author: PRESIDING JUSTICE MANNING

text:
    PRUDENTIAL INSURANCE COMPANY, Plaintiff-Appellant, v. EDWARD ROMANELLI et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—2779
    Opinion filed February 16, 1993.

      Cassiday, Schade & Gloor, of Chicago (Brian J. Hickey, of counsel), for appellant.
    Fraterrigo, Best & Beranek, of Chicago (Michael T. McCormick, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiff-appellant, Prudential Insurance Company (Prudential), appeals from the trial court’s order granting defendants’ motion for a directed verdict entered after presentation of Prudential’s case in chief. Prudential, as the subrogee of its insured, Agnes Nierman (Nierman), sought contribution from nonsettling defendants Edward Romanelli (Romanelli) and Abel Solorio (Solorio) in an underlying automobile accident negligence case.

On appeal Prudential contends that the trial court erred by requiring it to pursue the action in its own name rather than the name of its insured, Ms. Nierman, after Prudential settled with the injured parties on her behalf. It also contends that the trial court erred in granting defendants’ motion for a directed verdict.

On January 14, 1989, a multicar accident occurred in the southbound lanes on an overpass on Illinois Route 53 where the highway passes over Northwest Highway. The speed limit in this section of roadway is 55 miles per hour. At the time of the accident, the roads were slick and icy as a result of snow being on the roadway.

The first car in this four-car accident was driven by Prudential’s insured, Ms. Nierman, in the center lane of the three-lane highway (hereafter Nierman vehicle). Driving approximately two car lengths behind her in the center lane was Mr. Romanelli (hereafter Romanelli vehicle). Behind the Romanelli vehicle in the middle lane was a mini-van driven by Harvey Melamed (hereafter Melamed vehicle). His wife, Francine Melamed, was a passenger seated in the front seat of the Melamed vehicle. The fourth vehicle was driven by Mr. Solorio, in the right-hand lane about four to five car lengths behind the Melamed vehicle.

Ms. Nierman testified that she applied her brakes as she approached the point where Route 53 overpasses Route 14. She did not know that bridges ice and freeze over before roadways. When Ms. Nierman applied her brakes, she lost control of her vehicle and began to spin. She did not take notice of the cars behind her.

Mr. Romanelli testified that in an attempt to avoid the Nierman vehicle he applied the brakes and tried to change lanes; however, when he slammed on the brakes the wheels locked up. Thus, his efforts were unsuccessful and the Romanelli vehicle hit the passenger side of the Nierman vehicle. Mr. Romanelli further testified that he was travelling between 30 to 35 miles per hour and that he paid no attention to the traffic behind him.

When the Romanelli vehicle struck the Nierman vehicle, it made the Nierman vehicle spin more. In the interim, observing the accident in front of him, Mr. Melamed moved into the right-hand lane and came to a complete stop. After being struck by the Romanelli vehicle, the Nierman vehicle continued to spin, slid into the right-hand lane and struck the Melamed van.

Meanwhile, Mr. Solorio was approaching the Melamed vehicle from the right-hand lane. He testified that before the accident, he was driving about 30 miles per hour four to five car lengths behind the Melamed van when he first saw its brake lights and noticed it had stopped. Mr. Solorio then slowed down his car and looked to see if he could move into the left-hand lane; however, there were cars in the left lane which prevented him from doing so. He then applied his brakes; however, because of the snow and ice, the Solorio vehicle began to slide, which prevented him from steering the car before also striking the Melamed van. As a result of the accident, Mr. and Mrs. Melamed sustained some injury.

On May 23, 1989, Mr. Melamed filed a complaint at law against Ms. Nierman alleging negligence. On June 6, 1990, Ms. Nierman filed a third-party complaint for contribution against Mr. Romanelli and Mr. Solorio. Thereafter, Mr. Melamed filed a first amended complaint naming his wife Francine and himself as plaintiffs. They then filed their second amended complaint at law naming Ms. Nierman, Mr. Romanelli and Mr. Solorio as defendants. Following discovery, the case was continued for status, pretrial or trial to June 25, 1991.

On June 25, 1991, the cause came before the court for pretrial. The court’s order of that date ruled, inter alia, that the Melamed complaint against all defendants was dismissed pursuant to a settlement agreement between the Melameds and Ms. Nierman; that the Nierman third-party complaint for contribution against counter-defendants Romanelli and Solorio was continued; and that the releases of the Melameds were incorporated therein. Ms. Nierman also filed an amended complaint for contribution against Mr. Romanelli and Mr. Solorio pursuant to the Illinois Contribution Act. Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.

Thereafter, defendant Solorio filed a motion to strike and dismiss the Nierman complaint for contribution pursuant to section 2— 403 of the Illinois Code of Civil Procedure (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 403), for failure to name a proper party plaintiff. He alleged since Ms. Nierman’s insurer, Prudential, settled with the Melameds, Prudential had to pursue the counterclaim in its own name. The trial court granted the motion to strike and dismiss. However, on July 16, 1991, the court permitted Prudential, as the subrogee of Agnes Nierman, to file an amended complaint for contribution in the name of Prudential.

The Nierman attorneys, who also represented Prudential, filed a motion for reconsideration of the court’s order asserting that Ms. Nierman was the real party in interest pursuant to the Contribution Act and that as her insurer Prudential was not entitled to recover directly from the counterdefendants. Prudential maintained that the Nierman complaint for contribution was not a subrogation action. The motion for reconsideration was denied. Nierman’s complaint was stricken and leave was granted allowing Prudential to pursue the action in its name as the proper party plaintiff.

Trial was held on July 16 and July 17, 1991. Following the presentation of Prudential’s case in chief, defendants moved for a directed verdict. The trial court granted the motion and this appeal followed. We affirm in part, reverse in part, and remand for a new trial. Our reasons follow.

Prudential contends that the trial court erred by requiring it to pursue the contribution claim against defendants in its own name. Prudential asserts that Illinois does not allow direct actions against insurance companies as they are against public policy, for fear of an award on behalf of the tort-feasor under the “deep pockets” theory. Here, it contends, a jury might be inclined not to award an insurance company proceeds against two individually named defendants.

In the present case, contrary to Prudential’s contention in the court below, we believe it became the subrogee of Ms. Nierman pursuant to section 2(f) of the Contribution Act. (Ill. Rev. Stat. 1989, ch. 70, par. 302(f).) Section 2(f) provides in relevant part:

“Anyone who, by payment, has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full his obligation to the tortfeasor, is subrogated to the tortfeasor’s right of contribution.” (Ill. Rev. Stat. 1989, ch. 70, par. 302(f).)

Thus, Prudential became subrogated to Ms. Nierman’s right of contribution once it paid funds on her behalf to the Melameds in exchange for their general releases in the underlying negligence action.

Defendants correctly assert and we agree that Prudential was the actual party in interest as the subrogee and that based upon the record Ms. Nierman no longer had any interest in the subrogated claim. (See Blatz v. City of Rock Falls (1982), 105 Ill. App. 3d 732, 434 N.E.2d 807.) This court has held that the interest of the subrogee cannot be concealed in any proceeding brought for its benefit, but it must be either named as the plaintiff or disclosed as the real party in interest (see Shaw v. Close (1968), 92 Ill. App. 2d 1, 235 N.E.2d 830; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 403). Section 2 — 403 of the Illinois Code of Civil Procedure provides:

“Any action hereafter brought by virtue of the subrogation provision of any contract or by virtue of subrogation by operation of law shall be brought either in the name or for the use of the subrogee; and the subrogee shall in his or her pleading on oath, or by his or her affidavit if pleading is not required, allege that he or she is the actual bona fide subrogee and set forth how and when he or she became subrogee.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 403(c).

We have reviewed the record and find no mention of an argument by Prudential in reliance upon section 2 — 403. Although Prudential had the alternative of bringing the action in its own name as mandated by the trial court or for the “use of the subrogee,” absent such an argument as evidenced in the record on appeal, we cannot say the trial court erred when it required Prudential to pursue the action in its own name. Accordingly, we affirm the trial court’s ruling on this issue.

Because we reverse and remand this matter for a new trial with respect to the court’s ruling on the motion for directed verdict, we would be remiss were we not to mention that the issue concerning the proper party plaintiff may surface again. Thus, we instruct the trial court on remand to follow the dictates of section 2 — 403(c) of the Code of Civil Procedure. We believe that Prudential will meet the letter of the law where it, as subrogee, either (1) brings the action in its own name or (2) discloses in the pleadings or otherwise by oath or affidavit that it is the actual bona fide subrogee and then sets forth how and when it became the subrogee.

We now address the propriety of the directed verdict entered on behalf of defendants at the close of Prudential’s case in chief. The trial court may direct a verdict at the close of the evidence, only where all evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The trial court’s ruling on a defendant’s motion for directed verdict will not be reversed on appeal unless the verdict is contrary to the manifest weight of the evidence. See Hemken v. First National Bank (1979), 76 Ill. App. 3d 23, 394 N.E.2d 868.

On appeal, Prudential argues that sufficient evidence was presented by it, in the very least, to survive a motion for directed verdict. On the other hand, Mr. Romanelli and Mr. Solario urge that the directed verdict in their favor was entirely proper since the testimony introduced by Prudential in its case in chief overwhelmingly favored the defendants. Defendants specifically contend there was absolutely no testimony: (1) that they followed the vehicle in front of them too closely; (2) that they operated their vehicles at a rate of speed greater than what was reasonable and proper; or (3) that they failed to take adequate steps to avoid a collision.

Mr. Romanelli relies on the case of Eikey v. Rapp (1990), 205 Ill. App. 3d 46, 56 N.E.2d 1274, where the Eikey complaint alleged that defendant failed to keep a proper lookout and that she suddenly decreased the speed of her vehicle. In affirming the trial court’s grant of summary judgment, this court held that there was no factual basis to support the allegations in the complaint that defendant suddenly decreased her speed, that she was travelling faster than that which was reasonable for the conditions, or that she failed to keep a proper lookout.

We believe the Eikey case is distinguishable from the instant case. On appeal from a directed verdict, a reviewing court must examine the evidence to determine whether, as a matter of law, there is evidence in the record to prove the essential elements of the plaintiff’s case. (See Mamolella v. First Bank (1981), 97 Ill. App. 3d 579, 423 N.E.2d 204.) The evidence presented at trial revealed that Mr. Romanelli was driving his car only two cars behind the Nierman vehicle at 30 to 35 miles per hour on an icy and snowy roadway. Mr. Solorio by his own testimony also was driving about 30 miles per hour. He was the farthest away and even saw the Me-lamed brake lights, yet he stated he was unable to avoid the collision after trying to do so. On the other hand, Mr. Melamed stated that he was driving about 15 miles per hour.

The factual determinations as to whether or not the parties were travelling too close behind vehicles and whether or not the parties were driving their automobiles at a greater speed than was reasonable and proper given the weather and road conditions are questions for the jury. Where a factual dispute is disclosed, the question of a party’s due care or negligence should be given to the jury for determination. Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 449 N.E.2d 211.

Based on the foregoing, we believe Prudential’s case in chief established a factual basis to support the allegations in its complaint that defendants followed too closely the vehicles in front of them and at a rate of speed greater than what was reasonable and proper under the circumstances. In the very least, a question of fact remained for the jury, given proper instructions, as to what was reasonable under the circumstances considering that the evidence shows: the highway was icy as the result of a sleet storm or ice storm; that at least one of the defendants was driving a closer distance behind the cars in front of him than Mr. Melamed; that defendants’ cars were proceeding at a speed, although lower than the limit, greater than that of the Melamed vehicle immediately prior to the accident; and that neither defendant was able to take precautions to avoid the collision although one defendant was closer in proximity than the Melamed vehicle and the other was farther away while the Melamed vehicle was able to slow down, pull over and stop.

We find that the evidence, when viewed most favorably to Prudential and its insured, did not so overwhelmingly favor defendants that no contrary verdict based on evidence could stand under Prudential’s contribution claim. Prudential’s claim, on behalf of its subrogee, alleged negligence on the part of defendants, joint tortfeasors. In the very least, questions of fact remain to be decided by the trier of fact as to whether or not the defendants were contributorily or comparatively negligent. It is not required that a trial court’s findings of law be shown to be incorrect before its grant of motion for a directed verdict can be overturned, but, rather a directed verdict can stand only if it is impossible for a contrary verdict, based on the evidence, to stand. (See Bailey v. City of Decatur (1977), 49 Ill. App. 3d 751, 364 N.E.2d 613.) We cannot say such a situation exists here. The jury may have reached a contrary verdict after hearing all the evidence in defense of the action, having heard all the witnesses, having listened to Prudential’s rebuttal case, and having received the proper instructions on the law.

Accordingly we believe that the grant of a motion for directed verdict at the close of Prudential’s case in chief was improper and we reverse and remand to the trial court for a new trial.

Affirmed in part; reversed in part and remanded for a new trial.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    CALUMET CITY PROFESSIONAL FIREFIGHTERS ASSOCIATION et al., Plaintiffs-Appellants, v. ROBERT STEFANIAK, as Mayor of City of Calumet City, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—4128
    Opinion filed February 16, 1993.
    Rehearing denied March 10, 1993.

      Cornfield & Feldman, of Chicago (Richard J. Tapper, of counsel), for appellants.
    Vedder, Price, Kaufman & Kammholz, of Chicago (John Cassidy, Jr., and Gary A. Chamberlin, of counsel), and Thomas R. Bobak, of Calumet City, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs, Calumet City Professional Firefighters Association (the Union), Martin Bonic, and Charles Rybarczyk, brought this action for declaratory relief following Bonic’s and Rybarczyk’s layoffs from the Calumet City fire department (the department). The complaint sought a declaration of the parties’ rights and liabilities under the statutes and ordinances at issue and the rescission of Bonic’s and Rybarczyk’s notices of layoff -with reinstatement to their former positions. Defendant Robert Stefaniak was the mayor of Calumet City at the time of the layoffs, and defendant Louis Conneen was the chief of the department. Upon defendants’ motion, the circuit court dismissed the action, and plaintiffs appeal.

We affirm.

Bonic and Rybarczyk were hired by the department on March 1, 1991. In letters dated July 15, 1991, Conneen informed both men that, effective July 31, 1991, they would be “on temporary layoff status from the City of Calumet City.” Both men were informed that they would be contacted “in the event that this layoff should become unnecessary.”

On July 31, 1991, plaintiffs filed their complaint in which they alleged that defendant Conneen had acted at the direction of defendant Stefaniak. According to plaintiffs, the layoffs were illegal because Stefaniak had not followed a Calumet City council ordinance which had appropriated city funds for 27 firefighters. Plaintiffs argued that, in laying off Bonic and Rybarczyk, Stefaniak had caused the number of city firefighters to fall below the number the city council had provided in its appropriation for the fiscal year 1992. By so doing, Stefaniak failed to perform his duties faithfully by failing to follow the mandate of the appropriation ordinance, thus rendering the layoffs illegal. Plaintiffs also alleged that Stefaniak’s actions were “contrary” to the provisions of the Illinois fire and police commissioners act. The complaint, however, neglected to identify the specific provisions of the act which defendants allegedly violated. Plaintiffs did not allege any acts of bad faith on the part of defendants, any violations of their seniority status, or any right to a hearing.

In response, defendants filed a motion to dismiss under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619) in which they argued that the appropriation ordinance did not mandate or require a specific number of firefighters to be employed by Calumet City. Attached to the motion was the affidavit of Stefaniak, in which he swore that the layoffs at issue were part of a city-wide “temporary layoff” necessitated by the “financial condition of the city.” A total of 27 city employees from various departments were affected by the action. According to Stefaniak, in effecting the layoff, the City followed the Union’s own policy in which those firefighters with the lowest seniority were laid off. In this case, both Bonic and Rybarczyk had the lowest seniority in the department.

The sole issue presented here is whether defendants possess the authority to lay off Bonic and Rybarczyk. Plaintiffs posit that defendants do not and raise two arguments in support of that view. In the first argument, plaintiffs assert that Stefaniak’s actions in laying off Bonic and Rybarczyk were contrary to section 3 — 11—6 of the Municipal Code, which charges the mayor to ensure that all “ordinances are faithfully executed.” (Ill. Rev. Stat. 1989, ch. 24, par. 3 — 11—6.) Plaintiffs contend that Stefaniak failed to faithfully execute the following provision of the Calumet City appropriation ordinance:

“FIRE DEPARTMENT

* * *

70-1105 Fire Fighters (27) *** $987,511.00.”

This language, plaintiffs argue, had the effect of establishing or creating 27 individual positions of firefighter and that those 27 positions could not be abolished by the mayor. This argument is without merit. Initially, we disagree with plaintiffs’ assertion that Stefaniak “abolished” these positions. “Abolish,” in its common usage, means “to do away with wholly.” (Webster’s Third New International Dictionary 4 (1986).) Clearly, under the facts presented here, the jobs at issue have not been done “away with wholly.” A “layoff” connotes a temporary cessation of employment (see Webster’s Third New International Dictionary 1282 (1986)), and the letters received by Bonic and Rybarczyk indicate that such was the case in Calumet City. Bonic’s and Rybarczyk’s positions were not permanently dissolved, and both men possess the statutory right to reinstatement to those positions when the city’s financial condition improves. (See Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—18.) In other words, the department must first offer to reinstate Bonic and Rybarczyk to the positions before it can offer those positions to anyone else.

In any event, the position of firefighter, like that of a police officer, exists only when created by statute or by a municipal ordinance adopted by authority of the statute. (Moon v. Mayor (1905), 214 Ill. 40, 44, 73 N.E. 408.) The different municipalities of the State may, by ordinances adopted by city councils, create the position. Absent this legislative action, no such position legally exists. (Moon v. Mayor, 214 Ill. at 44; Stott v. City of Chicago (1903), 205 Ill. 281, 288, 68 N.E. 736.) An appropriation ordinance which sets forth the number of employees to be paid by the municipality does not carry the legal effect of creating the position. Bullis v. City of Chicago (1908), 235 Ill. 472, 85 N.E. 614; Moon v. Mayor, 214 Ill. at 44; Callaghan v. City of Chicago (1937), 292 Ill. App. 638, 11 N.E.2d 215 (abstract of opinion); Murphy v. City of Chicago (1937), 292 Ill. App. 638, 11 N.E.2d 215 (abstract of opinion).

In view of the foregoing, Stefaniak did not contravene the city council’s appropriation ordinance by laying off Bonic and Rybarczyk. That must be so because the appropriation ordinance cited by plaintiffs did not, in and of itself, create 27 individual firefighting positions. Moreover, plaintiffs have not pleaded the specific ordinance which creates the positions to which, they assert, Bonic and Rybarczyk must be reinstated. Such ordinances must be specially pleaded where, as here, the action or the right to the relief sought is predicated upon such ordinances. See Stott v. City of Chicago, 205 Ill. at 290-91.

We have reviewed the cases relied upon by plaintiffs in support of their position and find them to be unpersuasive in that they are factually and legally distinguishable from the present case.

In their second argument, plaintiffs contend the layoffs violated Bonic and Rybarczyk’s rights under the Illinois fire and police commissioners act (the Act) (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1— 1 et seq.). We preface our discussion of this portion of plaintiffs’ argument by noting that the Act is not intended to impinge upon a city’s inherent right to make good-faith reductions in force for solely economic reasons. (Kennedy v. City of Joliet (1942), 380 Ill. 15, 21, 41 N.E .2d 957; Hahn v. City of Harvard, Board of Fire Commissioners (1992), 237 Ill. App. 3d 860, 605 N.E.2d 95.) The Act provides two distinct procedures for the removal of a firefighter from his job. Section 10 — 2.1—17 addresses removal and discharge for cause and sets forth the formal procedure for the adjudication of charges before a board of fire and police commissioners. (See Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17.) Bonic’s and Rybarczyk’s layoffs were due to economic reasons and not due to any shortcomings or deficiencies in their performance as firefighters, which are the reasons usually associated with a discharge for cause. In view of these facts, we conclude that Bonic’s and Rybarczyk’s layoffs were not for “cause” and that the layoffs are not governed by section 10 — 2.1—17 and that section’s attendant procedural formalities.

Section 10 — 2.1—18 provides that all layoffs due to reductions in force shall comply with seniority, with those laid off given the first right to reinstatement. (See Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1— 18.) Plaintiffs contend that the mayor has no power to order a reduction in force and that only the city council may so act. We cannot agree. The statute is silent as to the procedural format to be followed in the event of a reduction in force. The statute also omits reference as to which governmental body or official has the authority to implement good-faith layoffs for economic necessity. Because of this statutory silence, we are unable to conclude that only the city council or the board of fire and police commissioners, and not the mayor, is vested with the responsibility for implementing layoffs for economic reasons.

Despite these omissions, the statute does prescribe that seniority shall prevail during reductions in force. (See Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—18.) Plaintiffs, however, do not allege that Bonic’s and Rybarczyk’s seniority rights were not recognized nor do they contend that firefighters with less seniority were kept on. Indeed, defendants have stated for the record that, upon the improvement of the city’s financial condition, Bonic and Rybarczyk would be given the first right of reinstatement, as is mandated by the Act. Accordingly, the record reflects that the Act was not violated during the reduction in force at issue.

In reviewing a dismissal of a cause of action, this court must determine whether the allegations, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action upon which relief can be granted. (Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 583 N.E.2d 561, appeal denied (1992), 144 Ill. 2d 635, 591 N.E.2d 24.) Plaintiffs’ allegations do not. Accordingly, the circuit court correctly granted defendants’ motion to dismiss.

The order of the circuit court is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE SCARIANO

text:
    DAWN MARIE DABROS, a Minor, by her Mother and Next Friend, Cheryl Dabros, Plaintiff-Appellant, v. S.Y. WANG, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—1543
    Opinion filed February 16, 1993.

      Drumke & Patterson, Ltd. (Robert B. Patterson and Danielle M. Jaeschke, of counsel), and Madigan & Getzendanner (Vincent J. Getzendanner, Jr., of counsel), both of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini and Imelda Terrazino, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Dawn Marie Dabros, by her mother, Cheryl Dabros (Cheryl), brought this medical malpractice action against defendant S.Y. Wang, M.D., for allegedly misdiagnosing and negligently treating a condition called capillary hemangioma on her left leg. A jury found for defendant; plaintiff appeals from that verdict.

PLAINTIFF’S SURGERY

Plaintiff was born on April 16, 1974, and a few days later, Cheryl noticed what she characterized as a small bruise on the side of the infant’s left leg near her knee. She testified that it looked “like someone had hit her just a little” and that there was “no size” to the mark.

When Cheryl took plaintiff to her pediatrician, Dr. Cuilini, a few weeks later, the mark had broadened, growing to about the size of a 50-cent piece, and had turned red. Within the next few months, the mark started to rise; it became discolored, and continued to grow; nevertheless, when Dr. Cuilini saw plaintiff again about two months after her birth, he told Cheryl that the mark was fine and that she should just watch it.

Dr. Cuilini examined plaintiff once again on July, 25, 1974, and Cheryl testified that at that time the mark looked like “a little round ball like a little apple,” was somewhat raised, appeared reddish in color, and contained some white or gray areas; it also had a break or ulceration in it about an inch in size which was not bleeding, but was slightly discharging pus. Dr. Cuilini decided to refer Cheryl and plaintiff to defendant for further treatment.

Cheryl took plaintiff to see defendant that same evening and informed him of the history of the mark and its persistent growth. She testified that defendant recommended immediate surgery to remove the growth from plaintiff’s leg in order to avoid the possibility of amputation because the sore was ulcerating, which could indicate the presence of cancer. Defendant informed Cheryl that some scarring might result from the surgery.

Defendant performed surgery on plaintiff the next day. He excised the entire mark from her leg and placed skin grafted from her upper left thigh over the open surgical area. He bandaged the site with a stent dressing to compress the graft against the wound to immobilize it, and then he discharged plaintiff, telling Cheryl not to touch the dressing.

During the first post-operative visit on July 31, 1974, defendant told .Cheryl that the graft seemed to be “taking” and that the excision was healing well. However, it subsequently became infected, and defendant was forced to perform a second surgery. He grafted additional skin from plaintiff’s right thigh and placed it on both the original incision and the first graft donor site. Plaintiff’s right thigh healed well, leaving little residual discoloration; her left leg, however, was extensively scarred from her knee to her upper thigh. Plaintiff testified that although the scar causes her no pain or any other functional problems, she is extremely embarrassed because of its appearance.

THE COMPLAINT

On August 5, 1985, Cheryl filed a complaint on plaintiff’s behalf against defendant which alleged that his diagnosis and treatment of a small birthmark or hemangioma on plaintiff’s left knee was negligent. Defendant answered the complaint, admitting that plaintiff had come under his care for hemangioma on her left leg, but denying all allegations of negligence on his part.

THE CONDITION

Expert testimony elicited by both parties at trial established that the growth on plaintiff’s left leg was a capillary hemangioma, which they defined as an overgrowth of capillaries (small blood vessels) that occurs on the skin. It appears as a small dot at birth, but starts to grow soon thereafter and eventually turns into a large red mark resembling a strawberry which often bleeds or ulcerates slightly. It usually goes through a growth stage for about one year and then turns white, becomes static, and ultimately degenerates, leaving a small scar at the place of ulceration. Capillary hemangiomas are present in approximately one of every eight infants, and about 85% to 90% percent of them resolve themselves within 8 to 10 years.

EXPERT TESTIMONY AT TRIAL

The first medical expert witness presented by the plaintiff, offered via a videotaped deposition, was Elvin Zook, M.D. He stated that from looking at a picture of plaintiffs leg taken immediately before her surgery, the red blotch unquestionably was a capillary hemangioma. Dr. Zook testified that the standard of care in 1974 would have been to keep the wound clean, monitor it carefully, and simply wait for it to resolve itself; he did state, however, that surgery might be appropriate in a few rare instances, e.g., where the entire wound was ulcerating or bleeding, or where the hemangioma could damage the knee joint. In this case, however, Dr. Zook opined that it was unnecessary to excise the hemangioma since it was not affecting the knee joint nor was it bleeding; further, surgery was especially inappropriate in this instance because it was an open wound which increased the likelihood of infection.

Dr. Zook also stated that while he did not think that defendant was negligent in surgically removing the wound or in grafting the skin on plaintiffs left leg, his decision to excise the hemangioma breached the applicable standard of care because if defendant had simply waited for it to resolve itself, the size of the resulting scar would have been somewhere between a dime and a 50-cent piece. Finally, Dr. Zook stated that the appearance of plaintiffs scar could be improved by approximately 75% by performing further surgical techniques.

Plaintiff next called defendant as an adverse witness, who testified that he did not know for sure what the wound was when he first examined plaintiff, and although he was familiar with capillary hemangiomas, this blemish was atypical. Defendant admitted that normally, most capillary hemangiomas resolve themselves without extensive treatment; however, he was convinced that if the mark was a hemangioma, then it was not an ordinary one because it had grown so rapidly and was ulcerating. Defendant testified that he normally does not surgically remove a capillary hemangioma unless it poses the potential for more serious injury, and that he also knew that the surgery he performed would cause a scar and, as with any surgical procedure, included the risk of infection. Nonetheless, he still recommended excising the wound for the following reasons: (1) since the wound contained so many capillaries (blood vessels), if plaintiff had scraped the wound, then it would have started to bleed, and such bleeding may have been unstoppable, thus necessitating amputation; (2) it was possible that the entire wound might have begun to ulcerate if it had not been surgically removed; (3) the wound could have engulfed plaintiff’s entire leg, perhaps resulting in more serious damage to it; and (4) there was a chance the wound could have been cancerous. Finally, defendant stated that considering the fact that two surgeries were necessary due to the infection after the first one, plaintiff’s scar was better than he expected it to be.

Defendant called as its only expert witness Martin Sullivan, M.D. He concurred with Dr. Zook in that, ordinarily, the standard of care for treating a capillary hemangioma is “watchful neglect.” However, he testified that surgery is necessary in some unusual cases, especially when the wound is located in certain areas, such as the eyelids, the anus, or in the “crease” behind one’s elbow or knee. In Dr. Sullivan’s opinion, defendant’s excision of plaintiff’s hemangioma was within the standard of care because: (1) from the pictures available, the wound appeared to be in the crease behind plaintiff’s knee joint; (2) if the first graft had “taken,” the resulting scar would have been comparable to one that would have resulted had the wound simply been allowed to heal; and (3) the hemangioma was unusual in that it was extremely large. Dr. Sullivan stated that had he been the treating physician, he might have waited a few days before removing the hemangioma to see whether it was healing; however, he could not, in retrospect, say that defendant acted negligently in opting to immediately excise the wound to prevent potentially more severe symptoms.

After hearing all of the evidence, the jury found for defendant, and plaintiff appeals from that verdict.

I

Plaintiff first asserts that the trial court erred by refusing to set aside the jury’s verdict and enter a judgment non obstante veredicto or, in the alternative, grant a new trial. It is well settled that a trial court should enter a judgment n.o.v. only if all of the evidence, viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based on the evidence could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14); and that standard also governs a reviewing court’s consideration of a trial court’s denial of a judgment n.o.v. Knight v. Haydary (1992), 223 Ill. App. 3d 564, 569, 585 N.E.2d 243, 247, appeal denied (1992), 145 Ill. 2d. 635, 596 N.E.2d 629.

Our supreme court also emphasized in Pedrick that a different standard is applied to a motion for a new trial. (Pedrick, 37 Ill. 2d at 509-10, 229 N.E.2d at 513; accord Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 35-36.) A court should set aside a jury verdict and grant a new trial only when the verdict is contrary to the manifest weight of the evidence. (Pedrick, 37 Ill. 2d at 509, 229 N.E.2d at 513; Mizowek, 64 Ill. 2d at 310, 356 N.E.2d at 36; Knight, 223 Ill. App. 3d at 573, 585 N.E.2d at 250.) A verdict will be deemed to be against the manifest weight of the evidence only if it is palpably erroneous and wholly unwarranted, clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable, and not based on the evidence. Loitz v. Remington Arms Co. (1989), 177 Ill. App. 3d 1034, 1050, 1051, 532 N.E.2d 1091, 1101, rev’d on other grounds (1990), 138 Ill. 2d 404, 563 N.E.2d 397.

Plaintiff does not quarrel with the well-established principle that where conflicting expert testimony is introduced at trial, it is the province of the jury as the trier of fact to resolve the conflict. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 260, 381 N.E.2d 279, 284; Topp v. Logan (1990), 197 Ill. App. 3d 285, 298-99, 554 N.E.2d 454, 463; Piano v. Davidson (1987), 157 Ill. App. 3d 649, 666, 510 N.E.2d 1066, 1078, appeal denied (1988), 119 Ill. 2d 574, 522 N.E.2d 1256.) Although this court is required to scrutinize the evidence in a medical malpractice action when reviewing a denial of a motion for a judgment n.o.v. or a new trial (Schuchman v. Stackable (1990), 198 Ill. App. 3d 209, 222, 555 N.E.2d 1012, 1020, appeal denied (1990), 133 Ill. 2d 573, 561 N.E.2d 708; Piano, 157 Ill. App. 3d at 665, 510 N.E.2d at 1078), we will not sit as a second jury and reweigh the evidence or reevaluate the credibility of the witnesses. Evans v. Sisters of the Third Order of St. Francis (1987), 154 Ill. App. 3d 137, 140, 506 N.E.2d 965, 967, appeal denied (1987), 116 Ill. 2d 553, 515 N.E.2d 106; Anderson v. Beers (1979), 74 Ill. App. 3d 619, 623, 393 N.E.2d 552, 556.

The case sub judice presents a classic “battle of experts” situation. (See Martin v. Zucker (1985), 133 Ill. App. 3d 982, 991, 479 N.E.2d 1000, 1006.) The jury first listened to plaintiff’s medical expert (Dr. Zook) state why he felt that defendant’s decision to excise plaintiff’s mark constituted a breach of the standard of care as it existed in 1974. It then heard defendant testify as to why he decided to surgically remove plaintiff’s hemangioma. Finally, the jury heard defendant’s expert (Dr. Sullivan) testify that he did not think that defendant’s conduct amounted to a breach of the applicable standard of care. The jury resolved this conflict in favor of the defendant, and we encounter no discernible reason in the record that requires us to disturb that resolution.

Plaintiff nevertheless urges us to set aside the jury verdict for the following reasons: (1) Dr. Sullivan’s testimony was speculative and thus cannot be used to support the jury’s verdict; (2) there were no facts to support Dr. Sullivan’s “crease” theory; (3) Dr. Sullivan’s “crease” testimony was invalid because he made no mention of it during his deposition; and (4) the jury’s verdict was based on passion and sympathy for defendant. We find all of these arguments to be meritless.

First, the fact that Dr. Sullivan could not predict with mathematical certainty what would have happened had defendant not removed the hemangioma does not render his testimony unduly speculative. While it is clear that an expert witness may not guess or state an opinion which is based merely on speculation or conjecture (Loitz, 177 Ill. App. 3d at 1051, 532 N.E.2d at 1101; Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 473, 558 N.E.2d 216, 226), the testimony of a medical expert need not be based on absolute certainty, but only a reasonable degree of medical and scientific definiteness. (Hunter, 200 Ill. App. 3d at 473, 558 N.E.2d at 226; Roman v. City of Chicago (1985), 134 Ill. App. 3d 14, 21, 479 N.E.2d 1064, 1068.) In Redmon v. Sooter (1971), 1 Ill. App. 3d 406, 274 N.E.2d 200, the court explained:

“When a doctor is asked to base his opinion on a reasonable degree of medical certainty, the certainty referred to is not that [the same] condition in the future is certain to exist or not to exist; rather the reasonable certainty refers to the general consensus of recognizing medical thought and opinion concerning the probabilities of conditions in the future based on present condition.” Redmon, 1 Ill. App. 3d at 412, 274 N.E.2d at 204.

In this case, it is plain that Dr. Sullivan’s testimony was not excessively speculative. He stated that in his judgment, based on the situation confronting defendant at the time, it was not unreasonable for him to opt to excise the hemangioma on plaintiff’s leg before further potentially more serious complications resulted. It was not necessary for him to give sworn guarantees that those complications would not occur; nor was it even necessary that he state that he would have excised the wound were he the treating physician at the time. Accordingly, it was proper for the court to allow the jury to rely on Dr. Sullivan’s opinion that defendant did not breach the relevant standard of care.

Plaintiff’s argument that no evidence in the record supports Dr. Sullivan’s opinion that defendant properly excised the hemangioma because it invaded the flex point (“crease”) behind plaintiff’s knee is also without warrant. The photo introduced as evidence by the plaintiff illustrates that the wound was at least near, if not already covering, the flex point behind her knee. The jury viewed this photograph and evidently rejected plaintiff’s assertion during closing argument that the wound did not impede the crease behind plaintiff’s knee. Accordingly, Dr. Sullivan’s opinion that surgery could have been indicated because of possible damage to the knee joint was supported by the evidence.

Plaintiff’s assertion that Dr. Sullivan’s “crease” opinion must be disregarded because he made no mention of it in his deposition is groundless as well. “The fact that a witness *** has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies.” (Converters Inc. v. Industrial Comm’n (1975), 61 Ill. 2d 218, 224, 334 N.E.2d 155, 159; see Golden v. Big Bear Foods, Inc. (1968), 102 Ill. App. 2d 237, 248, 243 N.E.2d 730, 736.) In this instance, it was for the jury to determine Dr. Sullivan’s credibility and the persuasiveness of his “crease” opinion; it is not our province to reevaluate his trustworthiness.

Finally, plaintiff’s contention that the jury’s verdict was based on passion and sympathy for defendant’s age and lack of mastery of the English language is baseless. Absent a specific showing to the contrary, we presume that the individual members of the jury faithfully performed their duties of fairness and impartiality to the best of their ability. (See Maddox v. Smith (1966), 67 Ill. App. 2d 374, 383, 214 N.E.2d 5, 9.) We find no indication whatsoever in the record that the jury’s verdict was based on anything but the evidence before it.

For all of these reasons, we affirm the trial court’s denial of plaintiff’s motions for a judgment n.o.v. and a new trial.

II

Plaintiff additionally argues that the trial court erred in refusing to instruct the jury that it may not deny or limit plaintiff’s right to damages because the injury resulted from an aggravation of her preexisting condition. Defendant responds on the following grounds: (1) that the defendant waived the issue by not objecting to the court’s refusal to accept the tendered instruction relating to aggravation of a preexisting condition; (2) that the court properly refused to give that instruction to the jury; and (3) that even if the court did err in doing so, that error was harmless.

Defendant’s waiver argument is without foundation. After the court refused plaintiff’s proposed instruction on aggravation of a preexisting injury, the following discussion took place at the jury instruction conference:

“[Plaintiff’s counsel:] Can I just state for the — you did not want to entertain argument on that issues instruction, right?

[THE COURT:] Yeah. It’s not really — I think it’s officially covered when I give it over a party’s objection or refuse it. It’s telling you that’s that — the Court doesn’t agree with you.

[Plaintiff’s counsel:] Okay.

[THE COURT:] If there’s any error, the Judge — if it goes against you or the other party, you’ll raise it in your post-trial motion.”

Generally, a party waives any objection to jury instructions when it does not object to them at the jury instruction conference. (See Saunders v. Schultz (1960), 20 Ill. 2d 301, 314, 170 N.E.2d 163, 170.) In this case, however, it is clear from the above colloquy that plaintiff’s counsel simply followed the trial court’s specific request when it did not make a formal objection to the court’s rejection of its proposed jury instruction until the post-trial stage. The trial court should not have refused to hear argument on the issue as to which of the tendered instructions he chose to give to the jury; the issue is not “officially covered” simply because the court decides, without argument from opposing counsel, that certain instructions will or will not be given. The court should have, at the very least, allowed plaintiff’s attorney to go on record with the reasons for his objection to the court’s refusal to instruct the jury on the law of aggravation of a preexisting injury, to say nothing about giving counsel an opportunity to argue otherwise. In any event, we cannot say that plaintiff waived this issue on appeal, since he merely followed the court’s direction in not substantively raising the issue until he included it in his post-trial motion.

We also hold that the trial court erred in failing to instruct the jury that it may not limit or deny plaintiff damages if it found defendant liable because the injury resulted from defendant’s aggravation of plaintiff’s preexisting condition. A trial court’s determination as to the instructions to be given to the jury will not be disturbed absent an abuse of discretion. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1088, 560 N.E.2d 969, 973.) The test for determining whether the trial court abused its discretion in instructing the jury is whether, considered as a whole, the instructions are clear enough so as to not mislead the jury and whether they fairly and accurately state the applicable law. Saunders, 20 Ill. 2d at 314, 170 N.E.2d at 170; Wille v. Navistar International Transportation Corp. (1991), 222 Ill. App. 3d 833, 839, 584 N.E.2d 425, 429, appeal denied (1992), 144 Ill. 2d 644, 591 N.E.2d 32.

In Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391, our supreme court held that the trial court erred in failing to give the jury a nonpattem instruction which informed it that damages should not be reduced because the injury was due, in part, to an aggravation of a preexisting condition. The court reasoned that since a tortfeasor is liable for all of the injuries he causes, even those that aggravate a preexisting condition, the facts of that case warranted a damage instruction which accurately reflected the fact that the plaintiff may be compensated for such injuries once liability has been found. (Balestri, 76 Ill. 2d at 455-56, 394 N.E.2d at 393.) Accordingly, the court affirmed the appellate court’s reversal of the trial court and remanded the cause on the question of damages only. Balestri, 76 Ill. 2d at 456, 394 N.E.2d at 393.

Subsequent opinions of this court have held that where the facts of the case so warrant, a damage instruction accurately stating the law regarding aggravation of a preexisting injury must be given to the jury. (Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 576, 451 N.E.2d 992, 1001; accord Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 282, 519 N.E.2d 963, 967-68.) Furthermore, in response to Balestri, the following Illinois Pattern Instruction was promulgated:

“If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff’s right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition.” (Illinois Pattern Jury Instructions, Civil, No. 30.21 (3d ed. 1990) (hereinafter IPI Civil 3d).)

We recently held that this instruction accurately states the law on aggravation of a preexisting condition in Illinois. Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 983, 562 N.E.2d 1086, 1099-1100, appeal denied (1991), 136 Ill. 2d 544, 567 N.E.2d 331.

In the case at bar, defendant does not seriously argue, nor could he, that the court was correct in refusing to instruct the jury on the law of aggravation of a preexisting condition. Plaintiff’s theory of the case was that by excising the hemangioma when he should not have, defendant aggravated her already present injury, not that he caused in any way the hemangioma itself. Accordingly, we find that the trial court erred by failing to instruct the jury on the law regarding aggravation of a preexisting condition.

Defendant nevertheless contends that since aggravation of a preexisting condition relates only to the amount of damages awarded to a successful plaintiff, the court’s error here was harmless because the jury found for defendant on the question of liability. Plaintiff responds vigorously that because the court failed to instruct the jury on the law of aggravation of a preexisting condition, it may have confused the jury on the question of liability, thus fatally tainting its verdict.

As a general rule, a judgment will not be reversed where the jury instructions are faulty unless they misled the jury and the complaining party suffered prejudice. (Villa, 202 Ill. App. 3d at 1088, 560 N.E.2d at 973; Roman, 134 Ill. App. 3d at 18, 479 N.E.2d at 1067.) Moreover, “[i]t is well established that where a defendant is found not liable, alleged errors pertaining solely to damages do not afford grounds for reversal.” Schuchman, 198 Ill. App. 3d at 231, 555 N.E.2d at 1029; see Mackey v. Daddio (1985), 139 Ill. App. 3d 604, 608, 487 N.E.2d 1167,1170.

Defendant readily admits that the instruction in question, as well as all of the reported cases in Illinois, regard the issue of aggravation of a preexisting condition solely as a measure of damages. In fact, the relevant pattern instruction expressly states that it is only applicable “[i]f you decide for the plaintiff on the question of liability.” (IPI Civil 3d No. 30.21.) Plaintiff also concedes that the court properly instructed the jury that “[i]f you decide for the defendant on the question of liability, you will have no occasion to consider the question of damages.” See Illinois Pattern Jury Instructions, Civil, No. 36.01 (2d ed. 1971).

Nevertheless, plaintiff urges that under the facts of this case, it was possible for the jury to have been confused on the question of liability. She argues that because the court instructed the jury that in order to find defendant liable, it had to find that “the plaintiff was injured” and that “the negligence of the defendant was a proximate cause of the injury to the plaintiff” (emphasis added); therefore, the jury, without the aggravation of a preexisting condition instruction, could have believed that the “injury” to which the court referred was plaintiff’s original condition. From there, she reasons that it was obvious that defendant did not cause that injury, but instead aggravated it; therefore, the jury may have thought that a verdict for defendant was proper even though he breached his duty of care and proximately caused injury to plaintiff by worsening her condition. In essence, plaintiff asks us to recognize for the first time that the aggravation of a preexisting condition instruction addresses not only the measure of damages once liability is found, but also the actual finding of liability as well.

We find plaintiff’s argument to be without merit. Regarding the question of defendant’s liability, the court instructed the jury:

“Plaintiff claims that she was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
By failing to perform adequate examination of the hemangioma on the plaintiff’s left leg;
By failing to correctly diagnose the hemangioma on the plaintiff’s left leg;
By recommending and performing surgical excision of the hemangioma on the plaintiff’s left leg when the surgery was not indicated by the then existing condition of the plaintiff.
The plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries.”

It is patent from these instructions that the jury was not required to find that defendant caused the original hemangioma; instead, had the jury found that defendant had breached the applicable standard of care, the “injury” it would have considered was not the harm caused by the original condition (the hemangioma), but instead the injury caused by defendant’s improper diagnosis and treatment of the already existing condition. We reiterate that it was nowhere suggested at trial that defendant caused the hemangioma to appear on plaintiff’s leg; therefore, it was clear that it was not possible for the jury to have been confused as to what type of injury it was required to find in order to hold defendant liable for negligently treating plaintiff. Accordingly, the court’s instruction accurately reflected the law on the question of liability.

In sum, we find that although the trial court erred in refusing to give the jury a damage instruction on the law of aggravation of a preexisting injury, that error was harmless for the reason that the jury found for the defendant on the question of liability.

For all of the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.

      The medical charts indicate that the condition was labeled as “cavernous hemangioma,” a much more serious condition; however, defendant testified that he did not make that entry.

       At the time of its removal, the growth was seven by four centimeters.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. XAVIER WATKINS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—2049
    Opinion filed February 16, 1993.
    1993. Rehearing denied March 17, 1993.

      Rita A. Fry, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, Mary Morris, and Michael R. Slovis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

For shooting two of his co-workers, defendant Xavier Watkins was charged with two counts of attempted first-degree murder, two counts of armed violence, and six counts of aggravated battery. The aggravated battery counts constituted a set of charges for each victim, alleging that defendant committed a battery which caused great bodily harm (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)), committed a battery while using a deadly weapon (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(1)), and committed a battery while on a public way (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8)). Following a bench trial, defendant was found guilty of both charges of armed violence and all the aggravated battery charges. He was sentenced to concurrent terms of imprisonment of 15 years for the armed violence offenses and 5 years for the aggravated battery charges premised on great bodily harm, on the basis that the other aggravated battery charges merged into those two.

On appeal, defendant contends (1) that his multiple convictions violate the one-action-one-conviction rule; (2) that the State failed to prove that he caused “great bodily harm” to one of the victims; (3) that in sentencing him the circuit court considered improper factors in aggravation; and (4) that his sentences were excessive and should be reduced.

At trial, Kevin Garrity testified that on May 19, 1989, he was employed as a carpenter for Madsen Construction, and that at 6:30 that morning he was sitting in a truck at a work site, talking with several co-workers. About 15 minutes later, he noticed defendant walking up the street. When he was approximately seven to eight feet from the truck, defendant pulled out a gun and shot two to three times. Garrity did not see any other weapons at that time, but stated that everyone had tools, including utility knives.

Carlos Escobar testified that he was a laborer for Madsen Construction and that after work on May 18, 1989, he went to a bar with some co-workers. Defendant arrived about 45 minutes afterwards and began arguing with Steven Carlson, the foreman of the construction crew. Defendant pushed Carlson against the wall, placed his hands around Carlson’s neck, and began choking him. After the manager of the bar broke up the fight and Carlson left the bar, Escobar asked defendant why he was fighting with Carlson. Defendant responded by punching him in the face “approximately” four times. Escobar responded by punching defendant and knocking him to the ground. Defendant then left the bar.

The next morning, at about 6:45 a.m., Escobar was standing near a co-worker’s truck, discussing the events at the bar, when he saw defendant approaching with John Jackson, who walked into a nearby park as defendant continued coming closer. Escobar noticed that defendant’s right hand was in his pants pocket. When he was about nine feet away, defendant pulled out a chrome-plated revolver. Escobar could not remember whether he had taken his work knife out of its sheath. When he saw the gun, Escobar began running away, but was struck in the back by a bullet. He fell to the ground and then saw defendant shoot his co-worker Steven Grill. Defendant was aiming at Grill’s chest, but Grill managed to swerve so that the bullet merely grazed him. Escobar then noticed blood on the left side of Grill’s shirt. Grill tried to run away while defendant shot the rest of his bullets at him. Defendant continued to pull the trigger, even after the gun was empty. Defendant then ran away, and Jackson rejoined him.

Escobar was taken to the hospital where he remained for approximately two months. He stated that he had a colostomy and that he could no longer father children. Since the shooting, he has not been able to return to work.

Robert Johnson testified that he worked for Madsen Construction and that on the morning of May 19, 1989, he was talking with his coworkers about the events at the bar the previous evening. He saw defendant approach the truck, holding his right hand in his pants pocket. When Garrity told Escobar, “I think he’s got a knife,” Escobar backed up and started to take out his work knife. Defendant then pulled out a gun. Escobar tried to run away, but defendant shot him as he crossed the street. After Escobar fell to the ground, defendant began shooting at Grill, hitting him with one shot; he then pointed the gun at Grill’s head, but he was out of bullets. Defendant then ran away.

Albert Olson testified that at around 6:30 a.m. on May 19, 1989, he was sitting in his truck talking with his co-workers. Escobar, Grill, and Tony Cervin were telling Garrity and him about the events at the bar. Someone then said “there he is” and Olson turned and saw defendant and Jackson about one-half block away. Jackson then went into a park and defendant walked toward the truck. When he was 5 to 10 feet from the truck, defendant pulled out a gun and pointed it at Escobar, Grill, and Cervin. Olson then ducked down behind the steering wheel and heard five or six shots. Although he did not see any of the shooting, Olson did see defendant aim at Grill’s head and pull the trigger after the gun was empty.

Steven Grill testified that after work on May 18, 1989, he went to a bar with some of his co-workers. About one-half hour after defendant’s arrival, Carlson and defendant started arguing and began pushing and shoving each other. Grill broke up the fight and Carlson left the bar. Defendant then offered to bet $200 that “whoever he fought that night wasn’t going to walk out of the bar.” A short time later, when defendant and Escobar began to argue, Grill hit defendant because he “was punched *** [when he] tried to get between the two [men].” The manager of the bar then asked everyone to leave.

At work the next morning, Grill was discussing the prior night’s events with his co-workers. He was worried that he might lose his job because defendant was a foreman on the crew. A few minutes later, someone noticed that defendant was approaching them with his hand in his pocket. Because they thought defendant was holding a knife, they pulled out their work knives, but put them back as soon as defendant pulled out the gun. When he was about 20 feet away from Grill, defendant began shooting at him and at Escobar and Cervin. Everyone scattered, but Grill was grazed on his left side just above the belt, causing holes in his sweatshirt and tee-shirt. Grill kept running and fell to the ground to get out of the line of fire. Defendant then came up to him, placed the gun about 18 inches from his face, and pulled the trigger. The gun was empty, however.

On cross-examination, Grill stated that he had been working with defendant for approximately two weeks prior to the shooting, and that they had had “words” twice on the job. Grill also stated that Carlson, rather than defendant, was his foreman.

The State then rested. The circuit court acquitted codefendant Jackson of all charges and denied defendant’s motion for a finding of not guilty at the end of the State’s case.

Steven Carlson testified for the defense that he was the general foreman for Madsen Construction and that on May 18, 1989, defendant arrived at the bar after everyone else. About one-half hour after defendant arrived, they began arguing about work. During the argument, defendant grabbed him by the neck and pushed him against the wall. Grill separated them, and he left the bar and went to the hotel where he shared a room with defendant. He and defendant had shared a room for a couple of months, but the room was registered in his name. Later that evening, he was sitting in the hotel bar when defendant came in and started another fight, during which defendant grabbed him by the throat and threw him to the ground.

Defendant testified on his own behalf and stated that in May 1989, he worked as a carpenter foreman for Madsen Construction and commuted from Milwaukee to the work site in Evanston for V-k months until he began renting a room with Carlson. On May 18, 1989, he arrived at the bar and began arguing with Carlson, pushing him against the wall. Escobar and Grill then grabbed him and broke up the fight. He stayed at the bar for another one-half hour because Escobar and Cervin were waiting outside for him for approximately 20 to 25 minutes. After they reentered the bar, Escobar and Grill approached him and told him that they “wanted to kick [his] ass.” At the same time, Cervin and another co-worker were taking bets as to who could beat defendant. Escobar then began “poking” his chest while Grill stood behind him and held his shoulders. After getting poked three times, he punched Escobar, and then was beaten by him. When the fight was broken up, he left the bar and went to the hotel where he was staying.

At the hotel, defendant confronted Carlson in the bar because he thought Carlson told Escobar and Grill to attack him. He grabbed Carlson and threw him to the floor. Someone called the police; when they arrived, Carlson said that he no longer wanted to share a room with defendant. Because the room was registered to Carlson, the police told defendant to remove his belongings and turn in his key. He then gathered his belongings and spent the night in a park near the work site. In order to protect himself, he took a .32 caliber revolver from his bags and placed it in his pocket. He stated that he had owned the gun for approximately 10 years and that it had only three bullets.

The next morning, defendant woke up at about 6:40 a.m. and walked to the work site with the gun still in his pocket. As he approached the site, he noticed everyone standing around a truck. When he was only 2xlz feet away from the truck, Escobar “suddenly]” appeared, brandishing a knife and saying “we have knives this time.” He reached for his gun, but had difficulty removing it from his pocket. He tried to run away, but Escobar and Grill chased him with their knives. When Escobar lunged at him with the knife, he pulled out the gun and fired at Escobar, who was only two feet away. Escobar twisted and was struck in the back. He then turned around and tried to run the other way, but ran straight into Grill. He fired a shot straight down and then one at Grill’s side. Grill turned and began to run, but he chased Grill and pointed the empty gun at his head and pulled the trigger. He stated that he did this because he was still afraid, and he hoped that he would be able to make Grill “flinch” so that he would have time to escape. He also stated that he did not arm himself with the intent to harm anyone, and that he pulled out the gun because he was fearful for his own safety.

On cross-examination, defendant stated that Escobar and Cervin told him to come outside with them after Carlson left the bar. He also stated that they were waiting outside for him only five to seven minutes, and began pushing and shoving him as soon as they reentered the bar.

The circuit court found defendant not guilty of attempted first-degree murder, but found him guilty on both counts of armed violence and all six counts of aggravated battery, specifically rejecting defendant’s self-defense theory. The court ruled that four of the counts of aggravated battery merged into the two counts charging great bodily harm.

At the sentencing hearing, the court denied defendant’s post-trial motion and heard arguments in aggravation and mitigation. The State argued that defendant should be incarcerated for a term in excess of 20 years because he had stalked two people with a gun, permanently disabled one person, struck another, and continued to fire the pistol despite the fact that it was empty. Defense counsel argued that defendant’s actions were in self-defense and that he had no prior criminal record. Defense counsel also argued that the court should not consider the evidence of Escobar’s permanent disability. Defendant spoke on his own behalf, apologizing and expressing remorse for his actions.

The court then stated that it would not consider the evidence of Escobar’s inability to have children because no medical evidence was presented. The court recognized that defendant had no prior record, but stated that it had to consider the nature of the charges. The court noted that the minimum sentence of six years was inappropriate due to the circumstances of the offense, but that the maximum sentence of 30 years was also inappropriate due to defendant’s background. The court then sentenced defendant to 15 years’ imprisonment for each armed violence conviction, and 5 years’ imprisonment for the two aggravated battery convictions, all sentences to run concurrently.

At the outset, we hold, in conformance with the agreement of the parties, that defendant’s conviction for the aggravated battery of Escobar must be vacated because it is predicated upon the same physical act as his armed violence conviction. A defendant cannot be convicted of both armed violence and the underlying felony where a single physical act is the basis of both charges. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 478-79; People v. Camden (1991), 219 Ill. App. 3d 124, 141, 578 N.E.2d 1211, 1223, appeal denied (1992), 143 Ill. 2d 641, 587 N.E.2d 1018.) Therefore, defendant’s conviction for the aggravated battery of Escobar based on great bodily harm must be vacated, because the same physical act was the basis of both convictions.

We reject defendant’s contention that because the circuit court acquitted him of attempted murder, his armed violence conviction should be vacated because the court considered his actions to be unpremeditated. Our supreme court recently rejected an identical argument when it held that a conviction for armed violence was proper even if the underlying offense was unpremeditated. See People v. Allen (1992), 153 Ill. 2d 145.

Defendant next contends that the State failed to prove beyond a reasonable doubt that he inflicted great bodily harm when he shot Steven Grill. He asserts that the evidence established that the bullet only grazed Grill’s chest and caused holes in his clothing. Defendant concedes that Grill suffered bodily harm, but argues that his injuries did not rise to the level of great bodily harm and therefore his convictions for aggravated battery and armed violence predicated on aggravated battery in causing great bodily harm must be vacated. We agree.

Infliction of great bodily harm is an essential element of aggravated battery under section 12 — 4(a) of the Criminal Code of 1961 and therefore must be proved by the State. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a).) While the law requires that the injury be graver and more serious than that required for an ordinary battery (People v. Figures (1991), 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089, 1092), it is the role of the trier of fact to determine if the injuries rise to the level of great bodily harm. (People v. Cochran (1989), 178 Ill. App. 3d 728, 738, 533 N.E.2d 558, 564.) However, when a victim merely suffers bodily harm, a conviction for aggravated battery predicated upon great bodily harm must be vacated. Figures, 216 Ill. App. 3d at 402, 576 N.E.2d at 1092.

In Figures, the defendant fired a shot which pierced^the victim’s shoe, but did not penetrate his skin. No evidence was offered that the victim bled as a result of the shot, and the victim himself testified that he received treatment at the hospital for a blood clot. Nevertheless, the circuit court found that the victim suffered great bodily harm. (Figures, 216 Ill. App. 3d at 402, 576 N.E.2d at 1092.) On appeal, we held that such a finding was not supported by the evidence and that the victim’s injuries merely constituted bodily harm rather than great bodily harm. Figures, 216 Ill. App. 3d at 402, 576 N.E.2d at 1092.

Here, defendant fired a shot at Grill’s chest, which pierced his clothing and grazed his left side. There is no question that he suffered bodily harm, which has been defined as “some sort of physical pain or damage to the body, like lacerations, bruises or abrasions.” (People v. Mays (1982), 91 Ill. 2d 251, 256, 437 N.E.2d 633, 635-36.) However, as in Figures, we do not believe that the evidence supports a finding that he suffered great bodily harm. The question centers on the injuries the victim actually received (People v. Costello (1981), 95 Ill. App. 3d 680, 684, 420 N.E.2d 592, 595), and the record here leaves substantial question regarding the extent of Grill’s injury.

Grill did not state that he bled as a result of the shooting, nor did he say that he required medical attention. His characterization of his injury as a “graze” is all that is contained in the record. The only evidence that the bullet caused him to bleed is Escobar’s testimony, which, as defendant points out, is questionable because he was lying on the ground after having been shot. Accordingly, because there is no evidence that the bullet affected Grill in any manner other than grazing his side, we vacate the conviction for the aggravated battery count predicated on great bodily harm upon Grill. Likewise, defendant’s conviction for armed violence upon Grill must be vacated, because the State failed to prove its predicate offense, which was aggravated battery based on great bodily harm. Nevertheless, because defendant was found guilty of the other aggravated battery charges naming Grill as the victim, either of which was justified by the evidence, we remand this cause for entry of judgment on either of those findings.

Defendant next contends that the circuit court improperly considered in aggravation the harm that Escobar and Grill suffered. Defendant asserts that great bodily harm is implicit in aggravated battery and was considered by the legislature when it set the penalties for the offense. The State maintains that the record reflects that the court properly considered the extent of the injuries. We agree with the State.

While a sentencing court may consider the harm caused by the defendant’s conduct (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(a)(1)), it may not consider an aggravating factor which is inherent in the offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 271-72, 497 N.E.2d 1138, 1144.) In Saldivar, our supreme court held that in a manslaughter case, a court could not consider the fact that the victim died as an aggravating factor, but could consider the circumstances of the death. The court distinguished the end result of the offense, the death, from the “force employed and the physical manner in which the *** death was brought about.” Saldivar, 113 Ill. 2d at 271, 497 N.E.2d at 1144.

In the instant case, as in Saldivar, the record indicates that the circuit court considered the extent of the injuries and the manner in which they were brought about, rather than their mere existence. The court stated that it would “consider the nature of the charges,” but only after stating that it would determine “the extent of the injuries.” Furthermore, the State’s argument in aggravation focused on the circumstances of the offense rather than the harm that was suffered. There is no basis to conclude that the circuit court relied upon anything other than proper factors when it sentenced defendant. Nor is there any basis to conclude that remandment is necessary to allow the circuit court to reconsider the sentence because of the judgments we have vacated. See People v. Donaldson (1982), 91 Ill. 2d 164, 170-71, 435 N.E.2d 477, 480; People v. Kosanovich (1979), 69 Ill. App. 3d 748, 750, 387 N.E.2d 1061, 1063; People v. Carmickle (1977), 46 Ill. App. 3d 112, 115, 360 N.E.2d 794, 797.

Defendant’s last contention is that his sentences are excessive and therefore should be reduced. Defendant argues that the circuit court abused its discretion when it failed to carefully consider the mitigating factors that he had no prior criminal background, was a high school graduate with four years of carpentry apprenticeship, and that he came from a stable home. The State responds that the 15-year sentence was proper in light of the circumstances of the offense.

A court’s imposition of sentence is a matter of judicial discretion and on appeal will not be considered excessive absent an abuse of that discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348.) Furthermore, a reviewing court will not substitute its judgment for that of the circuit court merely because it would balance the factors differently. (People v. O’Neal (1988), 125 Ill. 2d 291, 298, 531 N.E.2d 366, 369.) However, this balancing process requires careful consideration of all the factors in aggravation and mitigation, as well as the nature and circumstances of the offense. People v. Center (1990), 198 Ill. App. 3d 1025,1033, 556 N.E.2d 724, 729.

Here, the circuit court considered the circumstances of the offense, defendant’s rehabilitative potential, his age, and his background. The court concluded that the maximum sentence of 30 years’ imprisonment was inappropriate and sentenced defendant to 15 years instead. There is no indication in the record that the court failed to consider any of the mitigating factors and, in light of the circumstances of the offense, we do not believe that a 15-year sentence was excessive.

For the foregoing reasons, the judgment on the armed violence count involving Escobar is affirmed; the judgment on the aggravated battery count involving Escobar is vacated; the judgment on the armed violence count involving Grill is vacated; the judgment on the aggravated battery charge based on great bodily harm involving Grill is vacated; and the cause is remanded for entry of judgment on one of the other aggravated battery counts involving Grill.

Affirmed in part; vacated in part and remanded.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OTIS EDWARDS, Defendant-Appellant.
    First District (5th Division)
    Nos. 1—90—3345, 1—90—3402 cons.
    Opinion filed February 19, 1993.
    Rehearing denied July 7, 1993.

      James J. Cutrone, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Andrew R. Dalkin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendant Otis Edwards, as well as codefendants Lennon Hayes and Rodney Wilson, were charged by way of indictment with first-degree murder, conspiracy, attempted armed robbery, and armed violence. Defendant alone was charged with the offense of solicitation. On October 20, 1990, following a bench trial, defendant was acquitted of all offenses except solicitation. Codefendant Hayes was acquitted of all charges, and Rodney Wilson was convicted of second-degree murder. Defendant now appeals his conviction for solicitation alleging lack of probable cause for the grand jury to indict, insufficiency of the evidence to convict, constructive amendment of the indictment, and violation of collateral estoppel and double jeopardy principles (based on the simultaneous acquittal of conspiracy and conviction of solicitation). For the reasons which follow, we affirm the judgment of the trial court.

The evidence adduced at trial established that shortly after 1 a.m. on July 10, 1989, Larry Henderson (L.C.) was shot and killed in the hallway of his apartment building located at 4159 West Jackson Boulevard in Chicago. The occurrence witnesses whose trial testimony was relevant to charges against defendant Otis Edwards (O.T.) include Timothy Washington, Kenneth Wells, and Mose Hollins. Washington testified that on July 10, 1989, at approximately 1 a.m., he and several friends including the victim were seated on the front steps of a building located at 4159 West Jackson. Four people approached the fence enclosing the front yard: Lennon Hayes (nicknamed Lenny Pooh), Rodney Wilson (nicknamed Wookie), Mose Hollins and a fourth unidentified individual. Wilson, Hollins, and Hayes entered the yard and Washington stood up, giving Wilson his seat next to Henderson. Wilson whispered something to Henderson, who stood up and walked to the apartment building. Subsequently, Wilson fired two shots, striking Henderson in the back and'killing him.

In addition to the above sequence of events, Washington also testified that prior to the shooting, he heard Henderson ask, “Is that O.T.’s car?” At this point Washington stated that he saw defendant’s black Lincoln town car. However, on cross-examination Washington admitted that what he had seen was “an ordinary black Lincoln,” and that while he knew that defendant had a black Lincoln, he did not know the license number of that specific car. Furthermore, he could not see who was actually driving the automobile at issue.

Kenneth Wells also testified that he was present in the front yard of the apartment building at 4159 West Jackson on July 10, 1989, at approximately 1 a.m. Like Washington, he observed Wilson, Hollins, and Hayes enter the yard and Wilson walk up and sit next to Henderson. He saw Wilson whisper something in Henderson’s ear and heard Henderson say “that’s O.T.’s car.” Wells further testified that he then observed defendant’s black Lincoln at the bus stop. However, on cross-examination Wells admitted that he could not say for sure that it was defendant’s car, as he did not know defendant’s license number, did not notice the license number of the car, and did not see the driver. Wells confirmed Washington’s account of the shooting which ensued.

Hose Hollins also testified at trial. While he admitted being at the 4159 West Jackson building at approximately 1 a.m. on July 10, 1989, he denied seeing defendant at that time. (Hollins did admit, however, that defendant had been at that location earlier in the evening (around 9 or 10 p.m.) looking for his daughter.) Hollins was then impeached with both his written pretrial statement and his testimony before the grand jury. In his written statement, Hollins acknowledged that just about 12:20 a.m., defendant had pulled up to the bus stop right in front of the apartment building at 4159 West Jackson. At this time, Lennon Hayes got in the car with defendant and drove off. They came back about 15 minutes later. At this point, Hayes called Wilson over to the car. Wilson leaned into the car and talked to defendant. After defendant was done talking, Hayes and Wilson walked over to where Henderson was seated on the front steps. The shooting then occurred in the manner described by the previous two witnesses. Hollins’ grand jury testimony was identical to his written statement.

Defendant also gave a written statement of the events which occurred on July 10, 1989. In his statement, he admitted that at 12:30 a.m. he saw Lennon Hayes and that Hayes got into his car and they began to drive around. As they drove, Hayes and defendant were talking about more money for Hayes, who made a living selling dope for defendant. They saw Henderson outside the 4159 building and then drove to the “spot” (a dope house at 4129 West Jackson) where they saw Wilson. Defendant told Hayes to call Wilson over to the car. When Wilson came, defendant said: “You go get your money from him [Larry Henderson] and you do the same thing to him as he did to you.” (Defendant explained that he meant that Wilson, Hayes, and Hollins should go and rob Henderson and rough him up the way Henderson had previously done to Wilson.) After this, Hayes got out of the car and, with Wilson, walked back to the house where Henderson was sitting. Defendant then pulled around to the bus stop because he wanted Henderson to see him and to know that Wilson was his worker, and “not to mess with him anymore.” Shortly thereafter, Wilson ran out of the yard and said, “I killed him.”

The trial judge considered the substance of defendant’s confession along with the testimonies of Washington, Wells, and Hollins. Based on this evidence, he found defendant guilty of solicitation to commit robbery and sentenced him to four years in the Illinois Department of Corrections.

On appeal, defendant contends that the trial court erred in denying his pretrial motion to dismiss the indictment, as it was the prosecutor, and not the grand jury, who found probable cause to believe that defendant committed the offense of solicitation. In support of this theory, defendant argues that the grand jury heard no evidence that would support the return of the indictment charging defendant with the offense of solicitation. The evidence heard by the grand jury in this regard consisted solely of the testimony of Detective James Capesius, which consisted of the following questions and answers:

“Q. You were assigned to investigate the alleged first degree murder, attempt armed robbery, armed violence, solicitation to commit murder committed by OTIS EDWARDS, LENNON HAYES and RODNEY WILSON against Larry Henderson on or about July 10, 1989.

A. I was.

Q. Did your investigation show Larry Henderson was alive prior to 0112 hours on July 10, 1989?

A. Yes, it did.

Q. Did your investigation show Larry Henderson was in the area of 4159 West Jackson in Chicago, Cook County at the time?

A. Yes. It did.

Q. And were defendants Otis Edwards, Lennon Hayes and Rodney Wilson also present at that time?

A. They were.

* * *

Q. Did your investigation also show that one of the codefendants ordered the other two codefendants to rob the victim, Larry Henderson?

A. That’s correct.

Q. Did your investigation show that defendants — did your investigation show that one of the codefendants ordered the other codefendant to rob the victim at gunpoint?

A. That’s correct.”

On appeal, defendant maintains that based on the above testimony, no rational person could have concluded that it was he as opposed to Wilson or Hayes who committed the offense of solicitation. Illinois case law provides that “an indictment will not be quashed unless all the witnesses were incompetent or all the testimony upon which it was found was incompetent.” (People v. Jones (1960), 19 Ill. 2d 37, 41, 166 N.E.2d 1, 3.) The Jones court further defines incompetent testimony as testimony given by a witness disqualified by law (such as one disqualified because of complete mental derangement). The testimony at bar was certainly not disqualified by law and therefore not incompetent. Furthermore, the Illinois Supreme Court has indicated that where there is some evidence in support of the criminal conduct charged, the court would decline to inquire into the adequacy of that evidence. (People v. Rodgers (1982), 92 Ill. 2d 283, 288, 442 N.E. 2d 240, 243, citing People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629; see also People v. Shaw (1985), 133 Ill. App. 3d 391, 400, 478 N.E.2d 1142, 1150 (in which the appellate court found the standard established in Rodgers had been met because the evidence submitted to the grand jury did “tend to connect” the defendant to the theft at issue).) This evidence which connects may be any direct or circumstantial evidence from which an inference of criminal conduct can be derived. (Rodgers, 92 Ill. 2d at 290.) Based on the evidentiary standard thus enunciated by Illinois courts, we find that the testimony presented to the grand jury was “some evidence” which “tended to connect” defendant to the criminal offense charged. The grand jury did not err in returning a true bill and the trial judge correctly refused to dismiss the indictment.

Defendant further contends that the evidence submitted by the State (namely, defendant’s confession and the corroborating testimonies of Washington, Wells, and Hollins) is insufficient to prove the offense of solicitation. It is well settled that a person may not be convicted upon his confession alone; the State must prove the corpus delicti by independent evidence. (See People v. Perfecto (1962), 26 Ill. 2d 228, 229, 186 N.E.2d 258; see also People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427.) However, this independent or corroborating evidence need not alone establish the crime beyond a reasonable doubt. “Once the required proof has been established and if the evidence of a criminal act corroborates the facts contained in the defendant’s confession, then that evidence may be considered together with the confession in determining whether the corpus delicti was sufficiently proved.” People v. Stevens (1989), 188 Ill. App. 3d 865, 878, 544 N.E .2d 1208, 1217.

Following the aforementioned standards, we must determine whether the testimonies of the three occurrence witnesses sufficiently corroborate defendant’s confession to provide the corpus delicti of the offense of solicitation. Statutory authority indicates that “[a] person commits solicitation when, with intent that an offense be committed, other than first degree murder, he commands, encourages or requests another to commit that offense.” ( Ill. Rev. Stat. 1989, ch. 38, par. 8— 1.) Defendant was charged solely with “encouraging” the commission of the offense of armed robbery. He was convicted of soliciting the commission of the lesser included offense of robbery. The evidence considered by the trial judge consisted of defendant’s confession (in which he admitted telling Wilson to “go and do to L.C. what he did to you”) as well as the grand jury testimony of Hose Hollins and the trial testimony of Timothy Washington and Kenneth Wells. Although defendant argues that this record when viewed as a whole leaves an abiding and substantial doubt as to his guilt, we cannot agree. Defendant’s confession which implied that he wanted the victim robbed and roughed up is substantially corroborated by statements of the other witnesses, not only placing defendant and his car at the scene, but also confirming the conversation between defendant and Wilson as well as the shooting which followed. Even though, as defendant points out, none of the witnesses knew his license plate and therefore could not positively identify the car, nonetheless they all saw a black Lincoln at the crime scene and knew that defendant drove such a car. This testimony combined with defendant’s statement is enough to establish that it was “circumstantially” defendant’s car and that defendant was present in the area of the incident immediately before the incident. Furthermore, although no witnesses overheard the conversation between defendant and Rodney Wilson, they all testified to the fact that Wilson approached defendant and that the conversation occurred. As the trial judge found, the fact that Wilson did approach and shoot the decedent shortly after some words were spoken with defendant corroborates defendant’s own account of the conversation in which he encouraged the robbery which ensued. Thus we find that the trial and grand jury testimonies of Washington, Wells and Hollins substantially corroborate the confession of defendant, himself, and provide sufficient evidence upon which to base a finding of guilty.

Defendant also argues that his fundamental right to be tried on a charge actually made has been violated because his conviction rests upon a constructive amendment of the charging instrument. In the instant action, defendant was charged by indictment with the statutory offense of solicitation, specifically by means of encouragement. (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 1.) The language at issue in the indictment provided as follows:

“OTIS EDWARDS committed the offense of SOLICITATION in that HE, WITH THE INTENT THAT THE OFFENSE OF ARMED ROBBERY BE COMMITTED AGAINST LARRY HENDERSON, ENCOURAGED RODNEY WILSON AND LENNON HAYES TO COMMIT THAT OFFENSE IN VIOLATION OF CH. 38, sec. 8-1 (38-18-2) OF THE ILLINOIS REVISED STATUTES 1985.”

While the solicitation statute referred to above may be violated (and charged) alternatively by “commanding, encouraging, or requesting” another to commit an offense (People v. Cole (1981), 98 Ill. App. 3d 309, 424 N.E.2d 393), defendant was charged solely with encouraging Rodney Wilson to commit the offense of armed robbery. The essence of defendant’s argument is that the State offered no proof based on the encouragement theory, but provided evidence only on the alternative theory of solicitation by request which was never charged, thereby impliedly amending the indictment and violating defendant’s constitutional and statutory rights. Although we recognize that a conviction may not be affirmed because the State may have proved at trial that the defendant committed an offense under an alternative but uncharged theory (People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654), a careful review of the record reveals that such a conviction did not occur in the case at bar.

The evidence of how the solicitation occurred consists of the statements of Hollins and the confession of defendant. Hollins indicated (in his testimony before the grand jury) that he had seen defendant and Hayes in defendant’s automobile near the victim’s house about one-half hour before the shooting. Hollins also saw Wilson walk over to the car, have a conversation with defendant, and subsequently go over to the apartment building where he shot Henderson. Defendant’s own statement (which confirmed Hollins’ account of the incident) indicated that he had told Hayes to call Wilson over to the car, which Hayes did. Defendant wrote that he then told Wilson: “You go get your money from him and you do the same thing to him as he did to you.” By this, defendant meant that Wilson should rob the victim and rough him up a bit. The confession also established Hollins, Wilson, and Hayes worked for defendant selling drugs and acting as lookouts when necessary. Based on the above testimonies, the trial judge found that defendant was guilty of solicitation in that he had “urged” Wilson to commit robbery. Nowhere in his findings does the judge mention the word “request.” Webster’s definition of “urge” appears as follows:

“(1) to present in an earnest or pressing manner: press upon attention: insist upon: plead or allege in or as if in argument or justification: advocate or demand with importunity *** [;] (2) to undertake the accomplishment of with energy, swiftness, or enthusiasm *** [;] (3) a: to press the mind or will of: ply with motives, arguments, persuasions, or importunity ***[;] b: to be a compelling, impelling, or constraining influence upon: serve as a motivating impulse or reason for *** [;] (4) a: to force or impel in an indicated direction or to an indicated place.” (Webster’s Third New International Dictionary 2521 (1986).)

The definition of “encourage” is: (1) to give courage to: inspire with courage, spirit or hope; hearten; (2) to spur on: stimulate, incite; and (3) to give help or patronage to: foster. This same source provides that one of the synonyms of urge is “egg,” which suggests encouraging, stimulating, or whetting a will or inclination that is hesitant, laggard, or dull such as in “egged me to borrow the money.” (Webster’s Third New International Dictionary 747 (1986).) Based on this authority, the meaning of “urge” (which the trial court determined that defendant did) is almost identical to the meaning of the word “encourage” as charged in the indictment, thus defeating defendant’s argument that he was convicted on a theory that was not charged.

Defendant finally maintains that his conviction for solicitation should be reversed because it violates the principles of collateral estoppel and double jeopardy. The doctrine of collateral estoppel provides that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in the particular lawsuit. (Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189.) The Illinois Supreme Court has expanded the doctrine of collateral estoppel and applied it to contrary determinations of fact in the same proceeding. (People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.) These principles of collateral estoppel are consistent with both United States and Illinois constitutional safeguards against double jeopardy (that no person shall be twice put in jeopardy for the same offense).

In order to evaluate defendant’s collateral estoppel argument, a brief review of the charges and findings of the trial court is in order. All three defendants in the instant action (Edwards, Hayes, and Wilson) were charged with first-degree murder, attempted armed robbery, conspiracy, and armed violence. Edwards alone was charged with the offense of solicitation, as the evidence showed that he said to the others, “Go get your money, do to him what he did to you.” After trial, Hayes was acquitted of all charges, Wilson was convicted of second-degree murder, and defendant was convicted of solicitation. In his collateral estoppel argument, defendant emphasizes the fact that neither codefendant was convicted of an offense involving a criminal purpose. He argues that for this reason, the principles of collateral estoppel bar his own conviction for encouraging (soliciting) a criminal purpose. What defendant neglects to note is that the offense of solicitation is complete when the principal offense is commanded, encouraged or requested with the intent that it be committed. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.) Whether or not the actual crime took place is meaningless under the applicable statute. (Ill. Rev. Stat. 1991, ch. 38, par. 8 — 1.) Defendant’s offense was complete when the words at issue were spoken, and such a finding is neither inconsistent with nor barred by judicial determinations reflecting lack of criminal purpose of the co-defendants.

For the aforementioned reasons, we affirm the judgment of the circuit court.

Affirmed.

GORDON, P.J., and MURRAY, J., concur.

      ‘Although defendant cites to various rape and murder cases to support his insufficiency of the evidence arguments, we do not find these authorities instructive.

      defendant argues that based on the appellate court decision in People v. Cole (1981), 98 Ill. App. 3d 309, 424 N.E.2d 393, solicitation by encouragement requires that the (criminal) idea originate with the perpetrator (in this case Wilson) while solicitation by request would require that the (criminal) idea originate with the individual actually charged with soliciting (in this case, defendant). Although we find this argument intellectually interesting, it really has no bearing on our determination of the issue at bar as the language and facts of our case do not require us to draw a distinction between the words “encourage” and “request.” Furthermore, the Cole court’s distinction as noted by defendant appears in the argument by the State and is not part of the official holding.

      This verdict was rendered in a separate jury trial.

      Second-degree murder involves acting under a sudden and intense passion and negligently or accidentally killing someone. Ill. Rev. Stat. 1991, ch. 38, par. 9 — 2.

      defendant also advances the argument that based on double jeopardy and collateral estoppel principles, his acquittal of the conspiracy charge bars his conviction for solicitation. Such reasoning is flawed, as it fails to take into account the fact that the elements of these offenses are not identical (conspiracy requires a substantial step towards the commission of the offense) so that an acquittal on one does not bar a conviction on the other.