author: JUSTICE LINN

text:
    TRANS LEASING INTERNATIONAL, Plaintiff and Counterdefendant-Appellant, v. ANDREW J. SCHMER et al., Defendants and Counterplaintiffs and Third-Party Plaintiffs-Appellees (Myo-Tech, Inc., Third-Party Defendant).
    First District (4th Division)
    No. 1—88—3201
    Opinion filed January 18, 1990.

      Sparacio & Allen, of Chicago (Stephen C. Allen, of counsel), for appellant.
    Randall, Gayle & Patt, of Chicago (Michael G. Phillips, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Trans Leasing International, brought this action to recover money from defendants Andrew J. Schmer and Leonard J. Kronen, lessees under an equipment lease. The trial court held that portions of the lease were unconscionable as a matter of law and granted summary judgment in favor of defendants. Plaintiff appeals, arguing that the trial court erred in three respects, by its findings: (1) the contract was unconscionable as a matter of law; (2) the return of the medical equipment terminated the lease as a matter of law; and (3) there was no genuine issue of material fact.

We reverse and remand.

Background

On May 2, 1986, plaintiff and defendants executed a “noncancella-ble” lease for certain medical equipment known as “Comparative Muscle Tester 1000 and Portable Stand.” Pursuant to the agreement, plaintiff ordered the equipment from a supplier designated by defendants. The applicable investment tax credit passed to defendants-lessees, who agreed to pay the cost of $6,015 in 36 equal installments. Defendants made only two of these payments, and, presumably because of difficulties with the machine, ceased payments under the lease. The parties discussed the status of the lease and the problems with the equipment on several occasions. In September 1986 defendants returned some of the leased equipment to plaintiff, who acknowledged receiving it. Plaintiff then shipped the equipment back to P.M. Health Products, the supplier.

In January 1987 plaintiff filed suit because of defendants’ failure to make their monthly payments under the lease. Defendants filed an answer, affirmative defenses, and counterclaim and also filed a third-party complaint against an entity called Myo-Tech. The trial date on the third-party complaint has been continued pending the outcome of this appeal.

Defendants’ motion for summary judgment makes various factual assertions regarding the defects in the leased medical equipment. It also claims that plaintiff accepted the defective equipment and agreed to replace it. Further, the motion states that a representative of plaintiff contacted defendant Kronen and proposed replacing the machine with a new and different one, which would cost more because of the upgraded equipment. Defendants did not want to pay the additional cost for the upgrading. Defendants’ motion then concludes, in one paragraph, “The Plaintiff breached the Contract between the parties by failing to provide usable Equipment and it is undisputed that the Defendants returned and the Plaintiff accepted the Equipment and accordingly, the Contract between the parties was legally terminated in September 1986.” The motion was accompanied by the affidavits of the two defendants.

In response, plaintiff relied on the language of the agreement that expressly disclaims any warranties of the equipment in question. Plaintiff also cited the “Acceptance Notice and Equipment Disclaimer and Agreement,” signed by defendants, which acknowledges their obligation to make payments under the lease regardless of any defect in the equipment. In this document defendants acknowledged that they received the designated equipment in good order and condition. Plaintiff also filed an affidavit of the senior collections officer, who controverted certain statements in defendants’ affidavits regarding plaintiffs representations involving the return of the equipment.

The record does not contain any legal memoranda, nor does it contain a transcript of the argument presented to the court during the hearing on defendants’ motion for summary judgment. The order that was entered on August 25, 1989, provides in pertinent part as follows:

“1. Part of the medical equipment was returned by the defendants to the plaintiff on September 19,1986.
2. The contract (lease agreement) and ‘Acceptance Notice and Equipment Disclaimer and Agreement’ are unconscionable.
IT IS HEREBY ORDERED:-
Defendants’ Motion for Summary Judgment is granted.”

On September 23, 1988, the circuit court entered an express finding that there was no just reason to delay enforcement or appeal from the summary judgment.

Opinion

Defendants’ motion for summary judgment was premised on two bases: (1) that the equipment was defective and useless for defendants’ chiropractic practice; and (2) that plaintiff’s acceptance of the equipment constituted the termination of the agreement and released them from liability. Both grounds raise factual questions that are not readily resolved by summary judgment unless the facts are not in dispute. As for the defects in the equipment, both defendants’ affidavits list problems that they had with the machine. Since this machine was in their sole possession and control, however, it is not the type of assertion that plaintiff could readily controvert. More important, plaintiff’s claim is premised on the terms of the agreement that release it from any liabilities or warranties of the equipment and place the risk of defects on lessee. Hence, from plaintiff’s point of view, alleged defects in the machine are immaterial to its right to collect pursuant to the lease.

The trial court did not expressly find that the equipment was defective, and a finding to that effect in the August 25 order has been stricken out. It may be that this issue is not seriously in dispute, from plaintiff’s viewpoint, but it may well be an issue in the case involving the third-party defendant. For purposes of this appeal, we express no opinion as to the defective nature of the equipment, except as it bears on the central issue of who bears the risk of such defects as between lessee and lessor, and whether or not the lease agreement is unconscionable because of the disclaimer provisions.

The record does not indicate that defendants raised the issue of unconscionability in their motion. Instead, they relied on the fact that plaintiff accepted the machine. Ergo, they assert, the contract terminated, along with their obligations thereunder.

In our opinion, the trial court did not decide controverted issues of fact but instead held that the contract was unenforceable as a matter of law because of the lessor’s attempt to disclaim responsibility for any defects by the provisions in the lease that put the risk of loss on the lessee. Accordingly, the central issue before us is whether the contract is so one-sided and oppressive as to negate a meaningful choice on the part of defendants. See Piehl v. Norwegian Old Peoples’ Home Society (1984), 127 Ill. App. 3d 593, 596, 469 N.E.2d 705, 707 (holding that nursing home contract for continuing care of old person until her assets were depleted or until she was not eligible for medical assistance benefits was not unconscionable).

In Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285, the court was requested to apply the provisions of article 2 of the Uniform Commercial Code (which governs sales of goods) to equipment leases. (Ill. Rev. Stat. 1975, ch. 26, par. 2 — 101 et seq.) In finding that the Code does apply by analogy to equipment leases, the Heller court cautioned that it was not applying article 2 “in toto,” and noted significant differences between a lease and a sale. These differences include the transfer of title, risk of loss, financial considerations and bankruptcy proceedings. The court went on to consider whether the equipment lease in that case was unconscionable under the Code and concluded that it was not, both parties enjoying substantially equal bargaining power. The court rejected a separate challenge, similar to the one made by defendants in the instant case, that the lease’s disclaimers of warranties could not be enforced because they were not in compliance with the Code’s requirement that such disclaimers be conspicuously set off from the rest of the type.

The instant lease, like the one in Heller, provides that the lessor makes no express or implied warranties as to the equipment and that defects in the equipment, or the unfitness of it, will not relieve the lessees from their obligation to make payments.

In Dillman Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 442 N.E.2d 311, the court followed Heller and upheld an equipment lease against an unconscionability challenge. The court noted that the case did not involve an experienced businessman taking unfair advantage of a poorly educated consumer and stated, “Although plaintiff was under no compulsion to lease the equipment and could presumably have purchased it either outright or through the use of conventional financing, it chose to obtain a new copying machine by leasing one for reasons which do not appear in the record. After deciding to lease a new copier, the plaintiff was free to select the machine which would best suit its needs and circumstances. * * * The [lessor] fulfilled its contractual obligations by purchasing and delivering to plaintiff the machine which plaintiff chose. *** [Lessee] now asks us to declare the lease unconscionable because it is unable to assert against the lessor claims as to the equipment’s inadequacy, for which the lessor bears no responsibility whatsoever. We cannot accede to this request. Courts should not assume an overly paternalistic attitude toward the parties to a contract by relieving one or another of them of the consequences of what is at worst a bad bargain ***, and in declaring the lease in issue here unconscionable, we would be doing exactly that.” (Emphasis added.) 110 Ill. App. 3d at 343, 442 N.E.2d at 317.

We find no substantial difference in the circumstances presented by the instant case and those found in Heller and Dillman. Equipment leases of this sort, which allow the lessee to choose the machine and supplier and obligate the lessee to bear the risk of defective equipment, are in the nature of secured financing agreements. A bank that lends money for the purchase of a piece of equipment would not be liable for defects in that equipment. Nor would the bank’s possession of the collateral generally terminate the debtor’s obligation to repay the loan. Similarly, we believe that a lessor who purchases equipment at the direction of a lessee for use in the lessee’s business can legitimately contract to place the burden of defective equipment on the lessee. The lessee has the option of pursuing whatever warranties or other rights it may have against third parties.

In the pending case defendants, in addition to signing the lease containing the disclaimer, signed a separate document titled “Acceptance Notice and Equipment Disclaimer and Agreement.” This document puts defendants on additional notice that plaintiff “makes no expressed or implied warranties as to any matter whatsoever, including, without limitation the condition of the equipment, its merchantability or its fitness for any particular purpose. No defect or unfitness of equipment shall release [lessees] of the obligation to pay rental payments or of any other obligations under this lease agreement.” Because of this reiteration of the lease agreement’s disclaimers, defendants’ argument that the disclaimer was not conspicuous enough under the UCC loses force. The lease agreement itself sets off the disclaimer language by underscoring the following language, which is also printed in all capital letters:

“[Lessor will request the supplier to authorize lessee to enforce all warranties in its own name] BUT LESSOR ITSELF MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION THE CONDITION OF EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. NO DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR OF ANY OTHER OBLIGATION UNDER THIS LEASE.”

We hold that this notice meets the requirement of conspicuousness under the UCC.

Defendants also claim that they are not sophisticated businessmen, while plaintiff has substantial experience with leasing transactions. (They requested the trial court to take judicial notice of the substantial court filings plaintiff has brought.) We make no comment on the relevance of the court filings on the issue of the parties’ relative business experience, but note that the issue is not whether plaintiff has more business expertise than defendants. Defendants are chiropractors, who presumably have complied with the educational and other requirements necessary to practice their trade. They wanted to use medical equipment in their practice and selected the supplier. They signed the agreement with plaintiff, whatever their motivations for leasing the equipment instead of purchasing it directly from the supplier or obtaining another mode of financing. We find no merit in the argument that they should be relieved of their contract, freely entered, because the equipment was defective. They are not left without a remedy, and they may not abandon the contract that expressly puts the risk of defective equipment on them.

We conclude that the lease and the notice of acceptance are not unconscionable. Accordingly, plaintiff is not barred from enforcing the contract on that ground.

Defendants’ other base for summary judgment concerns plaintiff’s acceptance of part of the equipment from defendants.

On this issue defendants contend that they were entitled to terminate the contract, unilaterally, by returning the equipment because it was of no use to them. They also argue that plaintiffs acceptance of the machine should constitute an estoppel, presumably because plaintiff represented that it would replace the machine and did not.

We disagree with both contentions. The general law defendants cite regarding a party’s duty to perform his part of the bargain before he can recover does not fit the facts here. Plaintiff was not in breach of the agreement, regardless of the perceived worthlessness of the machine. Plaintiff had expressly and clearly disclaimed responsibility for such an eventuality under the contract. Plaintiff had fully performed by purchasing the specified equipment from defendants’ designated supplier. Regardless of who initiated the return of the machine, defendants were not automatically entitled to “terminate” the lease and stop paying plaintiff. On the contrary, the lease expressly states that defendants are not to be excused from performance because of defects in the machinery and states, in paragraph 17, “Any said taking of possession shall not constitute a termination of this LEASE and shall not relieve LESSEE of its original obligations.” Defendants cite no facts indicating that plaintiff intended any waiver of rights or represented that it would accept the defective machinery in lieu of defendants’ performance under the lease. That plaintiff might have been in a better position to receive a replacement machine from the supplier or otherwise mitigate damages does not mean that plaintiff intentionally relinquished its rights under the contract.

Moreover, defendants’ reasoning that the acceptance of the machine constituted a termination of the contract and that this “put Plaintiff in breach of the Contract when it failed to have the equipment repaired or replaced” is flawed: if the contract was terminated plaintiff could not have had any contractual duty to have it repaired or replaced.

Nor do we find sufficient support in the record or case law for lessee’s estoppel argument. The cases defendants cite in support are in-apposite. In Nagle v. General Merchandising Corp. (1978), 58 Ill. App. 3d 344, 374 N.E.2d 1137, the purchaser of equipment sued its supplier for breach of contract. Some of the electronic game machines that the plaintiff had purchased were defective. The supplier contended that the buyer should look to the manufacturer’s warranty, not to him. The court noted a pattern of conduct whereby the supplier assumed the responsibility to repair or replace the equipment, even paying for the repair bills. As to this aspect of the case, the court held that the defendant’s attempt to insulate himself from responsibility for the defective machines was inconsistent with his prior conduct.

In the pending case, plaintiff was not the “supplier” and never took responsibility for repairing the machines or paying for same. Moreover, the contract specifically disclaims plaintiff’s responsibility for any loss, damage, or expense caused directly or indirectly by the equipment, including loss of use of the machine. The entire contractual thrust was to limit plaintiffs responsibilities to the initial purchase and delivery of the equipment to defendants. The “Acceptance Notice and Equipment Disclaimer and Agreement” that defendants signed on May 16, 1986, indicates that the equipment was received by them and in “good order and condition and acceptable to [them].” It further “approve[s] payment by [plaintiff] to the supplier” and acknowledges that lessor has performed all of its contractual obligations. In other words, by accepting the equipment and approving the payment to the supplier, defendants undertook the risk of problems arising with the machinery.

We need not speculate whether and under what circumstances there may be a defense to the contract or a remedy against third parties. Certainly, the summary judgment entered below did not cover all possible issues that may occur at trial because the court only held the contract unenforceable as being unconscionable. Our reversal of the summary judgment returns the case to a trial setting, and we express no opinion as to the ultimate merits of the case or any legitimate defenses that may be available. We simply hold that the unconscion-ability doctrine does not bar enforcement of the contract and that plaintiffs acceptance of part of the equipment did not terminate the contract as a matter of law. Accordingly, we reverse the trial court’s order granting summary judgment and remand this cause for further proceedings.

Reversed and remanded.

McMORROW, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN O’NEIL et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—85—1853 through 1—85—1855, 1—85—1952, 1—85—1953 cons.
    Opinion filed January 19, 1990.

      John Powers Crowley and Robert M. Stephenson, both of Cotsirilos & Crowley, Ltd., of Chicago, for appellants Steven O’Neil, Film Recovery Systems, Inc., and Metallic Marketing Systems, Inc.
    Elliott M. Samuels, of Chicago, for appellant Charles Kirschbaum.
    Sam Adam, of Chicago, for appellant Daniel Rodriguez.
    Cecil A. Partee, State’s Attorney, of Chicago (Peter D. Fischer, Jay C. Magnuson, and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a joint bench trial, individual defendants Steven O’Neil, Charles Kirschbaum, and Daniel Rodriguez, agents of Film Recovery Systems, Inc. (Film Recovery), were convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)) in the death of Stefan Golab, a Film Recovery employee, from cyanide poisoning stemming from conditions in Film Recovery’s plant in Elk Grove Village, Illinois. Corporate defendants Film Recovery and its sister corporation Metallic Marketing Systems, Inc. (Metallic Marketing), were convicted of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a)) in the same death. O’Neil, Kirschbaum, Rodriguez, Film Recovery, and Metallic Marketing were also convicted of 14 counts of reckless conduct (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5(a)) involving 14 other Film Recovery employees.

We note here that Gerald Pett and Michael T. Mackay were indicted with the other individual defendants for murder and reckless conduct. B.R. Mackay & Sons, Inc., owned by Mackay, was indicted with the other corporate defendants for involuntary manslaughter. Pett was tried for murder and reckless conduct but was acquitted of all charges. Mackay and B.R. Mackay & Sons, Inc., could not be extradited from Utah and were not tried.

Individual defendants O’Neil, Kirschbaum, and Rodriguez each received sentences of 25 years’ imprisonment for murder and 14 concurrent 364-day imprisonment terms for reckless conduct. O’Neil and Kirschbaum were also each fined $10,000 with respect to the murder convictions and $14,000 with respect to the convictions for reckless conduct. Corporate defendants Film Recovery and Metallic Marketing were each fined $10,000 with respect to the convictions for involuntary manslaughter and $14,000 with respect to the convictions for reckless conduct.

On appeal, defendants urge that their convictions must be reversed and the cause remanded for retrial because the judgments rendered were inconsistent. Defendants also contend that the evidence presented at trial was insufficient to support the convictions.

We conclude that the judgments rendered are legally inconsistent. Therefore, we now reverse those convictions as to both the individual and corporate defendants and remand the matter for retrial. We summarize below those facts, as they appear in the record, which are pertinent to our disposition.

In 1982, Film Recovery occupied premises at 1855 and 1875 Greenleaf Avenue in Elk Grove Village. Film Recovery was there engaged in the business of extracting, for resale, silver from used X-ray and photographic film. Metallic Marketing operated out of the same premises on Greenleaf Avenue and owned 50% of the stock of Film Recovery. The recovery process was performed at Film Recovery’s plant located at the 1855 address and involved “chipping” the film product and soaking the granulated pieces in large, open, bubbling vats containing a solution of water and sodium cyanide. The cyanide solution caused silver contained in the film to be released. A continuous flow system pumped the silver-laden solution into polyurethane tanks which contained electrically charged stainless steel plates to which the separated silver adhered. The plates were removed from the tanks to another room where the accumulated silver was scraped off. The remaining solution was pumped out of the tanks and the granulated film, devoid of silver, shovelled out.

On the morning of February 10, 1983, shortly after he disconnected a pump on one of the tanks and began to stir the contents of the tank with a rake, Stefan Golab became dizzy and faint. He left the production area to go rest in the lunchroom area of the plant. Plant workers present on that day testified Golab’s body had trembled and he had foamed at the mouth. Golab eventually lost consciousness and was taken outside of the plant. Paramedics summoned to the plant were unable to revive him. Golab was pronounced dead upon arrival at Alexian Brothers Hospital.

The Cook County medical examiner performed an autopsy on Go-lab the following day. Although the medical examiner initially indicated Golab could have died from cardiac arrest, he reserved final determination of death pending examination of results of toxicological laboratory tests on Golab’s blood and other body specimens. After receiving the toxicological report, the medical examiner determined Go-lab died from acute cyanide poisoning through the inhalation of cyanide fumes in the plant air.

Defendants were subsequently indicted by a Cook County grand jury. The grand jury charged defendants O’Neil, Kirschbaum, Rodriguez, Pett, and Mackay with murder, stating that, as individuals and as officers and high managerial agents of Film Recovery, they had, on February 10, 1983, knowingly created a strong probability of Go-lab’s death. Generally, the indictment stated the individual defendants failed to disclose to Golab that he was working with substances containing cyanide and failed to advise him about, train him to anticipate, and provide adequate equipment to protect him from attendant dangers involved. The grand jury charged Film Recovery and Metallic Marketing with involuntary manslaughter stating that, through the reckless acts of their officers, directors, agents, and others, all acting within the scope of their employment, the corporate entities had, on February 10, 1983, unintentionally killed Golab. Finally, the grand jury charged both individual and corporate defendants with reckless conduct as to 20 other Film Recovery employees based on the same conduct alleged in the murder indictment, but expanding the time of that conduct to “on or about March 1982 through March 1983.”

Proceedings commenced in the circuit court in January 1985 and continued through the conclusion of trial in June of that year. In the course of the 24-day trial, evidence from 59 witnesses was presented, either directly or through stipulation of the parties. That testimony is contained in over 2,300 pages of trial transcript. The parties also presented numerous exhibits including photographs, corporate documents and correspondence, as well as physical evidence.

On June 14, 1985, the trial judge pronounced his judgment of defendants’ guilt. The trial judge found that “the mind and mental state of a corporation is the mind and mental state of the directors, officers and high managerial personnel because they act on behalf of the corporation for both the benefit of the corporation and for themselves.” Further, “if the corporation’s officers, directors and high managerial personnel act within the scope of their corporate responsibilities and employment for their benefit and for the benefit of the profits of the corporation, the corporation must be held liable for what occurred in the work place.”

Defendants filed timely notices of appeal, the matters were consolidated for review, and arguments were had before this court in July 1987. One of defendants’ principal contentions was that the Federal Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C. §651 et seq. (1982)) preempted State criminal prosecutions against individual and corporate defendants for conditions in an industrial workplace. That identical issue was the subject of a then pending appeal before the Illinois Supreme Court in People v. Chicago Magnet Wire Corp. (1989), 126 Ill. 2d 356, 534 N.E.2d 962. Accordingly, we postponed disposition in this case until the supreme court decided Chicago Magnet Wire. Following the determination in Chicago Magnet Wire that such prosecutions were not preempted under OSHA, we invited the parties to file new briefs and scheduled further oral argument on the remaining issues.

Opinion

Defendants raise two contentions with respect to the consistency of the judgments rendered at trial. Each contention rests, ultimately, on the observation that the offense of murder requires a mental state different from that required for the offenses of involuntary manslaughter and reckless conduct.

In their first contention, defendants argue that the judgments for murder and reckless conduct against individual defendants O’Neil, Kirschbaum, and Rodriguez are inconsistent because, while the offense of murder requires a knowing and intentional act (see Ill. Rev. Stat. 1981, ch. 38, pars. 4 — 5, 9 — 1(a)), reckless conduct does not (see Ill. Rev. Stat. 1981, ch. 38, pars. 4 — 6, 12 — 5(a)). Defendants argue both convictions, however, arose from the same acts of the individual defendants. Defendants reason O’Neil, Kirschbaum, and Rodriguez could not be responsible for intentional and unintentional conduct at the same time and, therefore, the judgments for murder and reckless conduct against them are inconsistent.

Defendants rely on the same logic to support the contention that the murder convictions against individual defendants O’Neil, Kirsch-baum, and Rodriguez are inconsistent with the convictions for involuntary manslaughter against the corporate defendants. To arrive at that conclusion, however, defendants first note that the corporate defendants could be culpable only through the acts and omissions of the individual defendants. Defendants observe that the mind and mental state of a corporation are the collective mind and mental state of its board of directors or high managerial agents. (See III. Rev. Stat. 1981, ch. 38, par. 5 — 4(a)(2).) Further noting that involuntary manslaughter is based on unintended and reckless conduct (see Ill. Rev. Stat. 1981, ch. 38, pars. 4 — 6, 9 — 3(a)), defendants reason the convictions against the corporate entities for that offense are inconsistent with the individual defendants’ convictions for murder because both offenses were based on the same conduct: the acts of the individual defendants.

We find it helpful to set out the pertinent statutory language of the offenses for which the defendants were convicted. The Criminal Code of 1961 defines “murder” as follows:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
He knows that such acts create a strong probability of death or great bodily harm to that individual[.]” (Emphasis added.)
(Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2).)

“Involuntary manslaughter” is defined as:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly[.]’’ (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).)

“Reckless conduct” is defined as:

“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.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5(a).

The supreme court, in People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, and People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, has addressed issues with respect to consistency of verdicts rendered for the above offenses in light of the mental states required to sustain each.

In Hoffer, defendant Donald Hoffer was indicted on three counts of murder in the shooting death of Harold (Ed) Peters. In a trial before a jury, the State presented evidence that Hoffer shot Peters with a shotgun after a heated exchange of words outside Hoffer’s home. Hoffer testified that he thought Peters was reaching for a gun at the time of the shooting. Hoffer stated the shotgun discharged as he lowered it with one hand and reached with his other hand to grab the gunstock.

Pursuant to Illinois Pattern Jury Instructions, the trial judge instructed the jury that the offense of murder included the offenses of voluntary and involuntary manslaughter. Definitional and issues instructions were tendered to the jury on murder, voluntary manslaughter (unreasonable belief that the killing was justified), and involuntary manslaughter. The jurors, however, were not informed that they could return a guilty verdict on only one of the offenses. Hoffer, 106 Ill. 2d at 193, 478 N.E.2d at 339.

On appeal, the appellate court vacated all three convictions and remanded the cause for a new trial.

The supreme court affirmed the reversal, rejecting the State’s argument that the verdicts could be reconciled because the mental state required for murder “subsumed the lesser mental states required for voluntary manslaughter and involuntary manslaughter.” (Hoffer, 106 Ill. 2d at 193-94, 478 N.E.2d at 339.) After noting the three offenses differed only in the particular mental culpability required to sustain each, the court concluded the mental states involved are mutually inconsistent. (Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.) Thus, “[w]here a determination is made that one [of the mental states] exists, the others, to be legally consistent, must be found not to exist.” Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.

Subsequently, in People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, the supreme court applied the Hoffer rule despite the State’s contention that Spears involved separable acts and conduct toward multiple victims and, therefore, the rationale in Hoffer did not apply.

Defendant Henry Spears was charged with attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4(a)) and armed violence (based on the great-bodily-harm form of aggravated battery) (Ill. Rev. Stat. 1983, ch. 38, par. 33A— 2) in the shooting of his estranged wife, Barbara. Spears was also charged with armed violence in the shooting of Annette Keys. In his jury trial, the State presented evidence that Spears was at his estranged wife’s apartment where she, Keys, and two other women had been playing cards. At some point, Spears and Barbara scuffled. Spears drew a gun from a shoulder holster and aimed it at Barbara as she tried to scramble to a side wall. The defendant fired a shot which struck Barbara before she reached the wall. Although Spears was grabbed from behind, he fired a second shot, striking both Barbara and Keys. Spears fired a third shot at Barbara’s head, but missed her.

In his defense, Spears testified that Barbara had pushed him and he had stumbled. When someone then grabbed him from behind, he panicked and pulled the gun from the holster. In the ensuing struggle, the gun accidentally fired.

Pattern jury definitional and issues instructions were tendered for attempted murder, armed violence, and two uncharged counts of reckless conduct (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 5(a)), which, at defendant’s request, the jury was instructed to consider as a lesser included offense of the two armed-violence counts. Five verdict forms were provided: one for the attempted murder of Barbara, two for armed violence, and two for reckless conduct as to Barbara and Annette Keys.

The jury found defendant guilty on all five counts. However, the court entered judgment only on the attempted-murder count and one armed-violence count. The appellate court, with one justice dissenting, determined the verdicts were inconsistent and remanded the cause for a new trial.

The supreme court affirmed the reversal. The court agreed, generally, that where a claim of inconsistent guilty verdicts involves multiple shots or victims, the question is whether the trier of fact could rationally find separable acts accompanied by mental states to support all of the verdicts as legally consistent. (Spears, 112 Ill. 2d at 405, 493 N.E.2d at 1034.) However, the court noted that that principle found no application where the State was attempting to justify guilty verdicts in direct conflict with both its theory of the case at trial and evidence it presented in support of that theory. (Spears, 112 Ill. 2d at 405, 493 N.E.2d at 1034.) The court stated:

“It would be manifestly unfair to allow the State, with the benefit of hindsight, to be able to create separable acts on appeal, neither alleged nor proved at trial. Such an inquiry does not operate in a vacuum. The manner by which a defendant is charged, and the jury is instructed, provides the essential framework for analyzing the consistency of jury verdicts in the troublesome context of multiple shots or victims. We believe that the substance of the allegations charging the defendant, as an unequivocal expression of prosecutorial intent [citation], and what the evidence showed in relation to those charges, are of particular importance in determining whether guilty verdicts could rationally and consistently be based upon separable acts accompanied by the requisite mental states.” (Emphasis added.) Spears, 112 Ill. 2d at 405-06, 493 N.E.2d at 1034.

The court' examined the information and observed that the State had not charged a separate offense for each action or shot fired by defendant. As to conduct toward Barbara, the State had based each of its three charges on the two shots which actually struck her. (Spears, 112 Ill. 2d at 406, 493 N.E.2d at 1034.) Because the same conduct was used as the basis for those charges, the court found the contention of separate acts untenable. (Spears, 112 Ill. 2d at 406, 493 N.E.2d at 1034.) More importantly the court noted, even assuming defendant’s acts were separable, evidence in the record did not support the State’s argument that the defendant’s mental state changed during the shootings to support the State’s hypothesis. (Spears, 112 Ill. 2d at 406, 493 N.E.2d at 1034.) Neither the State nor the defense had presented any evidence to suggest defendant’s state of mind had varied during his acts. (Spears, 112 Ill. 2d at 406, 493 N.E.2d at 1034.) Because the jury’s verdicts as to defendant’s conduct toward Barbara for offenses requiring otherwise mutually inconsistent mental states could not be reconciled based on separable acts or a change in defendant’s mental state, the supreme court determined the verdicts were legally inconsistent under Hoffer. Spears, 112 Ill. 2d at 406-07, 493 N.E.2d at 1034-35.

The supreme court further noted that the Hoffer rule also controlled the guilty verdicts for defendant’s conduct toward Keys. By its guilty verdict, the jury found, in effect, that defendant had acted both recklessly (reckless conduct) and knowingly (armed violence predicated on aggravated battery) in firing the single shot which struck Keys. Based on that single act, the verdicts were legally inconsistent. Spears, 112 Ill. 2d at 407, 493 N.E.2d at 1035.

Under the rule in Hoffer, the judgments rendered by the circuit court in the instant case appear inconsistent as based on mutually exclusive mental states. However, we must consider whether, under similar analysis used by the supreme court in Spears, the judgments are supported by separable acts occurring at different times against different victims by legally different defendants. We therefore begin with a review of the indictments, as they represent the State’s prose-cutorial intentions in charging defendants, and proceed to evaluate the record of evidence in light of those charges.

The murder indictment states that on February 10, 1983, defendants O’Neil, Kirschbaum, Rodriguez, Pett, and Mackay, acting as individuals and as officers and high managerial agents of Film Recovery, committed murder in that they knowingly created a strong probability of Stefan Golab’s death. Specifically, the grand jury charged those individuals had “failed to disclose and make known to [Golab] that he was working with cyanide and substances containing cyanide and failed to instruct him as to matters involving safety procedures and proper handling of said chemicals[.]” Further, those individuals “failed to provide *** Golab with appropriate and necessary safety and first-aid equipment and sundry health-monitoring systems for his protection while working with and handling cyanide and substances containing cyanide[.]” The murder indictment also states O’Neil, Kirschbaum, Rodriguez, Pett, and Mackay failed to “properly provide for the storage, detoxification and disposition of *** cyanide and substances containing cyanide *** [and] failed to advise *** Golab of the dangerous nature of his work, and the conditions under which he engaged in it[.]”

The involuntary manslaughter indictment against Film Recovery and Metallic Marketing states that, on February 10, 1983, they “unintentionally killed Stefan Golab by authorizing, requesting, commanding and performing certain acts of commission and acts of omission[] by its [sic] officers, board of directors and high managerial agents, to wit: Steven J. O’Neil, Michael T. Mackay, Gerald Pett, Charles Kirsch-baum, Daniel Rodriguez, and others, who acting within the scope of their employment *** performed the said acts recklessly in such manner as was likely to cause death and great bodily harm to some individual and *** caused the death of Stefan Golab[.]” The indictment did not otherwise specify the nature of the acts.

The indictments against all defendants for reckless conduct contain identical charges made in the murder indictment against the individual defendants as summarized above, save for stating that the conduct occurred “on or about March 1982 through March 1983.”

With regard to the consistency of the judgments for murder and reckless conduct against defendants O’Neil, Kirschbaum, and Rodriguez, acting solely in their individual capacities, we note the corresponding indictments differ only in one respect. The murder indictment is limited to the individual defendants’ conduct on February 10, 1983, while the reckless conduct indictments concern conduct over a period of time from March 1982 through March 1983, which would include the date of Golab’s death. In all other respects, the same conduct is used as the foundation for the indictments for both offenses against the individual defendants. Although the indictments for both offenses are therefore based on identical acts of the individual defendants, it is conceivable the apparent inconsistency in the convictions for those offenses, due to the mutual exclusiveness of the mental states required to sustain each, might be reconciled by evidence in the record. After carefully reviewing the record, however, we do not conclude that, as to the individual defendants, evidence existed to establish, separately, defendants’ mental states to support separate offenses of murder and reckless conduct.

A total of four witnesses testified exclusively as to events which might establish defendants’ mental states on February 10, 1983. Michael W. Lackman, an Elk Grove fireman and paramedic who responded to the emergency call on February 10, 1983, did not testify as to any condition of the plant at Film Recovery and stated only that someone told him cyanide was used at Film Recovery’s plant. Kenneth Kvidera, an Elk Grove Village police officer who assisted in the ambulance call, stated that when he went into the plant on February 10, 1983, he smelled a strong, foul odor which made him gag and experienced a burning sensation in his throat. Kvidera also noted that a “yellowish-orange” haze was visible in the plant. Kenneth Kryzy-wieki, another Elk Grove Village police officer who responded to the emergency call from Film Recovery on February 10, 1983, also testified to experiencing a burning sensation in his throat when inside the plant. He stated he had difficulty breathing, that his chest hurt, and his eyes teared. Kryzywicki also noted the mist in the plant air and observed that workers present wore paper masks over their faces but did not wear any other protective clothing or equipment. Gordon Hollywood, an Elk Grove Village police investigator, testified to substantially the same facts as Kryzywicki.

The only other witness to testify exclusively with respect to events of February 10 1983, was Mohammed Hassan, the emergency room physician at Alexian Brothers Hospital who treated Golab. Has-san did not testify as to any facts which might establish defendants’ states of mind on February 10,1983.

Several other plant workers testified to being in the plant on February 10, 1983, but their testimony does not establish what the conditions were in the plant on that particular day. Roman Guzowski testified that he was working with Golab when Golab became faint. Antonio Roman and Juan Fuentes testified they were working nearby and saw Golab trembling and begin to foam at the mouth. The parties stipulated that Elevterio Salinas would testify to similar facts. Through other stipulations, the parties agreed Mario Rodriquez and Juan Hernandez would testify they were present when Golab died. In addition, Debra Sadzeck, a bookkeeper, stated she was in the plant on February 10, 1983, retrieving payroll cards, when she saw Golab “slumped over” in the lunchroom.

None of the above testimony in any way substantially differs from that otherwise contained in the record regarding conditions in the plant, generally. Thus, we cannot conclude the record supports a determination that the individual defendants possessed different mental states on February 10, 1983, as distinguished from the period of March 1982 to March 1983, such as might support separate offenses of murder and reckless conduct. While we do not believe it helpful to summarize the considerable amount of that testimony in detail here, those who testified as to working conditions in the plant established the following: workers were not told that they were working with cyanide or that the compound put into the vats could be harmful when inhaled; although ceiling fans existed above the vats, ventilation in the plant was poor; workers were not informed they were working with cyanide and were given no safety instruction; workers were given no goggles to protect their eyes; workers were given no protective clothing and, as a result, workers’ clothing would become wet with the solution used in the vats; there were small puddles of that solution as well as film chips on the plant floor around the vats; the solution burned exposed skin; a strong and foul odor permeated the plant; the condition of air in the plant made breathing difficult and painful; and, finally, workers experienced dizziness, nausea, headaches, and bouts of vomiting.

Because the offenses of murder and reckless conduct require mutually exclusive mental states, and because we conclude the same evidence of the individual defendants’ conduct is used to support both offenses and does not establish, separately, each of the requisite mental states, we conclude that the convictions are legally inconsistent.

With regard to consistency of the judgment for murder against individual defendants O’Neil, Kirschbaum, and Rodriguez and that against the corporate entities for involuntary manslaughter, we observe that the corresponding indictments are both based on Golab’s death on February 10, 1983. However, unlike the murder indictment, the indictment for involuntary manslaughter does not specify the “acts of commission and omission” upon which that charge was based. The material difference between the indictments, however, concerns reference to unnamed “others” in the involuntary manslaughter indictment as acting on behalf of the corporations in causing Golab’s death in addition to naming the same individuals named in the murder indictment. To the extent the involuntary manslaughter indictment contemplates the conduct of others, as well as the individual defendants convicted of murder, as providing a basis for corporate criminal responsibility, it is possible the judgments against the corporate defendants for involuntary manslaughter could be consistent with the judgments for murder against the individual defendants.

To state it differently, in Illinois, a corporation is criminally responsible for offenses “authorized, requested, commanded, or performed, by the board of directors or by a high managerial agent acting within the scope of his employment.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 4(a)(2).) A high managerial agent is defined as “an officer of the corporation, or any other agent who has a position of comparable authority for the formulation of corporate policy or the supervision of subordinate employees in a managerial capacity.” (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 4(c)(2).) Thus, a corporation is criminally responsible whenever any of its high managerial agents possesses the requisite mental state and is responsible for a criminal offense while acting within the scope of his employment. To the extent the record discloses that a high managerial agent of Film Recovery or Metallic Marketing, other than individual defendants O’Neil, Kirschbaum, and Rodriguez, might provide foundation for the charge of involuntary manslaughter, that judgment would not be inconsistent with judgment for murder against the individual defendants.

We first note that, because Pett was acquitted of all charges, we do not believe his conduct can be considered in establishing corporate criminal responsibility. As Pett’s acts did not support either the charge against him for murder, requiring intentional conduct, or for reckless conduct, requiring recklessness, we find no basis upon which we could conclude he could have performed the offense of involuntary manslaughter. Further, recognizing Pett’s acquittal might not necessarily preclude a determination that, while he may not have performed the offense, he otherwise authorized, requested, or commanded its performance, we observe that the record contains no evidence to support criminal responsibility on that basis.

In addition to O’Neil, Rodriguez, Kirschbaum, and Pett, other directors or high managerial agents of the corporations are identified in the record. Testimony established that Al Tolin was on the board of directors at Film Recovery and that Milton Marks was considered a vice-president of Metallic Marketing. The record also establishes that, for approximately seven months from November 1982 until the summer of 1983, Glenn N. Love was employed as the comptroller at Film Recovery. Further, Thomas VandenLangenberg was employed at Film Recovery for approximately one year, beginning November 1980, as manager of the shipping and receiving department and, thereafter, until January 1983, in the accounts payable department, keeping track of customer accounts. However, beyond testimony identifying those individuals and their positions in the corporations’ structures, the record does not contain evidence of any conduct of those individuals such as would provide foundation to establish criminal liability against either of the corporate defendants for involuntary manslaughter.

The record discloses evidence as to only five other individuals whose conduct might conceivably support the charge of involuntary manslaughter such as might provide a basis to reconcile the judgment for that offense against the corporate defendants with the judgment for murder against O’Neil, Rodriguez, and Kirschbaum. Those individuals were Michael T. Mackay, who was indicted but not tried, Richard Stucker, Bob Major, Antonio Roman, and Fred Kopp, who were not named in the indictments. We summarize below, in detail, the nature and extent of evidence in the record with respect to the conduct of those individuals.

Regarding Michael T. Mackay, Susan Bellomo, a secretary at Film Recovery, testified that Mackay was associated with Metallic Marketing. Debra Sadzeck testified that Mackay was on the board of directors at Film Recovery. Sadzeck also stated that Mackay was involved in operations of Silver Recovery Systems, Inc., a company operating out of Salt Lake City, Utah. She acknowledged that she might have taken orders from Mackay during December 1982, or January or February 1983, if he “called in.”

Regarding Richard Stucker, Officer Kenneth Kvidera testified that on February 10, 1983, he spoke to Stucker, who identified himself as the vice-president of Film Recovery. Kvidera stated he was told Stucker was present when Golab was carried out of the plant on February 10, 1983, after Golab collapsed. Investigator Gordon Hollywood testified that he spoke to Stucker along with Officer Kvidera on February 10, 1983. After that conversation, he accompanied Stucker through the plant to the warehouse area, where, Stucker explained, Golab had been working. Hollywood stated Stucker did not expressly tell Hollywood that Stucker was vice-president of Film Recovery. Hollywood stated, however, that he saw Stucker “directing people,” indicating to him that Stucker was someone “in charge.” Debra Sadzeck testified Stucker was sales coordinator for Film Recovery. Kathy Er-pito, who had been employed as a receptionist and as an accountant at Film Recovery, testified Stucker was one of her “bosses.” She stated Stucker was also a corporate officer of Associate Silver Recyclers, Inc., which operated out of the same premises as Film Recovery. Erpito testified Stucker signed checks for Associate Silver Recyclers, Inc., to Film Recovery and Metallic Marketing.

Regarding Bob Major, Susan Bellomo testified Major was one of the individuals she took orders from. Bellomo stated she had asked Major, along with O’Neil, Kirschbaum, Pett, and Fred Kopp, about fumes that she smelled in the office. She was told by everyone she asked that the smell came from the chemical used in the plant. The smell was attributed to ventilation in the plant or the opening and closing of the plant’s doors. Bellomo stated Major was one of the individuals she would advise concerning visits by firemen or fire inspectors. Debra Sadzeck described Major as O’Neil’s “right-hand man.” Sadzeck stated that Major’s title was “director of education” at Film Recovery’s plant. Michael Selway, an industrial hygienist for the United States Department of Labor Occupational Safety and Health Administration, testified that on February 22, 1983, he spoke to Major when he visited Film Recovery after being assigned to investigate Golab’s death. Selway also identified Major as the director of education. Selway testified he understood Major’s responsibility to be to “go out into the field and educate people” as to the process used at the plant.

Regarding Antonio Roman, Secundino Boyas, a plant worker at Film Recovery, testified Roman was “like a supervisor.” Juan Fuentes stated that Roman was “in charge” of and gave orders to workers grinding film for processing. The parties stipulated that, if called to testify, Jose Campos, also a plant worker, would establish that Roman was his boss when Campos worked in the film grinding room.

In his own testimony, Roman denied that he was a boss. He indicated that, because he could speak English and Spanish, Kirschbaum occasionally would have him tell only Spanish-speaking plant workers what Kirschbaum wanted them to do.

Regarding Fred Kopp, in addition to the reference to Kopp in her testimony noted above, Susan Bellomo testified Kopp was general manager of Film Recovery. Bellomo described Kopp’s title as “vice-president.” She stated Kopp had “decision-making powers” at Film Recovery and was involved in the day-to-day operations of the plant during 1982. Bellomo testified Kopp left Film Recovery in January 1983 and was not employed with the company when Golab died. Glenn N. Love testified Kopp left Film Recovery in December 1982 and had no further involvement with the corporation. Debra Sadzeck stated Kopp was a vice-president of Metallic Marketing and was on the board of directors of Film Recovery. Kathy Erpito named Kopp as one of her bosses at Film Recovery and stated she complained to him about headaches she experienced while at work.

In his own testimony, Kopp acknowledged that he was general manager at Film Recovery and stated that while he was employed at Film Recovery he was in charge of plant operations. Kopp testified he joined Film Recovery in January of 1980 and worked there until he was terminated in October 1982. Kopp stated his direct involvement in the plant ended in August 1981, although he did return occasionally. Kopp’s direct testimony otherwise concerned, generally, efforts taken to insure the safety of workers in the plant, including testing air in the plant, furnishing safety equipment and protective gear for workers, and adding ventilation fans.

On cross-examination by the State, Kopp admitted that when the cyanide compound was first put into the tanks in which the granulated film was soaked, there was a possibility of producing cyanide gas. Kopp stated workers would work over those tanks on the day after the solution was mixed. Kopp admitted that, other than the ceiling fans, there was no local exhaust mechanism on those tanks and that, if cyanide gas was released, the workers working over the tanks had no protection from inhaling cyanide gas.

©6 After carefully considering the above testimony, we cannot conclude the record supports a basis upon which we might reconcile the individual defendants’ convictions for murder with the convictions for involuntary manslaughter against Film Recovery and Metallic Marketing.

First, we must dismiss any consideration of the conduct of Antonio Roman because there is no evidence in the record that Roman was in any way responsible for formulating corporate policy or supervising subordinate employees in a managerial capacity for either Film Recovery or Metallic Marketing. Roman’s supervisory authority at Film Recovery was limited to those workers granulating film and amounted to nothing more than translating, into Spanish, directions of Kirschbaum to those workers who could not understand English. Further, there is no evidence linking Roman to the operations of Metallic Marketing.

While the record indicates the other individuals might be considered high managerial agents of one or both of the corporations, we do not find evidence of their conduct in the record to show they committed the offense of involuntary manslaughter to establish criminal responsibility as to the corporate defendants.

The record contains no evidence of any conduct of Michael T. Mackay, either in his association with Metallic Marketing or as a director of Film Recovery, other than to possibly have given orders to Debra Sadzeck. No testimony establishes what such orders might have been.

In similar fashion, although evidence establishes Richard Stacker as a vice-president of Film Recovery with authority to direct subordinate employees, the record fails to contain evidence of any conduct which might form a basis for criminal responsibility against Film Recovery for involuntary manslaughter. Testimony establishes only that Stacker was on the premises on the day Golab died. No evidence links Stacker to the operations of Metallic Marketing.

Although Bob Major was identified as the director of education at Film Recovery and as O’Neil’s “right-hand man,” the record again fails to contain evidence of any conduct by Major whatsoever which might support a charge of involuntary manslaughter. No evidence links Major to the operations of Metallic Marketing.

The testimony of and about Fred Kopp comes nearest to providing support for the charge of involuntary manslaughter against Film Recovery. That testimony establishes that Kopp was the general manager of Film Recovery and was, while employed there, involved in day-to-day operations in the plant. By his own admission, Kopp stated it was possible that workers working over the tanks in which film was being soaked could inhale any resulting gas fumes produced and were not protected from doing so through a local exhaust system or other protective means. However, the record establishes that Kopp’s employment at Film Recovery ended, at the earliest, in August 1982, or, at the latest, in January 1983. In either case, testimony establishes that Kopp was not employed at Film Recovery at the time of Golab’s death on February 10, 1983. Even assuming that Kopp’s admissions indicate the type of conduct as might otherwise provide foundation for criminal responsibility against Film Recovery for involuntary manslaughter, the record contains no evidence that Kopp’s conduct, while employed with Film Recovery, caused Golab’s death after Kopp had left the company. No evidence links Kopp with the operations of Metallic Marketing.

Therefore, we find no basis in the record upon which to conclude that the conduct of a high managerial agent, apart from that of the individual defendants found guilty of murder, could provide the basis for establishing criminal responsibility against the corporate defendants for Golab’s death. And, because the same conduct is used to support offenses which have mutually exclusive mental states, we conclude the judgments rendered for both offenses are legally inconsistent.

In Hoffer, the supreme court affirmed its earlier pronouncement in People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, and People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, that, where judgments are legally inconsistent, as they are when rendered for offenses requiring mutually exclusive mental states, reversal and retrial must follow. (People v. Hoffer (1985), 106 Ill. 2d 186, 195-99, 478 N.E.2d 335, 340-42.) We are mindful, however, the supreme court has also directed that, where, as in the instant case, defendants challenge the sufficiency of evidence at the first trial, it is necessary to address that issue to avoid the risk of subjecting defendants to double jeopardy. (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) Our review of the record does not lead us to conclude that the evidence, as first adduced, was so insufficient as to bar retrial.

Evidence at trial indicated Golab died after inhaling poisonous cyanide fumes while working in a plant operated by Film Recovery and its sister corporation Metallic Marketing where such fumes resulted from a process employed to remove silver from used X-ray and photographic film. The record contains substantial evidence regarding the nature of working conditions inside the plant. Testimony established that air inside the plant was foul smelling and made breathing difficult and painful. Plant workers experienced dizziness, nausea, headaches, and bouts of vomiting. There is evidence that plant workers were not informed they were working with cyanide. Nor were they informed of the presence of, or danger of breathing, cyanide gas. Ventilation in the plant was poor. Plant workers were given neither safety instruction nor adequate protective clothing. Finally, testimony established that defendants O’Neil, Kirschbaum, and Rodriguez were responsible for operating the plant under those conditions. For purposes of our disposition, we find further elaboration on the evidence unnecessary. Moreover, although we have determined evidence in the record is not so insufficient as to bar retrial, our determination of the sufficiency of the evidence should not be in any way interpreted as a finding as to defendants’ guilt that would be binding on the court on retrial.

Reversed and remanded.

COCCIA, P.J., and MURRAY, J., concur.

      Feckless conduct charges as to six other Film Fecovery employees were dismissed by the State at the close of its case in chief.

      To avoid confusion, we have omitted reference to the name of B.R. Mackay & Sons, Inc., in the involuntary manslaughter indictment.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JODY CROSE, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ABEL GARZA, Defendant-Appellant.
    First District (5th Division)
    Nos. 1—87—1470, 1—87—1472 cons.
    Opinion filed January 19, 1990.

      Michael J. Pelletier and Linda Eigner, both of State Appellate Defender’s Office, of Chicago, for appellant Jody Crose.
    Randolph N. Stone, Public Defender, of Chicago (Mark H. Kusatzky and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellant Abel Garza.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a joint bench trial, defendants Jody Crose and Abel Garza were convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 561k, par. 1401(a)(2)), and each sentenced to six years’ imprisonment. (Crose’s and Garza’s cases were severed from that of a third defendant, Carl Tatman, who had been convicted of narcotic trafficking in Georgia.) Both defendants seek a reversal of their convictions. For the reasons set forth below, we affirm.

Pursuant to the State’s witnesses at trial, two agents of the Vermilion County Metropolitan Enforcement Group (MEG), Patty Cava-lenes and Kathy Shappaugh, met Carl Tatman in Urbana, Illinois, on June 19, 1985, for the purpose of going to a Chicago suburb to buy four ounces of cocaine. Tatman and another man named Steve Cov-erell got into the agents’ undercover van, and they drove to their ultimate destination, Casey’s Tavern in Sauk Village, Illinois.

While in Casey’s parking lot, Tatman pointed to an individual later identified as defendant Crose, who was apparently standing nearby, and stated that he was “the source.” Thereafter, Tatman left the van, walked over to Crose, talked with him, and then brought him to the van and introduced him to the agents. Tatman stated to the agents that only one of them could go with him and Crose to buy the cocaine. Everyone then went into the tavern. Tatman and Crose left to make a telephone call from a pay phone. When they returned, Tatman told the agents that his source did not yet have the cocaine, but that they should take the source their money because he would have the cocaine in a half hour. Tatman, Crose and the agents then drove to defendant Abel Garza’s home, the directions to which were supplied by Crose. Tatman, Crose and Agent Cavalenes entered the house; Agent Shappaugh remained in the van. In Garza’s kitchen, Cavalenes gave $8,400 to Tatman, who showed it to Garza and then returned it to her. Tatman, Crose and Cavalenes then left Garza’s house, and the agents and defendants drove back to Casey’s Tavern. During the trip, Crose asked Cavalenes how long it would take her to sell the cocaine she was buying. Cavalenes stated it would take about one week.

One half hour after they arrived at Casey’s, Crose received a telephone call and thereafter related that “the source” had the cocaine. Tatman, Crose and the two agents returned to Garza’s home; Agent Shappaugh again remained in the van while the others entered the house. The parties met with Garza in his kitchen. He stated that he only had two ounces of cocaine and that the agents would have to wait for the other two ounces. Tatman asked Garza to get the two ounces he had, whereupon Garza left the room and returned with a plastic bag containing white powder. Garza handed the bag to Tat-man, and Tatman handed it to Cavalenes. After Tatman stated he wanted to sample the contents, Cavalenes reached into her handbag and activated an alert signal to surveillance units in the area. Tat-man and Garza were placed under arrest in the kitchen, while Crose, who had been standing in the doorway of the back door of the house, was yanked out of the house by another agent and arrested. Agent Cavalenes conducted a field test on the white powder given to her, initialed and dated the bag, and gave it to another MEG agent. The white powder was later determined to be cocaine. A grinder, glass mirror, and a gun missing its barrel were later discovered by the police in Garza’s home.

At trial, Agent Cavalenes also specifically testified that she could not recall if Garza stated the cocaine was going to specific individuals or not; she wrote in her report that Garza said he would sell to Crose and Tatman, who would then sell to her; she never talked to Garza about the price; and she did not hand Garza any money. David Zarbock, a State police officer, corroborated Cavalenes’ version of the events leading up to defendants’ arrests. He also testified that the day after the arrests, he delivered the plastic bag containing the white powder to Lynn Pora at the State Police Forensic Laboratory in Maywood, Illinois. Pora subsequently testified, over the objection of defendants challenging her qualifications to testify as an expert, that the white powder contained synthetic cocaine and weighed 54.1 grams.

Defendant Crose testified that he was outside of Garza’s kitchen when he was arrested, he had never been arrested before, he knew that Cavalenes “was there that night to purchase cocaine,” he had given the agents directions to Garza’s house, he had received a telephone call from Garza at Casey’s Tavern and related to Tatman that the cocaine was ready, he did not see Cavalenes show her money to Garza, he did not see anything delivered to Cavalenes, and he was not going to receive any benefit from his participation in the alleged transaction. On cross-examination, when the prosecutor “informed” Crose that his “job that night was to hookup Agent Cavalenes and Tatman with Abel Garza,” he replied, “Yes, sir”; he was Tatman’s “connect.” Upon the prosecutor’s further statement to Crose that “You were the intermediary party whose job it was to facilitate the sale of cocaine,” Crose answered in the affirmative. Crose also testified that Tatman had requested that he check to see if he could locate some cocaine for him, that he did not know exactly where to go, but he knew “where to look,” and that Tatman called him repeatedly and “kept pestering” him.

Defendant Garza testified that he did not hand Cavalenes a “slipper” containing white powder, but that he handed it to Tatman and that he never saw Cavalenes touch it. On cross-examination, he admitted Tatman, Crose and Cavalenes were at his home to get cocaine, but he denied that he was to sell cocaine to Cavalenes or that she showed him any money. Garza also stated that money was never discussed; he got the cocaine from his supplier; he mixed the cocaine with another substance that he had; when Tatman, Crose and Cava-lenes came to his house the second time he got the cocaine from his bedroom; and that Cavalenes was in his kitchen when he handed the cocaine to Tatman.

The trial court subsequently found both defendants guilty of delivery of a controlled substance and sentenced them each to six years’ imprisonment. These consolidated appeals followed.

I

Defendant Crose argues on appeal that the trial court’s denial of his motion to produce an informant deprived him of his constitutional rights to confront witnesses against him and to prepare his defense, he was denied effective assistance of counsel, and the trial court erred in allowing the State’s “chemist” to testify as an expert. Crose’s first argument, that the trial court improperly denied his motion to produce an informant is based on the following facts. On the day of trial, before hearing testimony, the trial court asked the State to clarify the role of an individual named Jacqueline Grant, whose name had apparently surfaced on reports of an uncharged transaction involving Grant and Tatman. The State subsequently disclosed that Grant was a citizen working for the MEG. Defense counsel informed the court that Grant’s name was surfacing for the first time and that information concerning her role in the drug transaction resulting in Crose’s arrest would be important to an entrapment defense. The court responded that it would allow defense counsel great latitude to make inquiries on cross-examination. Defense counsel argued, however, that the court’s approach would not adequately address the problem and pointed out that an uninformed cross-examination could open up areas the defense might not knowingly have chosen to explore. Accordingly, defense counsel objected to commencement of the trial and moved that the court order the State to produce the newly revealed informant. The court denied the motion, stating that it was not sure that Grant had “any real materiality or relevance in the case.” The court did, however, invite defense counsel to renew the motion later on in the case once the facts and any potential relevance Grant might have in the case became more clear. Crose’s counsel never renewed the motion.

It is well settled that strong public policy reasons favoring nondisclosure of an informant must be balanced against a defendant’s need for disclosure in order to prepare his defense (People v. Stoica (1987), 163 Ill. App. 3d 660) or where disclosure is essential to a fair determination of a cause (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623). Whatever the circumstances, however, a defendant has the burden of showing a need for disclosure. People v. Stoica (1987), 163 Ill. App. 3d 660.

In the instant case, Crose relies on a number of cases in support of his argument that the trial court should have required the State to produce Grant (see People v. Raess (1986), 146 Ill. App. 3d 384; People v. Coleman (1984), 124 Ill. App. 3d 597; People v. Castro (1973), 10 Ill. App. 3d 1078; Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623). Those cases are distinguishable, however, because they, unlike the situation before us, involved informants who played an active role in the criminal occurrence by either participating in or witnessing the crime. For example, in Raess, an unnamed informant approached the defendant, initiated conversations about narcotics and persistently appealed by telephone and in person that the defendant procure cocaine from him and his partner. The Raess court determined that disclosure of the informant was necessary because he had over a period spanning three weeks “played a prominent, if not pivotal, role in laying the groundwork for the offense and, possibly, in inducing defendant to commit it.” (Raess, 146 Ill. App. 3d at 392.) In Coleman, the informant tipped the police that the defendant was selling drugs and also witnessed the defendant’s activities forming the basis for the drug-related charges. The informant, therefore, was the only witness who could corroborate or rebut the State’s evidence of the defendant’s possession of the drugs. In Castro, the defendant alleged and the police admitted that the informant was present at the time and place of a drug transaction. In Roviaro, the informant sought to be produced was the purchaser of the narcotics from the defendant. In the instant case, the record discloses no evidence that Grant ever knew or spoke to Crose, and Grant simply was not a participant in or a witness to the crime with which Crose was charged.

We also find without merit Crose’s “entrapment defense” argument. He contends that he could not determine Grant’s precise relevance to a possible entrapment defense without the opportunity to interview her and, moreover, that he was entitled to decide, and not the government, whether to call Grant or to interview her in preparation for trial. In support thereof, Crose relies on People v. Coleman (1984), 124 Ill. App. 3d 597. In Coleman, the State refused to disclose the identity of an informant who had acted in a dual role as a tipster and material witness of the defendant’s alleged drug activities. The State suggested that the court conduct an in camera interview of him to determine whether his testimony would be helpful to the defense. The trial court ruled, and this court affirmed, that to grant the State’s request “would infringe on the duty of defense counsel to decide on the strategy most advantageous to his client and to make tactical decisions accordingly.” 124 Ill. App. 3d at 601.

We first observe in the instant case, however, that, as discussed above, Grant was not involved in the crime with which defendant was charged and she was neither a tipster nor witness as admittedly the informant was in Coleman. We also note that in order to raise the defense of entrapment, a defendant must present “some” evidence thereon, before the burden shifts to the State to prove, in addition to the elements of the offense, the absence of entrapment beyond a reasonable doubt. (People v. Raess (1986), 146 Ill. App. 3d 384.) Here, defense counsel presented no specific reasons as to why the trial court should order Grant’s production; he merely alleged that “it [she] would have something to do with the entrapment defense” and he inquired whether Grant had a criminal record. In addition, defense counsel made no claim that Grant did anything to induce Crose to commit the offense with which he was charged. In other words, defense counsel offered only speculation for the court’s consideration, which clearly was insufficient “evidence” requiring the production of Grant. (See People v. Thornton (1984), 125 Ill. App. 3d 316 (notwithstanding the fact that an informant participated in the first of three drug transactions between the defendant and a police officer, the defendant’s argument that the informant might possess knowledge relevant to a defense of entrapment concerning the third transaction with which the defendant was charged and at which the informant was not present was speculation and insufficient to require production of the informant).) In summary, defendant failed to present any scintilla of evidence to rebut the State’s explanation to the court that Grant was not involved in the drug transaction for which defendant was charged. Accordingly, we hold that the trial court properly denied defendant’s motion for production of Grant.

Crose next argues that he was denied effective assistance of counsel because his attorney allegedly failed to advise him concerning his decision to testify and admitted his guilt in arguing to the court that he “assisted” Tatman in the delivery of the cocaine. The State asserts that Crose’s counsel’s strategy was competent under the circumstances; he focused on attacking the chain of custody of the alleged cocaine and on minimizing Crose’s role in the transaction.

In order to show ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced him (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052), such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengable. 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Here, Crose first argues that no conceivable strategy supported his counsel’s decision to put him on the stand, especially for purposes of merely minimizing his culpability, where the State’s case against him was based on an accountability theory. In so doing, Crose asserts that his counsel demonstrated a complete ignorance of the principle of accountability. We find this contention without merit. The evidence presented by the State alone overwhelmingly implicated Crose in the transaction, i.e., Agent Cavalenes’ testimony, which was corroborated by Agent Shappaugh and Officer Zardock. Under these circumstances we therefore cannot say that Crose’s counsel’s advice to him to take the stand does not qualify as a strategic decision, albeit to minimize his culpability.

We further disagree with Crose’s contention that “only two defenses made sense that [he] did not lend assistance at all, or that any help he rendered was not for the purpose of facilitating the offense,” since the State merely showed that he played a part in the events leading up to the delivery and not that he assisted in the commission of the offense with a conscious objective or purpose to facilitate the offense. Based on the facts, this contention is also completely without merit. In other words, Crose is claiming that he did what he did without any conscious/intentional objective to facilitate the delivery of cocaine from Garza to Tatman or the agents; he did not intentionally or consciously intend to meet with Tatman for the purpose of taking him and the agents to Garza in order for them to purchase cocaine. Based on the record before us, there could be no other explanation for Crose’s conduct; it is completely ludicrous to suggest that Crose merely happened to meet Tatman in the parking lot and that he directed the agents and Tatman to Garza’s home for any other purpose, especially since he testified he had knowledge that the parties involved wanted to purchase some cocaine.

For the foregoing reasons, we also find Crose’s argument without merit that his counsel prejudiced him by arguing his assistance in the transaction in order to minimize his culpability. The only strategy available to defense counsel under the circumstances, besides challenging the chain of custody of the cocaine, was to so argue. Specifically, the statements complained of in support of his argument were that his counsel, in closing, argued that he “was just there in order to assist Tatman. *** He assisted Tatman in getting over there to Garza’s”; that he merely made an introduction and gave directions to Garza’s but never touched any money or cocaine; that he was not in the room when the alleged delivery took place; and that he was not to receive any benefit from the alleged transaction. Crose contends that these “points” were irrelevant if he in fact intentionally assisted in a delivery of cocaine and thus counsel ignored the principle of accountability. We disagree; these points do not unequivocally admit of anything contrary to what Crose himself testified to concerning his involvement. See People v. Chandler (1989), 129 Ill. 2d 233.

We also find the circumstances here distinguishable from People v. Hattery (1985), 109 Ill. 2d 449, upon which Crose relies. In Hattery, defense counsel in his opening statement told the jury that “ ‘[a]t the end of your deliberations, you will find [the defendant] guilty of murder.’ ” (109 Ill. 2d at 458.) The Hattery court reversed the defendant’s conviction, holding that the statement was an unequivocal concession of the defendant’s guilt and that counsel failed to advance any theory of defense. Here, Crose’s counsel’s strategy was to attack the chain of custody of the cocaine in the case presented by the State. Once Crose’s case was presented and the evidence against him was overwhelmingly established, counsel attempted to minimize his role. While this tactic is concedely debatable (see People v. Hinton (1987), 163 Ill. App. 3d 227), we cannot say that it rose to the level of an unequivocal admission of his guilt. Similarly, unlike Hattery, defense counsel here, by attacking the chain of custody of the cocaine, subjected the prosecution’s case to a meaningful adversarial testing (see People v. Chandler (1989), 129 Ill. 2d 233). Thus, defense counsel presented more than a mitigating theory in defense of Crose.

We further observe, assuming arguendo that counsel conceded Crose’s guilt, that “Hattery did not hold that it is per se ineffectiveness of counsel whenever an attorney concedes his client’s guilt to offenses and the record fails to show the client’s consent, if there is overwhelming evidence of that guilt” (People v. Chandler (1989), 129 Ill. 2d 233, 246, citing People v. Johnson (1989), 128 Ill. 2d 253). “[I]f a concession of guilt is made, ineffectiveness may be established; however, the defendant faces a high burden before he can forsake the two-part Strickland, test.” (129 Ill. 2d at 246.) The Strickland test requires that a defendant not only must show that his counsel’s performance was deficient and that the deficient performance prejudiced him, but also that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) Based on the record before us, we cannot say that the trial court would have reached a different verdict, absent the alleged unprofessional errors of Crose’s counsel.

Finally, we observe that defense counsel’s last words to the court, after arguing that the State’s chain of custody of the cocaine was deficient and there was insufficient evidence to support Crose’s conviction, were: “We respectfully request the court to find Jody Crose not guilty of the charges made against him.” Clearly, defense counsel was not conceding defendant’s guilt.

Crose’s last argument that the trial court erred in allowing the State’s “chemist” to testify as an expert will be discussed below, since Crose has adopted Garza’s argument regarding this issue.

II

Defendant Garza argues on appeal that he was denied effective assistance of counsel because his counsel failed to seek a severance of his case from that of Crose based on the claim that their defenses were antagonistic, the trial court erred in admitting the hearsay testimony of Agent Cavalenes as a coconspirator exception to the hearsay rule, and the court erred in allowing the State’s “chemist” to testify as an expert witness. With respect to Garza’s first argument, we observe that, generally, jointly indicted defendants should be tried jointly unless their defenses are inconsistent, antagonistic or general principles of fairness require otherwise. (People v. Bean (1985), 109 Ill. 2d 80.) A defendant who does not wish to be jointly tried may file a motion for severance (Ill. Rev. Stat. 1985, ch. 38, par. 114—8) and, where the motion is based on a claim of antagonistic defenses between himself and a codefendant, the defendant seeking the severance must make a specific showing of antagonism, including a detailed recitation of what his defense would be; mere apprehension of prejudice is not enough. People v. Bean (1985), 109 Ill. 2d 80.

In the instant case, we do not find any antagonism between Garza’s and Crose’s defenses or that, as Garza also appears to argue, their defenses were inconsistent requiring a severance, based on his assertion that his testimony conflicted drastically with the testimony given by Crose. Specifically, as Garza points out in his appellate brief, Crose’s defense was that he “did not receive any benefit by the transaction. Mr. Garza’s counsel argued that the evidence did not show a delivery to Cavalenes, that she only had it for a moment before Tatman got it back. Mr. Garza never testified that he had an agreement to deliver anything to Cavalenes.” Garza states that these defenses conflict in a material way in that he did not deliver anything to Cavalenes, yet Crose “pointed a finger at him” by testifying that he was Garza’s “connect.” Our review of the record, however, reveals that Crose did not testify that he saw Garza hand the cocaine to Agent Cavalenes. In fact, Crose testified that he did not observe Garza deliver any substances to the agent because he was outside of the kitchen when the alleged delivery occurred. Moreover, although Crose testified that he was the “connect” and intermediary between Tatman and the agents, such an admission is not the equivalent of a statement that he actually saw Garza deliver the cocaine to Cava-lenes or that he was to sell her anything. Since we find that Garza’s and Crose’s defenses were not antagonistic or inconsistent, a severance motion by Garza would have been a futile act and the motion disallowed (see People v. Zambetta (1985), 132 Ill. App. 3d 740). Accordingly, Garza’s contention of ineffective assistance of counsel is without merit.

We also reject Garza’s argument that the trial court erred in allowing the hearsay testimony of Agent Cavalenes based on the co-conspirator exception to the hearsay rule. The statement at issue was made to investigating officers by a woman named Kathy, whom the agents met at an address where they were supposed to meet Tat-man prior to their actual meeting with him. Kathy stated that she had just received a telephone call from Tatman and that he would be back shortly. Upon objection by both defendants’ counsel, the State contended that the statement was not offered for the truth of the matter asserted, and the court recognized that the statement would account only for the investigators’ future actions or conversations.

We agree with the trial court’s ruling. It is well settled that statements which would be hearsay if offered for the truth of the matter asserted therein may be admissible if offered for the limited purpose of explaining why the police conducted their investigation as they did. (People v. Sanchez (1987), 163 Ill. App. 3d 186.) We further observe that Garza’s contention that the statement was offered to show a large conspiracy and to inflame the trier of fact thereby is also without merit. As the State points out, although the trial court discussed the coconspirator hearsay exception, it did so before hearing the testimony and before the prosecutor specifically stated that it was not being offered for the truth of the matter asserted. Moreover, assuming admission of the statement had been error, the statement simply had no bearing whatsoever on the outcome of Garza’s case; there is no reasonable possibility that the verdict would have been different had the hearsay been excluded. See People v. Clark (1987), 160 Ill. App. 3d 877.

Garza’s final argument, as well as Crose’s, concerns the testimony of the State’s forensic scientist or, as referred to by defendants, the State’s “chemist,” Lynn Pora. Both defendants contend that the trial court erred in finding her qualified to testify as an expert witness.

The record discloses that Pora is employed by the Illinois Department of State Police, Bureau of Forensic Service and Identification. She worked as a scientist for five years. She has a bachelor’s of arts degree in biology with a minor degree in chemistry. Upon her hiring she participated in a one-year intensive training program with the department. She is a member of two professional societies and has attended various seminars. She has presented two papers at the Midwest Association of Science meetings, and the State police laboratory in which she works is certified and accredited by the American Society of Lab Directors. She had analyzed controlled substances several thousand times and had specifically tested for cocaine about 2,500 times prior to 1985. Defendants’ objections to Pora’s qualifications appear to be based simply on the fact that the one-year training program she took in 1982 and 1983 was not at a lab certified by the Illinois Department of Public Health and that she could not remember the number of credits or the amount of chemistry courses she took to obtain her bachelor’s degree. Accordingly, defendants contend that the trial court abused its discretion in allowing Pora to testify as an expert. In support thereof, they cite two cases which simply are inapplicable to the situation before us. In those cases the courts allowed individuals to testify as experts in areas outside of their profession and where they lacked sufficient training and experience. (See People v. Fiorita (1930), 339 Ill. 78; People v. Owens (1987), 155 Ill. App. 3d 990.) Here, Pora had worked in the field as a forensic scientist for five years and had additional education and training as discussed above. This matter was within the trial court’s discretion as to whether her education, training and employment qualified her as an expert, which our statute defines as a person “who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense.” (107 Ill. 2d R. 220(a)(1).) We see no reason to disturb the trial court’s determination that Pora’s qualifications comport with the statutory definition of an expert.

In light of the foregoing, we affirm the convictions of both defendants.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.