author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANNING JACKSON, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—1006
    Opinion filed May 31,1991.

      Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Elizabeth A. McDevitt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Manning Jackson, was found guilty of residential burglary and of robbery. The court sentenced him to an extended term of 30 years for residential burglary, and a seven-year concurrent term for robbery. Defendant contends on appeal that the trial court erred in refusing to grant his trial-day request for a continuance; that the trial court’s failure to conduct a Batson hearing denied him the right to prove a prima facie case of racial discrimination; that the court erred in refusing to give an instruction to the jury that a defendant may waive his constitutional right to be present at trial; that the imposition of an extended sentence for residential burglary was improper; and that the sentence imposed was excessive.

The pertinent facts are as follows. The victim, Nathan Coleman, is afflicted with muscular dystrophy and a speech impediment. The victim shared an apartment with his uncle, Clark Minniefield, at 6401 South Woodlawn, Chicago. On December 1, 1986, the victim left home with defendant, Minniefield and another neighbor, Flossie Kirksey, to go to the currency exchange to pick up the victim’s monthly disability check. En route to the currency exchange, the defendant was dropped off at the elevated station at 63rd and University.

The victim testified that he cashed his disability check at the currency exchange and went grocery shopping. The victim kept $76 in cash from the proceeds of the check and gave the remainder to Minniefield. Minniefield then dropped the victim and Kirksey off at the apartment building. Kirksey returned to her own apartment.

The victim stated that his apartment door would not open when he inserted the key, but that the door did open with a gentle push. The victim immediately entered the washroom. Upon exiting the washroom, the victim heard a noise in the kitchen. The victim testified that the defendant came out from the kitchen toward him, knocked him down, and began hitting him on his chin and face. Defendant took the $76 from the victim’s shirt pocket. The victim could not get up, and defendant kicked him in the ribs several times. (The victim sustained a fractured rib.) Defendant took a videocassette recorder and put it into a gym bag before leaving the apartment. The victim heard voices in the hall and recognized the voice of his neighbor, Moses Bell. The victim called out for help, and Bell entered the apartment.

The victim testified that he became acquainted with defendant through the victim’s uncle, who also lived in the building. The victim testified that he had known defendant for only a few days and never had a conversation with him prior to this incident. The victim testified that he does not drink alcohol or use cocaine. Defendant had never been in his apartment before.

Moses Bell testified for the State that he entered the apartment and asked the victim what happened to him. The victim replied that “Manny got to me.” Bell wiped the blood from the victim’s face, and then went over to Kirksey’s apartment to call the police.

Chicago police officer Randall Robinson testified that he responded to a radio assignment that a robbery had occurred at 6104 Woodlawn. Robinson entered the victim’s apartment and found that it was disorderly; the bed was pushed out and a chair was overturned, and there was blood on the floor. The victim was confused and bleeding from his mouth.

The victim’s uncle, Clark Minniefield, testified for the defense that defendant had been present in his apartment with the victim several times, and that they all drank together. Minniefield stated that the victim drinks occasionally, in small amounts, but that he does not use cocaine. Minniefield testified that he owned the videocassette recorder stolen in the robbery.

Defendant testified that he has known the victim for approximately eight years and has been in his apartment several times. Defendant testified that on December 1, 1986, he and the victim arranged to meet back at the victim’s apartment to use defendant’s cocaine. After the victim picked up his check from the currency exchange, he was supposed to pay defendant for his portion of the cocaine. The victim did not want his uncle to know that he used cocaine.

Defendant further testified that he met the victim and Kirksey in the lobby of the apartment building after Minniefield dropped them off. The three of them rode up in the elevator together. Once inside the apartment, the victim explained that he did not have the money; that he had given all of his money to his uncle because his uncle did not want him to “drink up” or otherwise waste the money.

Defendant testified that the victim told him that he would give defendant the videocassette recorder in lieu of the money so that he could have the cocaine. Confusion ensued once defendant proceeded to disconnect the videocassette recorder. Defendant stated that as he attempted to put the videocassette recorder into a bag, they struggled over a knife. Defendant received a cut on his hand, and he was bleeding inside the apartment and his blood was on the victim. Defendant stated that he hit the victim and knocked him to the ground, and that he believed that he hurt the victim when he struck him. Defendant tried to help the victim, but the victim was screaming at him. Defendant then left the apartment with the recorder in a gym bag that previously contained the tools for the cocaine.

Defendant stated that he was aware of the victim’s disability and that the victim experienced difficulty walking. Prior to the date of the incident, the victim had paid for and used cocaine with defendant on three occasions. Defendant denied kicking the victim.

Flossie Kirksey testified for the defense that on December 1, 1986, defendant was dropped off at the elevated station. Kirksey accompanied the others to the currency exchange to pick up the victim's monthly disability check. Upon returning from the exchange, Kirksey and the victim returned to their respective apartments. Kirksey did not see defendant in the apartment building when she returned with the victim.

The jury rejected the testimony of defendant and accepted that of the victim and found defendant guilty of residential burglary in violation of section 19 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3(a)), a Class 1 felony, and robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(a)), a Class 2 felony. Prior to sentencing, the trial judge allowed defendant the opportunity to explain the reason for his absence on the last day of trial. Defendant chose not to offer any explanation. Defendant had no prior convictions.

Kathleen Youngerman testified for the State at the hearing in aggravation and mitigation. She testified that on January 14, 1983, defendant attacked her in the washroom at her place of employment. She stated that defendant punched her in the eye, face, and head; kicked her; threw her to the ground and attempted to remove her pantyhose. As a result of the incident, she received approximately nine stitches in her upper lip, suffered an inner ear concussion, contusions, abrasions, and a hairline fracture above her nose.

Pursuant to section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2), the judge considered the following factors in aggravation applicable under the circumstances: defendant’s attack on the victim was conduct that caused or threatened serious harm; that defendant had a history of prior delinquency or criminal activity; and that he should be categorized as a repeat violent offender. The judge found that the beating of the victim, a handicapped person, was accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty” as set forth in section 5 — 5—3.2(bX2) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(2)). The judge considered the victim a handicapped person within the meaning of section 5 — 5—3.2(b)(3)(iii) as another factor in aggravation, and that defendant was aware of the victim’s disabilities but nevertheless beat and viciously kicked him.

In mitigation, the judge considered the presentence investigation which revealed that defendant grew up in a family of eight children in Chicago. Defendant had never been married, but stated that he had five children from relationships with four women that he supported.

After considering the factors in aggravation and mitigation, the judge sentenced defendant to an extended term of 30 years for residential burglary and a concurrent term of seven years for burglary.

We first consider defendant’s argument that he was denied his constitutional right to counsel of choice when the court denied his trial-day request for a continuance to retain private counsel. Defendant contends that he was unaware that his case was set for trial on January 26, 1988. He also maintains that he wanted the victim’s neighbor to testify for the defense, but knew only that her first name was Flossie.

The record reveals that the matter had been continued five times prior to the 1988 date. On the day of trial, the assistant public defender informed the court that prior to lunch defendant wanted a jury trial, but after lunch defendant’s mother wanted him to hire a private attorney. Defendant had never contacted the assistant public defender about the identity of the witness. The trial court denied the motion for a continuance.

It is well established that a trial court’s determination of whether to grant a defendant’s trial-day request for a continuance to allow time to obtain counsel requires a balancing of the interest in trying a case with due diligence against defendant’s constitutional right to counsel of choice. (See People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067; People v. Lewis (1988), 165 Ill. App. 3d 97, 518 N.E.2d 741.) The decision to grant or deny a motion for a continuance lies in the sound discretion of the court. Ill. Rev. Stat. 1985, ch. 38, par. 114 — 4(e); People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229.

This court has continuously held that where private counsel has been retained or counsel’s appearance is on file, it is an abuse of discretion to deny a continuance and to proceed to trial without the presence of defendant’s chosen counsel or verifying the claim of employment of counsel. (People v. Payne (1970), 46 Ill. 2d 585, 264 N.E.2d 167; People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116; People v. Lewis (1988), 165 Ill. App. 3d 97, 518 N.E.2d 741.) However, in instances where circumstances reveal that a motion for continuance is based on a defendant’s desire to retain private counsel, denial of the continuance will be a proper exercise of judicial discretion if new counsel is unidentified or does not stand ready, willing, and able to make an unconditional entry into the case. (People v. Lewis, 165 Ill. App. 3d at 103, citing People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.) Where defendant fails to articulate an acceptable reason for desiring new counsel and is already being represented by an experienced, court-appointed criminal lawyer, it is not an abuse of discretion to deny defendant’s trial-day request for a continuance. People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684.

Applying these principles to the facts in this case, we conclude that the trial court did not abuse its discretion in denying defendant’s request for a continuance. Defendant had not taken the preliminary step of identifying private counsel, who was unavailable at the time of trial. Defendant never indicated prior to the afternoon the trial was scheduled to commence that he wanted to retain private counsel, nor did he submit to the court a definite time period within which he would be prepared to proceed to trial. We also note that on November 24, 1987, this case was set for trial on November 26, 1988. Thereafter defendant made no attempt to provide the public defender with the full name of the witness whom he wished to testify in his defense. (It should be noted that Flossie Kirksey testified for the defense at trial.) It is apparent that defendant was merely attempting to delay the trial with his last-minute request. Therefore, we find no abuse of discretion in the court’s denial of defendant’s desire to retain private counsel.

We find no merit in defendant’s next argument that the trial court’s failure to conduct a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719, constitutes a denial of his right to prove a prima facie case of racial discrimination in the State’s exercise of its peremptory challenges.

An examination of the record reveals how little substance there is in the Batson challenge in the present case. At the conclusion of the jury selection, defense counsel stated that he was making a Batson motion in order to protect the record. Before the trial court or the State had an opportunity to comment, defense counsel announced that he was mistaken about the composition of the jury, that he was withdrawing his Batson motion, and that there was no need for the court to rule on the motion. The judge stated that he had not noticed any Batson violation, and swore in the jurors who had been agreed upon. The trial court did not err in not conducting a Batson hearing.

Defendant also contends that the trial court erred by refusing to instruct the jury that a defendant in a criminal trial may waive his constitutional right to be present at trial, and that his absence could not be considered in any way in arriving at a verdict.

Initially we note that the judge admonished defendant after he arrived late on the first day of trial. The record indicates that defense counsel informed defendant after the admonishments that he could be tried in absentia.

Defendant returned to court on the day following his testimony and asked the court clerk if the defense or State had found Kirksey. When the clerk replied that the State had located Kirksey, defendant remarked that “they got to her already” and asked the clerk the length of the sentence he would receive if found guilty. The judge personally observed the defendant leaving the courtroom with his jacket underneath his arm. The judge proceeded with the trial, concluding that defendant willfully absented himself from the courtroom and the building.

After discussing defendant’s departure with the prosecutor and defense counsel, the judge informed the jury of defendant’s absence as follows:

“Ladies and gentlemen, as you can see from looking around the courtroom, the defendant is not here. Now, he was here earlier, but left. We do not know where he is after strenuous attempts to try to find out where he is.
Now, we don’t know why he’s not here. He was here earlier, but you are not to hold that against him in any way in deciding this case. I have decided, within my discretion, to proceed with the case, notwithstanding his absence, at this time.”

Defendant had a case pending in another courtroom; however, the sheriff was unable to locate defendant in that courtroom.

At the conclusion of trial, defense counsel requested an additional jury instruction stating that the absence of the defendant is not to be held against either side. The trial judge denied the request, finding that it was unnecessary to render any additional instruction because the jury had already been informed not to allow defendant’s absence to affect its decision. The judge ordered the State to refrain from incorporating into their closing arguments that flight is evidence of guilt.

Defendant’s attempt to draw an analogy between the constitutional right not to testify in one’s own behalf at trial to the right to be present at trial must fail. While the defendant has a constitutional right not to testify, there is no constitutionally protected right to be absent from trial. People v. Smith (1989), 189 Ill. App. 3d 80, 544 N.E.2d 1162; People v. Wheeler (1989), 186 Ill. App. 3d 422, 542 N.E.2d 524.

Review of the record reveals that defendant willfully decided to leave the courtroom under the mistaken belief that Kirksey would testify for the State. The judge adequately explained defendant’s absence to the jury at that time. The jurors were also instructed that they should consider only the testimony of witnesses and exhibits in reaching their verdict. Additionally, closing arguments did not contain any mention that defendant’s absence from trial was evidence of guilt. (People v. Smith (1989), 189 Ill. App. 3d 80, 544 N.E.2d 1162.) The trial court properly denied defendant’s request for an additional instruction.

Defendant also contends that the trial court improperly sentenced him to an extended term on the residential burglary conviction. The primary thrust of this argument is that a trial court may not impose an extended term for residential burglary. Defendant asserts that residential burglary is a crime against property, not against an individual, and that the offense is complete once the accused enters the residence, in this case to take Coleman’s VCR. Thus, even when the trial court found that brutal or heinous behavior accompanied the subsequent beating and taking of money from the victim, whom the trial court determined to be physically handicapped (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(b)(2), (bX3), defendant argues that it could have no impact in permitting an extended term for residential burglary.

In People v. Anderson (1985), 142 Ill. App. 3d 240, 488 N.E.2d 557, this court rejected the same argument. In that case, defendants broke into the home of a blind, 63-year-old woman. In rejecting the argument that extended-term sentences for residential burglary were improper because the offense was not “committed against” the victim as required under the statute, the court stated:

“It is apparent that the legislature, in enacting section 5 — 5— 3.2(bX3), determined that felonies committed against the elderly, young and handicapped warrant more severe punishment as these individuals are the least able to protect themselves from and are the most traumatized by the commission of felonies. In keeping with this legislative intent, we believe that the legislature intended for this provision to apply to the offense of residential burglary.” People v. Anderson, 142 Ill. App. 3d at 242, 488 N.E.2d at 558.

We agree fully with the Anderson decision. And we observe that in the present case not only was the victim handicapped, but he was traumatized by brutal and heinous conduct on the part of the defendant.

When discovered in the apartment, defendant administered a vicious beating to the victim, handicapped by muscular dystrophy. The victim had trouble walking and a speech impediment. Indeed, defendant admitted at trial that he knew the victim was handicapped. Nevertheless, defendant bloodied and knocked the victim to the ground and then kicked him several times, causing a fractured rib. The trial court properly exercised its discretion in imposing an extended term for residential burglary.

Defendant’s final contention concerns the length of the imprisonment imposed by the trial court. Defendant argues that even if an extended term for residential burglary is permissible, the maximum term of 30 years is excessive and does not take into consideration his rehabilitative potential.

Generally, a trial court is in a better position to determine the punishment to be imposed than is the court of review. As succinctly expressed in People v. Jackson (1986), 140 Ill. App. 3d 318, 326, 488 N.E.2d 1056, 1062:

“A reasoned judgment as to the proper sentence to be imposed depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. The trial court, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors superior to that afforded by the cold record on review.”

Prior to the imposition of the sentence, the trial judge heard Youngerman’s account of defendant’s brutal attack upon her in the washroom of her place of employment. In accord with section 5 — 5—3.2(a)(3) (111. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(a)(3)), the judge could properly weigh this testimony of defendant’s prior criminal activity in imposing a more severe sentence upon defendant. Although defendant had no prior convictions, the trial judge found defendant to be an “anti-social criminal without a conscience, a vicious person.” The record also indicates that in mitigation the court considered defendant’s family background and the fact that the 29-year-old defendant had five children by four different women.

A trial court’s sentence may not be altered on appeal absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Upon careful review of this record, and mindful of the brutal and vicious conduct of defendant, we find that the trial court acted within its discretion in imposing the 30-year sentence, and we will not disturb that finding on review.

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

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN SOLIS, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—0758
    Opinion filed June 13,1991.

      Arthur E. Engelland, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Marie Quinlivan Czech, Special Assistant State’s Attorney, and Renee Goldfarb and Judith Hannah, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, Martin Solis, defendant, was found guilty of attempted murder (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4) and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4). The trial court found that the offense of aggravated battery merged into the attempted murder conviction. Defendant was sentenced to a term of six years in the Illinois Department of Corrections.

The following issues are before this court for review: (1) whether the People proved beyond a reasonable doubt that defendant had the requisite intent to kill; (2) whether the trial court erred when it refused to instruct the jury on the lesser offense of reckless conduct; (3) whether the jury was correctly instructed on the offense of attempted murder; and (4) whether the verdicts finding defendant guilty of both attempted murder and aggravated battery are legally inconsistent.

We affirm.

Michael Lavin was the victim of a stabbing. Lavin is 6 feet in height, and he weighed over 200 pounds. He arrived in Chicago, Illinois, on June 25, 1988, with three friends. The group traveled to Chicago in order to view a Chicago Cubs baseball game at Wrigley Field on that same day. After the game, Lavin’s friends wanted to remain in the vicinity of Wrigley Field, but he decided to return to his room at the Days Inn Hotel.

Lavin boarded the southbound elevated train near Wrigley Field. He found a seat at the rear of one of the passenger cars. Dr. Bruce Naughton, a faculty member of the Northwestern University Medical School, and his companion, Alice Joseph, and defendant and his companion, Dawn Hard, occupied the same passenger car. Dr. Naughton and Ms. Joseph were standing near the doors at the rear of the car, and defendant and his companion were standing opposite Dr. Naughton and Ms. Joseph. Defendant is 5 feet 5 inches in height and weighed 150 pounds.

As the train proceeded south, defendant removed a cigarette from his belongings. He then asked another passenger for a match to light his cigarette. Lavin immediately asked defendant not to smoke on the train. Defendant ignored Lavin, lit his cigarette, and moved back to where he had been standing. Then, Dr. Naughton asked defendant to stop smoking. Defendant responded by blowing smoke in Dr. Naughton’s face. Lavin then told defendant that he was not supposed to smoke on the train, and he asked defendant to stop smoking. Defendant continued to smoke and Lavin asked him again to stop smoking.

Lavin then took the cigarette from defendant’s mouth, extinguished it, and attempted to return it to defendant. Defendant responded by removing a knife from his back pocket and stabbing Lavin in the abdomen.

After the victim was stabbed, Ms. Hard attempted to kick the victim in the groin. Ms. Joseph blocked the kick with her hand and said, “It’s not worth it.” Ms. Hard then threatened Ms. Joseph and attempted to hit her. Ms. Joseph was able to block the blows with her arm and another couple attempted to restrain Ms. Hard. At this point, the train stopped at the Clark and Division Streets station. Defendant, Ms. Hard, Dr. Naughton, and Ms. Joseph all exited the train. The victim exited the train at the next stop.

After the group exited the train, Dr. Naughton chased defendant. Ms. Hard, who was still with defendant, turned toward Dr. Naughton and asked him if he wanted to fight. Dr. Naughton stepped around Ms. Hard and continued to follow defendant. Dr. Naughton then saw defendant throw the knife, which he had used to stab the victim, over a fence near the Jewel Food Store parking lot.

Meanwhile, Ms. Hard confronted Ms. Joseph. Ms. Joseph pushed Ms. Hard away and ran across the street to a police car. Ms. Joseph told the police that the man running down the street had just stabbed someone on the train. The police caught the defendant near La Salle Street. Ms. Joseph then proceeded to tell the police about the incident. Other witnesses to the stabbing also spoke to the police.

After the police apprehended defendant, they took him to the Chicago Avenue train stop, where the victim had exited the train. Lavin, who was in an ambulance, identified defendant as the man who stabbed him. The victim was then taken to Northwestern Memorial Hospital, where he underwent surgery and treatment for a punctured colon. He remained in the hospital for 13 days.

The grand jury indicted defendant for attempted murder (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4), aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). At the conclusion of the State’s case, defendant moved for a directed verdict. The court denied defendant’s motion.

After all of the evidence was presented, the parties held a conference on jury instructions. During this conference, defendant objected to the proposed instructions on attempted murder (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4), because they were not consistent with the evidence. The trial court also refused defendant’s proposed instructions on the lesser included offense of reckless conduct (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5).

The jury was instructed that defendant could be found guilty of attempted murder if he had the “intent to commit the offense of murder,” and if he “[committed] any act which constituted a substantial step toward the commission of the offense of murder.” The court also instructed the jury that “[t]he offense need not have been committed.” The court further instructed the jury that “a person commits the offense of murder when he *** intends to kill or do great bodily harm to that individual.”

The jury found defendant guilty of attempted murder (111. Rev. Stat. 1987, ch. 38, par. 8 — 4) and aggravated battery (111. Rev. Stat. 1987, ch. 38, par. 12 — 4). He was sentenced to six years in the Illinois Department of Corrections.

First, defendant maintains that his conviction for attempted murder should be reversed because the People failed to prove beyond a reasonable doubt that he intended to kill the victim.

The People maintain that defendant’s attempted murder conviction should be upheld because the State proved beyond a reasonable doubt that defendant had the requisite intent to kill and because he stabbed the victim with a deadly weapon.

The questions raised by defendant on appeal involve the sufficiency of the evidence and questions of witness credibility. The United States Supreme Court has ruled that the scope of review of a trial court’s findings of fact is limited to an inquiry of “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Schorle (1990), 206 Ill. App. 3d 748, 759.

Furthermore, “all evidence is to be considered in the light most favorable to the prosecution upon judicial review.” Schorle, 206 Ill. App. 3d at 759; Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

We have also ruled that “it is entirely within the province of the fact finder to determine the credibility of witnesses, the amount of weight to accord their testimony, and the appropriate inferences to be drawn therefrom.” (People v. Schorle (1990), 206 Ill. App. 3d 748, 758.) A court of review may not reverse a guilty verdict unless it is “inconclusive, improbable, unconvincing, or contrary to human experience.” Schorle, 206 Ill. App. 3d at 758.

A defendant must be shown to have possessed the criminal intent to kill in order to be found guilty of attempted murder. (People v. Harris (1978), 72 Ill. 2d 16, 27.) However, under certain circumstances, a finder of fact may presume that a defendant had the requisite intent to kill. (People v. Koshiol (1970), 45 Ill. 2d 573, 579; People v. Coolidge (1963), 26 Ill. 2d 533, 537.) “[E]very sane man is presumed to intend all [of] the natural and probable consequences flowing from his own deliberate act, *** if one wilfully does an act the direct and natural tendency of which is to destroy another’s life, the natural and irresistible conclusion *** is that the destruction of such other person’s life was intended.” (Emphasis added.) (Coolidge, 26 Ill. 2d at 537.) Furthermore, a defendant’s specific intent may be inferred from the nature of the assault and the circumstances surrounding the act. Koshiol, 45 Ill. 2d at 579.

We affirm the trial court’s determination. After considering the evidence in the light most favorable to the prosecution, we believe that the fact finder could have found the essential elements of attempted murder beyond a reasonable doubt. See Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Schorle (1990), 206 Ill. App. 3d 748, 758.

The nature of defendant’s act and the surrounding circumstances provide sufficient evidence of defendant’s intent and guilt. Defendant is presumed to intend all of the natural and probable consequences of stabbing the victim, the natural tendency of which was to shorten the victim’s life. In addition, defendant did not act under circumstances which presented a serious apparent danger to his well being. The record shows that defendant stabbed the victim in response to relatively minor provocation: The victim merely extinguished defendant’s cigarette and handed the extinguished cigarette back to the defendant. The victim did not threaten defendant. After considering the circumstances which surrounded this incident, and the nature of defendant’s act, we find that the jury’s verdict was not inconclusive, improbable, unconvincing, or contrary to human experience.

Accordingly, we rule that the jury could have found beyond a reasonable doubt that defendant was guilty of attempted murder.

Next, defendant contends that the trial court erred when it refused to instruct the jury on the lesser offense of reckless conduct (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a)), thereby depriving defendant of his theory of the case. Defendant claims that his conduct was reckless, and not intentional, because he was so afraid of the victim, who was a larger man, that he overreacted to the victim’s removal of the cigarette from his mouth by stabbing the victim.

The People maintain that the trial court properly refused to instruct the jury on the lesser included offense of reckless conduct where the instruction had no basis in the evidence.

The Criminal Code of 1961 defines “reckless conduct” in the following manner:

“§12 — 5. Reckless Conduct, (a) A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a).

The offense of reckless conduct may be a lesser included offense of aggravated battery. (People v. Perry (1974), 19 Ill. App. 3d 254, 257.) A defendant is entitled to an instruction consistent with the theory of his case if there is evidence to support that theory. (People v. Garcia (1988), 169 Ill. App. 3d 618, 620; Perry, 19 Ill. App. 3d at 257-58.) When ascertaining whether or not a defendant’s actions were reckless or intentional, courts look to the manner in which the defendant used the weapon and the severity of the victim’s injuries. People v. Foster (1987), 119 Ill. 2d 69, 88.

We find that the trial court properly refused to instruct the jury on the crime of reckless conduct (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5), because the record shows that defendant’s action was intentional and not reckless. Therefore, there is no evidence consistent with defendant’s theory of the case. Moreover, defendant’s proximity to the victim, coupled with the manner in which he used the knife and the seriousness of the victim’s injury, proves that defendant acted intentionally. Therefore, we rule that the instruction was properly denied.

Third, defendant alleges that his conviction for attempted murder must be reversed because the jury was incorrectly instructed that defendant could be found guilty of attempted murder if he merely intended to inflict great bodily harm upon the victim.

The People maintain that defendant’s attempted murder conviction should be upheld because defendant has waived appellate review of this issue by failing to properly object to the instructions at trial or to raise the issue in his post-trial motion. Furthermore, the People maintain that any error that the trial court may have committed constituted harmless error in light of the overwhelming evidence of defendant's guilt.

It is well settled that the specific intent to kill is an essential element of attempted murder. (People v. Harris (1978), 72 Ill. 2d 16.) However, a party must specifically object to improper jury instructions with respect to this element in a timely manner. “[T]he failure to object at trial to an asserted error in jury instructions waives the question.” (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180.) Objections at trial on specific grounds waive all other grounds for objection. People v. Jones (1975), 60 Ill. 2d 300, 307.

Similarly, “issues not raised in a post-trial motion are effectively waived for appellate review.” (Tannenbaum, 82 Ill. 2d at 181.) A limited exception to this rule is available to correct a grave instructional error, or where the facts are close and fundamental fairness mandates that the jury be properly instructed. 134 ILl. 2d R. 451(c); Tannenbaum, 82 Ill. 2d at 182.

Under certain circumstances, an erroneous jury instruction constitutes harmless error. An error is harmless and does not warrant reversal where evidence of the defendant’s guilt is overwhelming and where the defendant would not be legally entitled to prevail even if the error had not been committed. (Black’s Law Dictionary 487 (5th ed. 1979).) “[A]n erroneous intent instruction does not warrant reversal where intent to kill is evident from the circumstances.” People v. Bryant (1984), 123 Ill. App. 3d 266, 274.

Defendant finds fault with the inclusion of the phrase “or do great bodily harm” within the definition of murder given to the jury. However, we find that defendant waived his right to object to this phrase within the definition of murder given to the jury. At trial, defendant objected to the instruction on the ground that the instruction was not consistent with the evidence, not on the ground of the language of the instruction.

In addition, defendant failed to properly raise the issue of the improper instruction in his post-trial motion. While a limited exception to the waiver rule does exist, it should be used only to correct grave errors, or where the facts of the case are so close that fundamental fairness mandates that the jury be properly instructed. This exception does not apply to the case at bar. In the instant case, the evidence is not factually close. The record clearly establishes that defendant stabbed the victim with a knife without warning. Furthermore, the error is not sufficiently grave as to warrant another trial. Since defendant failed to object to the instruction on the ground of its language, and defendant failed to raise the issue in his post-trial motion, he has waived his right to review of the jury instruction on appeal.

In addition, we find that the court’s inclusion of the subject language in the jury instruction constituted harmless error. The court’s error was harmless because defendant, in light of the overwhelming evidence against him, would not have been entitled to prevail even if the jury had been properly instructed.

Accordingly, we rule that defendant’s attempted murder conviction should be upheld since he waived appellate review of the issue of jury instructions because he failed to properly object to the instructions at trial and to raise the issue in his post-trial motion. Furthermore, we find that any error that the trial court committed constitutes harmless error in light of the overwhelming evidence of defendant’s guilt.

Finally, defendant alleges that the verdicts finding him guilty of both attempted murder and aggravated battery are legally inconsistent and, therefore, a new trial on both charges is required. Defendant asserts that the verdicts are legally inconsistent because he could not have intended both to kill and to do great bodily harm to the victim.

The People maintain that defendant is not entitled to a new trial because the verdicts finding defendant guilty of both attempted murder and aggravated battery are not legally inconsistent and that legal consistency is not required.

“Inconsistent verdicts occur when a verdict on one count is premised on the existence of an element of the offense and a verdict on another count is premised on the nonexistence of the same element.” (People v. Ortiz (1987), 156 Ill. App. 3d 170, 176.) Moreover, it is permissible for juries to return inconsistent verdicts in criminal cases. People v. Dawson (1975), 60 Ill. 2d 278, 280-81, citing United States v. Carbone (2d Cir. 1967), 378 F.2d 420, 422-23.

We find that the verdicts in the instant case are not legally inconsistent because the requisite mental states for attempted murder and aggravated battery are not mutually exclusive. The intent element required to support a verdict of aggravated battery is that the act be committed intentionally or knowingly (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4), while the intent element required to support a verdiet of attempted murder is that the act be committed with the intent to kill (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4). It is not inconsistent for a jury to find that defendant inflicted a wound intentionally and knowingly while also intending to kill. Defendant’s argument that he could not have intended both to kill and to do great bodily harm to the victim is erroneous. This argument is based upon the invalid presumption that death is not a form of bodily harm and that one may intend to kill another without intending to inflict bodily harm. Moreover, even if defendant’s attempted murder conviction was legally inconsistent with his conviction for aggravated battery, this inconsistency would not require the reversal of defendant’s conviction.

Finally, we find that defendant’s reliance upon People v. Coleman (1985), 131 Ill. App. 3d 76, is misplaced. In Coleman, the court held that reversal was appropriate because the verdicts of guilty of attempted murder and reckless conduct were inconsistent. (Coleman, 131 Ill. App. 3d at 80.) We find that Coleman is distinguishable from the case at bar. While the verdicts in Coleman were inconsistent, we noted above that the verdicts in the instant case are not inconsistent because the requisite mental states are neither inconsistent nor mutually exclusive.

For the aforementioned reasons, we affirm the decision of the trial court. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    JOHN PONZIANO, Plaintiff-Appellant, v. K.R. KLEINER AND COMPANY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 90—1873
    Opinion filed June 14,1991.
    Harvey L. Walner & Associates, Ltd., of Chicago (Lawrence Schlam, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James Ferrini, Robert L. Reifenberg, and Susan Condon, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff appeals from the trial court’s order granting summary-judgment for defendant as to plaintiff’s amended complaint, which alleged that defendant violated section 61 of the Illinois Structural Work Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 60). The sole issue for our review is whether plaintiff’s injury resulted from a violation of the Act.

Plaintiff, John Ponziano, brought this action against defendant, K.R. Kleiner, to recover for injuries sustained on October 24, 1985, while working as a laborer on renovation of the St. Regis Hotel in Chicago, Illinois. Defendant, the general contractor, subsequently filed a third-party action against Jensen Building Repairs, Inc., plaintiff’s employer. The third-party action is not an issue in this appeal.

At the time of the accident, plaintiff had worked on the site for about one week and his tasks until that time included making mortar for bricklayers, picking up debris and erecting scaffolds. On October 24, 1985, plaintiff’s supervisor, Steven Fetzer, an agent of Jensen, assigned plaintiff the job of preparing openings for lintels, which are I-beams that fit above doorways and windows. The job required plaintiff to measure lintels, widen existing spaces, and remove bricks.

On the morning of the accident, plaintiff prepared lintel spaces on the first and second floors, using a tubular scaffold to reach the openings, which were seven to eight feet above the floor. After lunch, plaintiff was instructed to prepare lintel spaces on the third floor. When plaintiff returned to the site and discovered that his scaffold was gone, he was told by Fetzer to find another scaffold. Plaintiff was unable to find an available scaffold, and he “took it upon [himself] to find someway, hopefully safely, to just go ahead and do what they told [him] to do and start on that opening of that hole.” Plaintiff did not inform Fetzer that all scaffolds were being used because he “did not want to bother them.” Plaintiff instead decided to stand upon the ledge, while he used a hammer and chisel to remove bricks from the wall. After working for about 10 minutes and removing 15 to 20 bricks, a two- or three-foot piece of steel beam fell from the opening. At his deposition, plaintiff stated: “I pulled out the next brick. The next thing I knew, I saw something fly by my head, bounce off my foot, which was on a ledge ***. By pulling out those bricks, I uncovered what somebody else left there.” The beam fell on plaintiff’s right foot, causing severe injury.

Plaintiff’s complaint alleged that his injuries were proximately caused by defendant’s violation of the Act, namely, defendant’s failure “to erect, construct, place or operate certain scaffolds, platforms, supports, ladders and other mechanical contrivances so as to give proper and adequate protection to life and limb of the plaintiff from falling materials that may be used thereon.” Defendant moved for summary judgment, denying that the Act applied and alleging that no material issue of fact existed. The trial court granted summary judgment for defendant and thereafter denied plaintiff’s motion to reconsider and vacate the order.

On appeal, plaintiff contends that the trial court erred in granting summary judgment for defendant because defendant violated the Act by failing to provide needed scaffolding. Alternatively, plaintiff maintains that the Act applies because the ledge on which he stood was a scaffold under the Act. Both arguments lack merit because the record reveals that no alleged violation of the Act caused plaintiff’s injuries.

Although the Structural Work Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in their employment, it is not intended to cover all injuries that occur on or near a construction site. (Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 487 N.E.2d 1124.) Section 1 of the Act provides, in relevant part:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances *** shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1985, ch. 48, par. 60.)

Thus, the Act protects workers who work on supports above ground level and persons who might be injured from materials falling from such heights. However, the Act does not apply unless the violation of the Act caused the injury. (Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 487 N.E.2d 1124.) Moreover, whether a plaintiff’s injury is directly related to the specific risks protected by the Act is initially to be determined by the trial court. Overbeck v. Jon Construction, Inc. (1989), 184 Ill. App. 3d 918, 540 N.E.2d 969.

We conclude that plaintiff’s injury was not caused by a violation of the Act. We find the holding in Overbeck v. Jon Construction, Inc., to be dispositive of the issue. In that case, plaintiff, an electrician, was injured when an explosion knocked him off a ladder. Plaintiff did not claim that the ladder was defective, but rather that the placement of the ladder prevented him from quickly reaching the electrical wire which caused the explosion. This court rejected the argument, finding that “[t]he placement of a ladder makes it defective only when [it] creates one of the hazards protected by the Act.” (Overbeck, 184 Ill. App. 3d at 923, 540 N.E.2d at 972.) Because the ladder properly supported plaintiff, it did not cause his injury.

The holding in Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, also supports our conclusion. In that case, plaintiff alleged that his fall resulted from an improperly placed ladder. Our supreme court stated:

“The obvious hazards of a scaffold or ladder are that workmen or materials may fall off such devices or that the devices themselves may fall. *** It is only when an injury has some connection with the hazardous nature of one of the devices named in section 1 of the Act that a cause of action may be maintained under that section ***.” (Tenenbaum, 60 Ill. 2d at 371, 325 N.E.2d at 612-13.)

The court therefore concluded that the Act did not apply because plaintiff did not fall from the ladder, nor did the ladder itself fall.

Plaintiff’s amended complaint and deposition reveal that plaintiff’s injury was not caused by a hazard protected in the Act and had no connection with a device named in the Act. Plaintiff did not fall from the ledge, nor did the ledge fail to support him. Moreover, the steel beam did not fall on plaintiff from the ledge and had not been used on the ledge itself. (Cf. Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889.) Rather, the steel beam fell from the building. The facts simply reveal no defect or hazard with the ledge upon which plaintiff stood while he worked. Moreover, plaintiff admitted that he caused the injury. Indeed, he testified at his deposition, “By pulling out those bricks, I uncovered what somebody else left there.” (Emphasis added.) Because the Act applies only when a defective or absent device causes plaintiff’s injury, we conclude that the Act does not apply here. We recognize that contributory negligence and assumption of risk are not affirmative defenses under the Act (Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 507 N.E.2d 930), and we do not treat them as such. Plaintiff’s conduct per se does not preclude his recovery, but rather shows that neither support devices nor their absence caused his injury.

Plaintiff nevertheless argues that a triable issue of fact existed as to whether defendant violated the Act by failing to provide a scaffold for plaintiff’s use. However, even if defendant failed to provide a scaffold in violation of the Act, plaintiff’s argument fails because, as noted above, such violation did not cause plaintiff’s injury.

This court considered an analogous situation in Gannon v. Commonwealth Edison Co. (1989), 182 Ill. App. 3d 228, 537 N.E.2d 994. In Gannon, plaintiff, a pipefitter, slipped on a concrete floor while moving channel beams. Before he fell, plaintiff noticed some oil or water on the floor. Plaintiff argued that defendant’s failure to provide a crane for the unloading of the beams violated the Act. This court disagreed, finding that a slick on the floor, not the absence of a support device, caused plaintiff’s injury.

We similarly conclude that plaintiff here failed to show that the absence of a support in any way related to plaintiff’s injury. Even with a proper scaffold, which plaintiff claims would have been wider than the ledge, the record does not indicate that plaintiff could have avoided the falling debris. Plaintiff’s testimony suggests that the steel beam fell immediately upon removing the brick and does not indicate that plaintiff had time to react to avoid injury.

Plaintiff’s claim that the ledge was a support within the meaning of the Act also lacks merit because even assuming that the ledge was a “support,” plaintiff’s injury was unrelated to the ledge itself. As previously noted, the ledge did not fail to support plaintiff, nor did the steel beam fall from the ledge. We find Quinlin v. Northwestern Steel & Wire Co. instructive on this issue. In Quinlin, a worker was injured while working on a roof when a piece of sheet metal struck him. This court concluded that although the roof was a support under the Act, the roof adequately performed its function by supporting plaintiff and materials. We recognize that, under Quinlin, a brick ledge, temporarily used as a scaffold, may be a device under the Act. However, the record here does not indicate that the ledge failed to adequately function as a temporary support. Nor does the record support plaintiff’s argument that the injury could have been avoided if he used a proper scaffold. Simply stated, the ledge did not create a hazard protected by the Act.

Although we will liberally construe the Structural Work Act (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223), we decline to broaden its scope with the expansive interpretation suggested by plaintiff. Under these circumstances, the Act does not apply as a matter of law and the trial court properly granted the motion for summary judgment.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE WHITE

text:
    JAMES M. O’LOUGHLIN, Plaintiff-Appellant, v. SERVICEMASTER COMPANY LIMITED PARTNERSHIP et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 89—3203
    Opinion filed June 19,1991.
    Grubman & Nathan, P.C., of Chicago (James A. Payonk, Jr., of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Carlton D. Fisher, and Bruce L. Carmen, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff was a painter employed by a school district. Defendants were management services contractors, hired by the district to manage the department in which plaintiff was employed. In the circuit court of Cook County, plaintiff filed suit against defendants after falling from a scaffold. The circuit court dismissed the suit on the ground that defendants were a borrowing employer of plaintiff and that his complaint was barred. Plaintiff appealed, and we now reverse and remand.

FACTS

Plaintiff, James M. O’Loughlin, was a summer employee of East Maine School District 63 (the school), of Des Plaines, Illinois. His job was to paint the exteriors of the school’s buildings. On August 5, 1988, a scaffold on which he was working fell to the ground from a height of two stories, causing him injury.

Defendants are the ServiceMaster Company Limited Partnership, which is a Delaware limited partnership, and ServiceMaster Management Corporation, which is a Delaware corporation and is the limited partnership’s general partner. On March 24, 1987, by the general partner, the limited partnership had entered into a contract with the school for management of the school’s support services.

The contract collectively referred to the limited partnership and the general partner as “ServiceMaster.” It called for ServiceMaster to provide administration and technical direction in the management of the school’s custodial and maintenance departments. Under the contract, defendants would furnish and pay their own management employees. As for the school’s employees, the contract provided as follows:

“1. SERVICES: ***
* * *
b. SCHOOL Personnel: It is expressly understood that all presently employed employees of the SCHOOL in the departments managed by SERVICEMASTER ***, who will be trained, managed and directed by SERVICEMASTER under the provisions of this Agreement, shall remain employees of the SCHOOL, and shall not at any time during the term of this Agreement be deemed to be employees of SERVICEMASTER. * * *
(1) SERVICEMASTER shall not be regarded as a party to any collective bargaining agreement or agreements which have heretofore or may hereafter be entered into by the SCHOOL. SERVICEMASTER shall not participate in any decisions as to wages, horn’s or other working conditions for employees of the SCHOOL.
(2) The SCHOOL shall hire, discharge or discipline all such employees in accordance with SCHOOL policy and procedures. The SCHOOL shall pay all wages and salaries of its support service employees, and shall pay all payroll and other taxes, fees, worker’s compensation insurance and other charges or insurance levied or required by any federal, state, or local statutes relating to the employment of its employees. Certificates of insurance as evidence of proper employee insurance coverage shall be supplied to SERVICEMASTER upon request.
c. SERVICEMASTER Services: SERVICEMASTER shall train, manage and direct all support service employees of the SCHOOL in the performance of their respective duties, subject always to the control retained by the SCHOOL as employer of said employees.
d. Administrative Responsibilities: As an accommodation and acting solely as agent for the SCHOOL, SERVICEMASTER will perform all administrative duties relating to the SCHOOL’S support service employees, including maintaining time records for these employees and furnishing to the SCHOOL data from which the SCHOOL can formulate its regular payroll.
* * *
4. INDEMNIFICATION: *** It is specifically understood that SERVICEMASTER is responsible for training, scheduling and supervision of the SCHOOL’S support service employees and that SCHOOL retains ultimate control for hiring, disciplining and termination of SCHOOL employees.
* * *
6. COVENANT: SERVICEMASTER and SCHOOL agree that at no time during the term of this Agreement or for a period of one (1) year immediately following the termination of this Agreement will it call upon any employees of the other for the purpose of employing, hiring or otherwise interfering with the contractual relationships of such employees without the prior written approval of the other party ***.
* * *
12. GENERAL CONDITIONS:
a. Independent Contractor: Except for the specific duties and responsibilities described in paragraph 1 above, in which SERVICEMASTER is acting as SCHOOL’S agent, SERVICE-MASTER agrees that in all other respects its relationship to the SCHOOL will be that of an independent contractor ***.”

Joseph G. Buri, who was defendants’ director of operations for the school, testified on deposition as follows:

“Q. Have you ever hired any of the members of the operations staff for District 63?
A. Yes.
Q. How many?
A. A few. Three, four.
* * *
Q. Did you have to have the permission of someone at the school district or the board in order to hire these people?
A. The board is ultimately in control of all hiring and firing.
Q. Who gave you permission to interview these people for the positions?
A. (No response.)
Q. If anyone?
A. That is my role at the school district, given to me by the superintendent.
* * *
Q. After you interview someone you then submit your recommendations to the board, is that how it works?
A. To the associate superintendent.
Q. Then what happens?
A. They are hired.
Q. Does the board have to give the okay or just the associate superintendent?
A. The board, as I said before, must hire and fire all personnel in the school district. That is by state law.
Q. So that the person that you interview is not hired until the board has somehow put their official stamp on it?
A. Absolutely.
Q. And if you had interviewed someone and recommended they be hired and the board didn’t want them hired, they just wouldn’t be hired, despite your recommendation?
A. Well, I think the board values my recommendation and, therefore, that has never occurred.
Anyone I recommended to be reprimanded or hired, fired, whatever the situation may be, it has gone in just that fashion.”

Regarding his authority to discharge members of the school’s operations staff, Buri testified as follows:

“Q. *** [I]n working pursuant to this contract with East Maine School District 63, do you have authority to fire any members of the operations staff?
* * *
A. Yes, I do. Subject to board approval.
* * *
Q. Has anyone ever been — has any member of the operations staff ever been terminated pursuant to your recommendation?
A. No.
Q. Have you ever recommended that anyone be terminated?
A. No.”

Plaintiff was hired and paid by the school. Defendants never paid plaintiff. Plaintiff had worked for the school the previous summer and, for the summer in question, was solicited by the school for employment through a letter on the school’s letterhead, signed by or on behalf of an administrative employee of the school. Plaintiff was also notified through a similar letter that he had been hired by the school.

All of plaintiff’s work was performed on the school’s premises. The tools and equipment used were owned by the school. While working, plaintiff wore a uniform bearing the school’s name. Plaintiff was instructed by the school to conduct himself as a representative of the school while working. Plaintiff reported each day to an employee of the school.

Though Buri evaluated some summer employees’ work, he never evaluated plaintiff’s, because he did not have enough contact with plaintiff for a credible evaluation. Rather, an employee of the school evaluated plaintiff’s work. An employee of the school approved plaintiff’s time-sheet entries; that approval was then approved by Buri. The time sheet bore the school’s name.

Though defendants had a policy and documentation procedure for reporting their own employees’ on-the-job injuries, the policy and procedure were not implemented when plaintiff was injured. Plaintiff’s counsel advise us in their brief that they represent plaintiff in a workers’ compensation matter pending against the school before the Industrial Commission and that, as of the date when the brief was filed, defendants had not filed an appearance in that matter as plaintiff’s employer.

On account of his injuries, plaintiff filed a complaint at law against defendants on October 17, 1988. Count I alleged violations of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60). Count II alleged negligence.

The complaint charged that defendants had the duty of training employees of the school in the care and maintenance of the school’s buildings. The complaint also charged that defendants were managing, supervising, directing, and controlling the operations involved in care and maintenance of the school’s buildings, including the manner, scope, and timing of the painting work that plaintiff was performing; that defendants prescribed and enforced various safety rules; and that defendants had authority to stop the work and were otherwise in charge of the work in progress.

Pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)), defendants moved on December 23, 1988, for dismissal of plaintiff’s complaint and for entry of a final and appealable order.

The motion alleged that it was clear as a matter of law from the pleadings and the contract that, as contemplated by section 1(a)(4) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(a)(4)), defendants were plaintiff’s borrowing employer and the school was his loaning employer: “In other words, [the school] furnished [plaintiff] to the Defendants to perform painting jobs prior to and on August 5, 1988, and he was subject to the Defendants’ direction and control during this time.” The motion further alleged that, under section 5(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)), plaintiff’s sole remedy against defendants for his injuries was a claim under the Act, not a suit at law.

In response, plaintiff argued that the contract between the school and defendants demonstrated that plaintiff was the school’s employee; that plaintiff was not wholly under defendants’ rather than the school’s control; that defendants had no power to discharge plaintiff; that defendants were attempting to characterize plaintiff as a permanently borrowed employee, which would be self-contradictory and legally untenable; that plaintiff never acquiesced or consented to defendants’ becoming his employer; that the benefit of plaintiff’s work accrued solely to the school and not to defendants; that all his work was done on the school’s premises; and that defendants had filed no appearance in connection with plaintiff’s workers’ compensation claim. Plaintiff also pointed to other facts that tended to disprove defendants’ allegation that he was their borrowed employee.

In reply, defendants asserted that their contract with the school did not exclude the possibility of plaintiff’s being lent to them, even though he remained a general employee of the school. They asserted that plaintiff was wholly under their direction and control; that the length of a borrowed-employment relationship is insignificant; and that, in any case, because plaintiff was only a summer employee and because defendants’ contract with the school had a finite term, their claim of borrowed employment could not be characterized as a claim of permanent borrowing.

Defendants added that ultimate hiring-and-discharge power pertains only to the general-employment relationship, but the practical power to discharge plaintiff rested with defendants in the context of a borrowed-employment relationship with him. According to defendants, plaintiff impliedly acquiesced to borrowed employment because, since he was in his second summer of employment, he “must have known the employment conditions” and understood who controlled his work. Defendants also asserted that the benefit of plaintiff’s work was jointly received by themselves and the school, because the work allowed them to perform under the contract, and even minimal benefit is enough to support a borrowed-employment relationship. In defendants’ view, it was irrelevant that they had failed (assertedly because of plaintiff’s failure to serve them with process) to appear in the workers’ compensation case. Their response concluded that plaintiff’s status resembled that of a joint employee, except that he was hired and paid only by the school and was allegedly under the direction and control only of defendants.

At oral argument on their section 2 — 619 motion, defendants contended flatly that plaintiff was the joint employee of themselves and the school. They had never before argued joint rather than borrowed employment.

In reliance on Evans v. Abbott Products, Inc. (1986), 150 Ill. App. 3d 845, 502 N.E.2d 341, the court granted defendants’ motion and dismissed plaintiff’s complaint. This appeal by plaintiff followed.

ANALYSIS

Plaintiff contends that he was an employee of East Maine School District 63 and not a borrowed employee, and that the court therefore erred substantively in granting defendants’ dismissal motion.

Section 1(a)(4) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, eh. 48, par. 138.1(a)(4)) recognizes the concept of “loaning” and “borrowing” employers. (See A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 347-48, 412 N.E.2d 477, 480.) The section provides that, for workers’ compensation benefits on account of injuries to a borrowed employee, a covered borrowing employer subject to the Act is jointly and severally liable with a covered loaning employer. In addition, the section specifically provides that employers in the business of furnishing employees to other covered employers and of paying the employees for their services to the other employers are to be deemed loaning employers.

If covered by the Act, both borrowing employer and loaning employer share the immunity conferred by section 5(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)) from any damage action, except an Industrial Commission claim, for work-related injuries to an employee. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 388, 385 N.E.2d 664, 668.

Illinois courts have identified several factors as bearing on whether a borrowed-employment relationship exists. The factors include the extent of an allegedly borrowing employer’s control over a plaintiff (M & M Electric Co. v. Industrial Comm’n (1974), 57 Ill. 2d 113, 116-17, 119, 311 N.E.2d 161, 163, 164; Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 233-34, 360 N.E.2d 1245, 1247-48); whether the allegedly borrowing employer had power to discharge a plaintiff (M & M Electric Co., 57 Ill. 2d at 119, 311 N.E.2d at 164; Emma v. Norris (1970), 130 Ill. App. 2d 653, 657, 264 N.E.2d 573, 577); whether a plaintiff consented or acquiesced to the alleged loan of services (M & M Electric Co., 57 Ill. 2d at 119, 311 N.E.2d at 164; Nutt v. Pierce Waste Oil Service, Inc. (1983), 112 Ill. App. 3d 612, 616, 445 N.E.2d 928, 931; Emma, 130 Ill. App. 2d at 657, 659, 264 N.E.2d at 577, 579); the terms of any written contract between the two alleged employers, though the contract is not conclusive (Emma, 130 Ill. App. 2d at 657, 659, 264 N.E.2d at 577, 578); the length of service for the allegedly borrowing employer (Nutt, 112 Ill. App. 3d at 616, 445 N.E.2d at 931; Freeman, 46 Ill. App. 3d at 234, 360 N.E.2d at 1248); the identity of the party for whom the employee’s services are being performed (Freeman, 46 Ill. App. 3d at 234, 360 N.E.2d at 1248); and manner of hiring (Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 719, 394 N.E.2d 1230, 1237). It is also said that a change in the nature of one’s work, from the first employer’s usual work to some special or different work for the second employer, will indicate borrowed employment. Mosley, 76 Ill. App. 3d at 720, 394 N.E.2d at 1238.

Courts in other States have used four principal criteria for determining the existence of a borrowed-employment relationship: (1) which employer controls the employee’s activities, (2) which employer’s business is benefiting, (3) which employer is paying, and (4) which employer has the power to hire or discharge the employee. See Casenote, Workmen’s Compensation — The Rights of the Lent Servant Against the General or Special Employer, 9 Ga. St. B.J. 556, 558 n.15 (1973); Note, The Borrowed Employee Doctrine in Workmen’s Compensation, 21 Drake L. Rev. 176, 183 (1971).

The Illinois case of M & M Electric Co. recognized that the primary factor in determining a borrowed-employment relationship had been expressed as the right to control the manner in which the employee’s work was to be done. (M & M, 57 Ill. 2d at 116-17, 311 N.E.2d at 163.) However, M & M did not say that the degree of control over manner of performance was the only relevant test for a borrowed-employment relationship. In fact, the M & M plaintiff “could not be considered an employee of [the allegedly borrowing employer] unless it [could] be shown that the very nature of the project gave control over him to [that employer], and that he implicitly knew of and agreed to this change of control.” (Emphasis added.) (57 Ill. 2d at 118, 311 N.E.2d at 163.) Moreover, in the M & M court’s view, the relevant power to control included the power to discharge, which the allegedly borrowing employer did not possess. 57 Ill. 2d at 119, 311 N.E.2d at 164.

Elsewhere, it has been said that, even if the control factor is deemed most important, no one criterion should be solely determinative and that in any event both the control factors and the benefit factor are inherently ambiguous. (9 Ga. St. B.J. at 556 n.3, 558 n.15 (discussing employee’s remedies against allegedly borrowing employer); see also Skogland, Borrowed Servants, 76 Comm. L.J. 307 (1971) (discussing vicarious liability for borrowed employee’s torts); Note, Borrowed Servants and the Theory of Enterprise Liability, 76 Yale L.J. 807, 811 (1967) (same).) Perhaps partly for such reasons, a leading treatise writer lists, as the threshold factor, whether the employee has expressly or implicitly agreed to borrowed employment. See 1C A. Larson, Workmen’s Compensation §§48.00, 48.11 (1990) (hereinafter Larson).

Professor Larson notes that control questions first emerged in a common law context involving employers’ disputes over who should be vicariously liable for an employee’s acts — a context in which the employee’s own understandings, rights, or liabilities were at best an afterthought. By contrast, in workers’ compensation law, resolution of the borrowed-employment question determines whether the employee retains rights to sue for negligence or is relegated to a compensation claim. (1C Larson §48.12 (1990).) Because of the seriousness of the employee’s rights at issue, says Larson, if employee agreement to a borrowed-employment relationship cannot be shown, “the investigation is closed, and there is no need to go on into tests of relative control and the like.” 1C Larson §48.11, at 8 — 440 (1990).

Illinois courts agree that the employee’s express or implied acquiescence is essential to a borrowed-employment relationship. E.g., Johnson Paving, 82 Ill. 2d at 348, 412 N.E.2d at 480-81; Trenholm v. Edwin Cooper, Inc. (1986), 152 Ill. App. 3d 6, 503 N.E.2d 1067.

The present plaintiff contends that whether he acquiesced to a borrowed-employment relationship was a disputed factual issue. If so, the circuit court’s ruling was at least partly one of fact and should be reviewed as such, as in Emma v. Norris (1970), 130 Ill. App. 2d 653, 658, 264 N.E.2d 573, 578.

Here, Buri testified that he had told members of the school’s operations staff that they were paid by the school and he was paid by defendants but his role was to supervise them. Plaintiff was hired and paid by the school through correspondence on school letterhead. All of his work was done on school premises while using school equipment and wearing a school uniform. He reported each day to a school employee and was told to conduct himself as a school representative. A school employee evaluated his work and initially approved time sheets that he had signed and that bore the school’s name. On the other hand, defendants’ employee Buri was ultimately responsible for plaintiff’s day-to-day direction and control, and Buri ultimately approved the time sheets.

In regard to acquiescence, defendants argue that, because plaintiff returned to work a second summer, there was “some evidence” that he had “implicitly acquiesced” to defendants’ directing and controlling his work. Defendants also argue that, because plaintiff did not oppose their section 2 — 619 motion by affidavit or deposition testimony, and because the only “evidence” in the record is the “inference” that he implicitly acquiesced by returning for a second summer, we must assume that plaintiff consented to defendants’ direction and control, and the circuit court correctly ruled on acquiescence as a matter of law.

We need not and shall not make the assumption desired by defendants. First, defendants themselves initially failed to support their own section 2 — 619 motion by affidavit, as they should have done when the ground on which they rely (plaintiff’s return to work for a second summer) does not appear on the face of the complaint they attack. (See Ill. Rev. Stat. 1989, ch. 11Ó, par. 2 — 619(a).) Later, defendants merely attached a copy of deposition testimony to their reply to plaintiff’s response to their motion. Second, an inference is not the same as a fact in evidence, particularly when the inference for which defendants contend is not dictated by any legal rule and when a contrary inference can be drawn as easily. It is a fact that plaintiff returned a second summer, but it is only a debatable inference that by so doing he acquiesced to defendants’ control. Third and most important, here there was so little factual evidence of plaintiff’s acquiescence that we can sustain no ruling on the section 2 — 619 motion, whether as a matter of law or of fact, that he had acquiesced to a borrowed-employment relationship.

On the control issue, defendants cite M & M Electric Co. Yet, M & M might be authority for finding borrowed employment here only if plaintiff could be shown to have acquiesced to the loan and if “the very nature of the project” gave control over him to defendants. (M & M, 57 Ill. 2d at 118, 311 N.E.2d at 163.) The M & M plaintiff had been sent by his electrical company employer to complete an electrical installation at a steel mill clearly belonging to another company. Yet, because the steel company could not control the manner of his work, it had not become his borrowing employer. Here, the “very nature” of plaintiff’s work as a painter of his school employer’s own buildings did not give control over him to defendants; only the management contract (to which he was not a party) did that. Even then, defendants did not hire him and have not shown that they had the power to discharge him. Therefore, M&Mdoes not aid defendants.

Defendants assert that, though the school retained formal power to hire and discharge plaintiff, defendants had effective, de facto power to do so. Yet the most that defendants’ employee Buri claimed was a power to discharge that was subject to approval of the school’s board; in other words, according to him, he had authority to recommend to the board that plaintiff be discharged. He had never tested his “effective” power by recommending that anyone be terminated. He also acknowledged that he had not hired plaintiff but that the school had done so.

Defendants’ brief seeks to redirect the inquiry from whether a borrowed-employment relationship existed to whether a relationship of joint or of dual employment existed. (Cf. American Stevedores Co. v. Industrial Comm’n (1951), 408 Ill. 445, 447, 97 N.E.2d 329, 330 (shared control and benefit equate with joint employment); 1C Larson §48.41 (1990) (joint and dual employment distinguished).) Accordingly, for example, defendants minimize the importance of plaintiff’s argument that he was not wholly under defendants’ control. That argument, say defendants, is relevant only to an issue of borrowed employment and is less important than the right to exert some control.

Despite defendants’ efforts to recharacterize their relationship with plaintiff as that of a joint rather than a borrowing employer, they advanced no such position until oral argument before the trial court, when plaintiff objected to their shift of position. At oral argument before us, defendants likewise receded from their borrowed-employment theory, yet did not press a joint-employment theory but merely characterized plaintiff’s employment relationship with themselves as “unique.”

Regardless of defendants’ shifting ground, the trial court based its decision largely on a borrowed-employment case, Evans v. Abbott Products, Inc. (1986), 150 Ill. App. 3d 845, 502 N.E.2d 341. The Evans plaintiff, an employee of a temporary help agency, had been assigned to work elsewhere for an agency client. The client became his borrowing employer because he had implicitly acquiesced to the known relationship and because the borrowing employer could dismiss the plaintiff from the job he was performing for it. By now abandoning any theory of borrowed employment, defendants abandon the very Evans rationale that undergirded the decision for which they contend.

Defendants do cite Dildine v. Hunt Transportation, Inc. (1990), 196 Ill. App. 3d 392, 553 N.E.2d 801. However, Dildine was a case of joint employment. Dildine is readily distinguishable from the present cause on its facts. Here, there was no common ownership of employing entities as in Dildine; rather, defendants, as independent contractors, had merely entered into a management contract with the school. Rather than paying plaintiff benefits under a workers’ compensation policy naming the school as additional insured, defendants contractually disclaimed any responsibility for workers’ compensation coverage of plaintiff and are paying plaintiff no benefits. The accident site was owned by the school, not by defendants. The only service performed by plaintiff was for the school, not for defendants, who merely supervised those services and got paid for doing so. Not only is it disputed whether defendants could discharge plaintiff, but the weight of the evidence is that they could not. Therefore, Dildine not only fails to support the theory of borrowed employment on which the trial court’s decision was based, it also fails to support recharacterizing defendants as plaintiff’s joint employer.

As defendants point out, it is generally true that a trial court judgment, regardless of its articulated basis, may be sustained on any basis warranted by the record. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.) Accordingly, even if defendants were not a borrowing employer, we might affirm the trial court’s judgment if defendants were a joint employer. However, neither by citing Dildine nor in any other way have defendants established that they were plaintiff’s joint employer.

Defendants did not prove that plaintiff partly was working for them rather than only for the school. They also did not prove that plaintiff had a contract with them. See 1C Larson §48.41, at 8 — 553 (1990); compare Freeman, 46 Ill. App. 3d 230, 360 N.E.2d 1245 (where employee worked in quasi-joint employer’s own laundry room, employee’s contract with latter employer implied; both employers shared control and benefit of employee’s work), with Nutt, 112 Ill. App. 3d 612, 445 N.E.2d 928 (where work premises, tools, payroll, act of hiring, and power to discharge were original employer’s, no joint employment by affiliated company whose vehicle plaintiff repaired, even though affiliate shared in benefit; collecting joint-employment cases).

The case of Emma v. Norris (1970), 130 Ill. App. 2d 653, 264 N.E.2d 573, also weakens defendants’ argument. In Emma, summary judgment for the defendants was reversed because a factual issue existed as to whether a hired management company had become the plaintiff’s borrowing employer. The Emma court did not actually have to decide the borrowed-employment issue; however, the court emphasized (1) that the management company’s contract did not expressly give it authority to hire or discharge and (2) that, “more importantly],” a consensual relationship was required between the management company and the allegedly borrowed employee. 130 Ill. App. 2d at 657, 264 N.E.2d at 577.

In Emma, questions of consent and of authority were too murky for summary judgment and needed to go before a jury. (130 Ill. App. 2d at 658, 264 N.E.2d at 578.) Likewise, in the present cause the evidence was too conflicting for such questions to be decided as a matter of law, if that is the basis on which the circuit court decided them. Besides, to the extent that the court relied on Evans v. Abbott Products, Inc., for its decision, it relied on a case involving wholly different facts. Therefore, defendants err in arguing that as a matter of law they were plaintiff’s employer.

In addition, if the circuit court decided the questions of authority and consent as issues of fact rather than law, its decision was against the manifest weight of the evidence. Defendants can point to no fact, other than plaintiff’s return a second summer, that might support his acquiescence to a borrowed-employment relationship; but, if plaintiff had no reason to know of the alleged relationship during the first summer, he had no more reason to know of it the next summer. Defendants can point to neither a clear grant nor any exercise of independent authority on their part to hire or discharge an employee such as plaintiff, whereas plaintiff had every reason to consider himself an employee of the school and not of defendants.

Accordingly, we hold that it was error to grant defendants’ motion to dismiss. The judgment of the circuit court of Cook County is reversed, and this cause is remanded to that court for further proceedings.

Reversed and remanded.

CERDA, P.J., and RIZZI, J., concur.

       At oral argument in this court, defendants also asserted that they benefited from plaintiff’s work because, if he were efficient and they could thereby keep payroll costs relatively low, they would derive greater revenue. Under the contract, their basic monthly payment was to be reduced by the amount of the school’s monthly payroll costs.

       Defendants cite Clark v. Industrial Comm’n (1973), 54 Ill. 2d 311, 297 N.E.2d 154, as stating the factors for determining a borrowed-employment relationship. However, the Clark factors were enunciated for purposes of determining whether an individual was an employee or an independent contractor, not for determining whether the individual was a borrowed employee.