the causal connection takes the form of rashly undertaking a line of action with knowledge of the risk created by the weakened member. (1 A. Larson, Workers’ Compensation Law §13.12(c), at 3 — 559 (1990).) Attempting to walk to a bathroom, even upon a wet floor, would hardly seem to qualify as a rash undertaking. (Cf. 1 T. Angerstein, Illinois Workmen’s Compensation §495, at 344 (1952).) The Commission’s determination that the two falls constituted a single compensable accident is not against the manifest weight of the evidence.

Respondent next contends that the Commission erred in extending the period of temporary total disability beyond that set by the arbitrator, August 15, 1989. Respondent points to the testimony of Dr. Lowry that claimant was able to return to sedentary work as of August 17, 1989, and had only been certified by Lowry to be off work until August 5, 1989. In addition, claimant admitted he was capable of sedentary work, and there is no showing that his condition changed materially between the period of late August 1989 through the date of arbitration.

Although claimant suggests there is no evidence that Dr. Lowry ever released him to return to work, this claim is less than candid in the face of the fact that Dr. Lowry clearly stated he had not approved claimant to be off work beyond August 5, 1989, and claimant immediately discontinued his treatment with Lowry after August 17, 1989, the date Lowry advised claimant of this fact.

Claimant’s reliance upon the testimony of Dr. Sawchyn is also not determinative. Although Sawchyn suggested claimant would need a substantial period of recuperation because of his various injuries, this observation was predicated upon the need for reconstructive surgery to one or more aspects of claimant’s body. There was no testimony suggesting claimant had any present intention of undergoing future surgery. In addition, as of August 17, 1989, when claimant stopped seeing Dr. Lowry, the casts from both his arm and leg had been removed; and as of September 6, 1989, when claimant saw Dr. Saw-chyn, he was able to walk without the use of artificial devices such as crutches, a cane, or a brace. For these reasons, we agree that the determination that claimant’s temporary disability extended beyond the date set by the arbitrator is against the manifest weight of the evidence.

Respondent also contends that because Dr. Lowry’s notes reveal no reference to a knee injury after June 16, 1989, any actual or suspected meniscus tear diagnosed by Dr. Sawchyn is not causally related to claimant’s injury. This argument is without merit. There is no indication claimant suffered any injury to his knee other than that which occurred when he fell on the wet floor. That the knee problem may have initially resolved itself or the extent of the injury might have gone undiagnosed by Dr. Lowry does not entail that a subsequently diagnosed, more serious condition is not causally related to the initial injury. Respondent points to no other intervening incident, demonstrated of record, by which claimant might have reinjured the knee in some nonwork-related manner. The evidence supports the Commission’s determination that claimant’s current knee condition, whatever it might be, is causally related to his accident.

Respondent also argues the Commission should not have awarded penalties and attorney fees because the issue of claimant’s second injury was, in the arbitrator’s words, “keenly” contested. This argument is without merit. Respondent unilaterally stopped paying benefits on June 2, 1989. That decision was made in the face of written correspondence from Dr. Lowry to respondent which indicated claimant was unable to work. In the first letter, dated May 12, 1989, Lowry advised respondent that claimant was to be kept off work until May 18. In a second letter dated May 19, 1989, after claimant’s office visit but prior to his second fall, Lowry wrote:

“The patient is presently scheduled to be off of work through June 20, 1989, however I did advise him that if he is able to let the ankle hang down for four to six hours at a time, he could consider returning to work to a sedentary position.”

Claimant testified to receiving a letter dated May 31, 1989, from respondent indicating sedentary work was available. The undisputed testimony is that claimant immediately contacted Dr. Lowry and Dr. Lang, medical adviser to the Fermi Lab, to advise that he was unable to work at any job because of the additional injuries he suffered subsequent to the letter prepared by Dr. Lowry on May 19, 1989.

By further letter dated June 1, 1989, Dr. Lowry advised respondent that he had seen claimant on May 22, following his fall in the Marshall Field store. After describing claimant’s condition, Dr. Lowry concluded:

“For this reason I would expect the patient to remain off of work for approximately four or five weeks after sustaining this sprain as he will be in a cast during that period of time. The patient is now presently in two casts, one on his left upper extremity, and one on his right lower extremity, which precludes his effective ambulation for any significant distance and precludes his driving.”

It is, therefore, beyond dispute that respondent’s unilateral termination of benefits occurred at a time when it was aware that claimant’s treating physician had specifically indicated claimant was unable to perform work in any capacity because of his combined disabilities. Although respondent suggests that the inability to work was a result of the second, rather than the first injury, the plain terms of the doctor’s June 1 letter require a different conclusion. The cast on claimant’s leg prevented him from walking or driving. The cast was placed on his leg because of the ankle injury sustained in the original, not the subsequent, accident.

The intent of the penalty provisions of the Act is to “implement the Act’s purpose to expedite the compensation of industrially injured workers and penalize an employer who unreasonably, or in bad faith, delays or withholds compensation due an employee.” (Avon Products, Inc. v. Industrial Comm’n (1980), 82 Ill. 2d 297, 301, 412 N.E.2d 468, 470.) If an employer acts in reliance upon qualified medical opinion and disputes whether the employment was related to the alleged disability, penalties are not ordinarily imposed. (O’Neal Brothers Construction Co. v. Industrial Comm’n (1982), 93 Ill. 2d 30, 442 N.E.2d 895.) This is a factual question left to the Commission to resolve, and the Commission’s determination will not be disturbed unless it is against the manifest weight of the evidence. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 20, 442 N.E.2d 883.) The burden of proof of the reasonableness of its conduct is on the employer. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 442 N.E.2d 861.) Respondent’s argument that it was relying on Dr. Lowry’s May 19 letter which suggested the possibility of sedentary employment lacks credibility in the face of a follow-up letter dated June 1, 1989, subsequent to claimant’s second fall, which clearly superseded any suggestion in the earlier letter that claimant was able to return to work in any capacity due to his several injuries. The Commission’s determination that respondent’s termination of benefits was unreasonable and vexatious is not against the manifest weight of the evidence, and its assessment of penalties and attorney fees is clearly appropriate. In view of our disposition reducing the amount of temporary total benefits, however, the case will be remanded to the Commission for recalculation of penalties and attorney fees under sections 19(k), (1), and 16 of the Act.

Respondent next argues the Commission erred in remanding the matter for a determination of the exact amount of credit which it was due under section 8QX2) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(j)(2)). Respondent contends the evidence at arbitration was clear and the Commission should have made this determination. The Commission, on the other hand, concluded the record was not clear and remanded to the arbitrator for the purpose of clarifying the issue. Respondent has not suggested how it has been injured by the Commission’s action, especially when one considers that the Commission granted respondent the substantive potential relief to which it claimed it was entitled, a potential credit for overpayment of benefits.

Finally, respondent contends the arbitrator and Commission erred in not permitting it to present the evidence of two witnesses because their names had not been included in the employer’s response to claimant’s section 19(b — 1) petition for emergency hearing. That section provides, in part:

“No document or other evidence not previously identified by either party with the petition or written response, or by any other means before the hearing, may be introduced into evidence without good cause. If, at the hearing, material information is discovered which was not previously disclosed, the Arbitrator may extend the time for closing proof on the motion of a party for a reasonable period of time which may be more than 30 days.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b—1).

Respondent contends that counsel’s statements at arbitration to the effect that he had only recently discovered the existence or relevance of the potential testimony from claimant’s supervisor and the private investigator constitute good cause. This argument is without merit. In the first instance, the arbitrator observed that there was a procedural means by which a petition or response could be amended and respondent had not availed itself of this opportunity. In addition, respondent did not request an extension, permitted under the Act, to enlarge the time for closing the proof. Finally, counsel made no offer of proof as to what the testimony of either witness might have been. Under the circumstances, the decision to refuse admission of the testimony of the two witnesses was not error.

For the foregoing reasons, the judgment is modified to the extent that the award for temporary total disability is reduced to the period between May 10, 1989, and August 15, 1989. The case is remanded to the Commission for recalculation of penalties and attorney fees in accordance with this opinion. In all other respects, the Commission’s decision is affirmed.

Affirmed as modified and remanded.

RAKOWSKI, WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICARDO F. MALDONADO, Defendant-Appellant.
    Second District
    No. 2—90—0425
    Opinion filed January 30, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, Robert C. Cooper, of State Appellate Defender’s Office, of Chicago, and John R. Wimmer, of Downers Grove, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Ricardo F. Maldonado, was found guilty following a jury trial of the offenses of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2), unlawful delivery of more than 15 grams but less than 100 grams of a controlled substance containing cocaine (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1401(a)(2)) and unlawful possession of more than 15 grams but less than 100 grams of a substance containing cocaine (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1402(a)(2)). Defendant was sentenced to concurrent 15-year terms of imprisonment for the armed violence and unlawful delivery offenses. He was also assessed a street value fine in the amount of $5,600 and was ordered to pay court costs.

Defendant raises three issues on appeal: (1) whether the trial court erred by refusing to submit jury instructions regarding the offense of unlawful use of weapons as a lesser included offense of armed violence; (2) whether the evidence supported the $5,600 street value fine imposed; and (3) whether the cause should be remanded for correction of the mittimus and written judgment and sentence.

At trial, the testimony revealed that a confidential informant approached defendant regarding purchasing two ounces of cocaine. Defendant later met the informant and Brian Lucas, a Hoffman Estates police officer assigned to the Metropolitan Enforcement Group (MEG), an undercover narcotics investigation group, at the bar area of a Holiday Inn. A price of $2,700 was agreed upon for the cocaine. Defendant left for a few minutes and then returned and motioned for Lucas to follow him. They went into a hallway. Lucas showed defendant the money, and defendant handed Lucas two plastic baggies which contained white powder. Lucas then activated a signal, and other agents came into the Holiday Inn to arrest defendant. When defendant saw two of the agents coming in, he pulled a handgun from inside of his belt. Defendant then ran. According to Lucas, defendant ran into a locked men’s room door at which time the handgun fell to the ground. Defendant testified that he threw the gun to the ground. Defendant was then arrested.

Lucas testified that he recovered the handgun. It was a silver-plated .32 caliber automatic and was loaded with eight bullets. A forensic scientist testified that the two baggies of white powder contained a total of 53.6 grams of a substance containing cocaine.

Following the testimony, a jury instructions conference was held. Defendant requested an instruction regarding the offense of unlawful use of weapons, asserting that this offense was a lesser included offense of armed violence. The requested instruction stated:

“A person commits the offense of unlawful use of weapons when he knowingly carries a firearm concealed on or about his person except when on his land, in his abode, or in his fixed place of business.”

Defendant acknowledged that concealment, an element of unlawful use of weapons, was not “strictly speaking” an element of armed violence. He argued, however, that the test was whether “the jury could possibly find the defendant guilty of the greater, in this case armed violence, without also finding him guilty of the lesser, in this case unlawful use of weapons.” Defendant concluded that this test was met because there was “no way under the facts of this case that the defendant could be found guilty of armed violence unless he were also found guilty of unlawful use of weapons.” The court, however, determined that unlawful use of weapons was not a lesser included offense of armed violence and refused the instruction.

The armed violence instruction given to the jury stated:

“A person commits armed violence when he commits the offense of Unlawful Possession of Controlled Substance while armed with a dangerous weapon.
A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a handgun.”

The jury found defendant guilty of the offenses of armed violence, unlawful delivery of more than 15 grams but less than 100 grams of a substance containing cocaine and unlawful possession of more than 15 grams but less than 100 grams of a substance containing cocaine. Defendant filed a motion for judgment notwithstanding the verdict or for a new trial. He raised, among other things, the issue of the court’s failure to give an instruction regarding the offense of unlawful use of weapons.

Defendant’s motion was denied, and a sentencing hearing was held. The court sentenced defendant to a term of 15 years’ imprisonment for the armed violence offense and a concurrent term of 15 years’ imprisonment for the unlawful delivery offense. The court also ordered defendant to pay court costs and assessed a street value fine of $5,600. The court also stated that the unlawful possession charge would be dismissed as it was a lesser included offense of armed violence. However, the mittimus states that defendant was convicted of all three offenses and that a term of imprisonment of 15 years was imposed as to each offense, to run concurrently. Defendant filed a timely notice of appeal.

On appeal, defendant first argues that the trial court erred by refusing to submit the instruction regarding the offense of unlawful use of weapons to the jury. He contends, relying on People v. Bryant (1986), 113 Ill. 2d 497, and People v. Roberts (1989), 189 Ill. App. 3d 66, that a trial court is required to give the included offense instruction “when the elements of the included offense are, in a broad sense, included in the offense charged and the evidence that develops at trial proves the included offense.” (Roberts, 189 Ill. App. 3d at 74.) He asserts that, in this cause, the evidence justified giving instructions on the lesser charge.

The State argues that, based on this court’s decision in People v. Booker (1991), 214 Ill. App. 3d 286, and based on People v. Schmidt (1988), 126 Ill. 2d 179, defendant was not entitled to a jury instruction regarding an offense of which he could not be convicted. We agree.

This court, in Booker, held that the rule set out in Schmidt “must be followed when a court is presented with the issue of whether an instruction on a lesser uncharged offense should be given.” (Booker, 214 Ill. App. 3d at 289.) The court in Schmidt held that an accused cannot be convicted of an offense that was not charged unless that offense is a lesser included offense of the one charged. (Schmidt, 126 Ill. 2d at 183; see also People v. Austin (1991), 216 Ill. App. 3d 913, 916.) Therefore, under Schmidt, an instruction on a lesser, uncharged offense may not be given unless that offense is a lesser included offense of the offense charged. (Austin, 216 Ill. App. 3d at 916; Booker, 214 Ill. App. 3d at 288-89.) Defendant’s reliance on Bryant is therefore misplaced. Bryant relied on People v. Dace (1984), 104 Ill. 2d 96. We conclude, as we did in Booker, that Schmidt is irreconcilable with Dace and Bryant and that Schmidt must be followed. Booker, 214 Ill. App. 3d at 289.

The critical inquiry therefore is whether the offense of unlawful use of weapons is a lesser included offense of armed violence. A lesser included offense is an offense which contains some but not all of the elements of the greater offense and contains no element not included in the greater. (People v. Newbern (1991), 219 Ill. App. 3d 333, 352; see also Ill. Rev. Stat. 1989, ch. 38, par. 2—9.) It is therefore impossible to commit the greater offense without committing the lesser included one. (Austin, 216 Ill. App. 3d at 916.) Defendant was not entitled to the requested instruction unless all of the elements of unlawful use of weapons are also elements of armed violence. (See Booker, 214 Ill. App. 3d at 288.) Defendant has essentially conceded that that is not the case.

Section 33A — 2 of the Criminal Code of 1961 (Code) states that a “person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2.) The relevant portion of section 24 — 1 of the Code, however, provides:

“A person commits the offense of unlawful use of weapons when he knowingly: * * *
(4) Carries or possesses *** concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm.” Ill. Rev. Stat. 1989, ch. 38, par. 24—1(a)(4).

Under this portion of the statute, an element of the offense of unlawful use of weapons is that the firearm be concealed. (People v. Schuford (1977), 50 Ill. App. 3d 408, 410.) Another material element of the offense of unlawful use of weapons is that the possession occur while the defendant is not on his own land or in his abode or fixed place of business. (People v. Preston (1978), 61 Ill. App. 3d 434, 437.) Neither of these elements is an element of the offense of armed violence. A person clearly could commit the offense of armed violence without committing the offense of unlawful use of weapons. The offense of unlawful use of weapons is not a lesser included offense of the offense of armed violence, and the instruction was properly refused.

Defendant next argues, relying on People v. Taliferro (1988), 166 Ill. App. 3d 861, that the street value fine of $5,600 must be reduced because there was no evidence that the street value of the controlled substance seized was $5,600. The testimony at trial was that the sale price agreed upon was $2,700. The State contends that our recent decision in People v. Garcia (1991), 217 Ill. App. 3d 350, is dis-positive of this issue. Again, we agree with the State.

In Garcia, the defendant similarly argued that there was insufficient evidence to support the $8,500 fine imposed. We noted that we held in People v. Pehrson (1989), 190 Ill. App. 3d 928, 933, that section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—1.1) mandates only a minimum street value fine. We recognized in Garcia that other appellate districts had suggested, if not explicitly held, that the section provides for a mandatory fine equal to the demonstrated street value of the substance at issue, including the fourth district in Taliferro (166 111. App. 3d at 866). We stated, however, that we found no reason to divert from our decision in Pehrson and determined that, as the fine imposed was not less than the lowest street value evidenced, it complied with the mandate of section 5 — 9—1.1. (Garcia, 217 Ill. App. 3d at 351-52.) We must reach the same conclusion here.

Defendant’s final contention on appeal is that the cause should be remanded for correction of the mittimus as it incorrectly states that a judgment of conviction was entered on all charges. The State has conceded that the mittimus should be corrected because the court did not enter judgment on the offense of unlawful possession of a controlled substance. We note that the court dismissed that charge, and we agree that the mittimus must be corrected to show that no conviction or sentence was entered regarding the offense of unlawful possession of a controlled substance.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed. The cause is remanded to the trial court with directions to correct the mittimus in accordance with this opinion.

Affirmed and remanded.

WOODWARD and INGLIS, JJ., concur.